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301 of the Communications Act of 1934 (``Act''), as amended,1 by
operating an unlicensed radio station without Commission
authorization. We conclude that Nextel Communication, Inc., is
apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
·
2. On February 16, 2000, the Commission received a
telephone complaint from Crescent Paging, Inc., who operates a
trunking system in the New Orleans area. The complainant
reported that there was a digitally modulated signal on one of
their frequencies, 863.2125 MHz, that was causing interference to
their customer's communications. Commission records indicated
that Crescent Paging, Inc., was the only authorized licensee in
the local area.
3. Still on February 16, 2000, a Commission agent, using a
mobile digital direction finding (``MDDF'') vehicle, observed
these digital radio transmissions and determined the origin of
these signals to be an antenna on a tower located at 4428 Wabash
Street, Metairie, Louisiana. There was no evidence of a
Commission authorization for a transmitter operated on this
frequency at this location. Commission records indicated that
there are only two other licensees in the State of Louisiana:
Nextel Communications with eight sites in other locations within
the state, and CMRS Systems, Inc., with one site in north
Louisiana. Because the tower appeared to have only one user and a
cable reel with Nextel's name was found at the base of the tower,
the agent contacted Nextel's local frequency manager to determine
if they were responsible for these transmissions. After checking
their records, Nextel admitted that they had mistakenly
programmed the wrong frequency into a transmitter at this
location and that Nextel had no authorization to use the
frequency 863.2125 MHz in Metairie, Louisiana.
4. On February 17, 2000, the Commission's New Orleans
Office issued to Nextel License Holdings 1, Inc., an unlicensed
operation warning letter for operation of transmitting equipment
on 863.2125 MHz at 4428 Wabash Street, Metairie, Louisiana
without Commission authorization. On March 17, 2000, the New
Orleans Office received a letter from Nextel Communications,
Inc., in response to the warning letter. In that letter, Robin
Glenny, Regulatory Manager for Nextel, stated, ``As previously
discussed with your office, Nextel did operate on the frequency
863.2125 MHz due to an administrative error in the list of
authorized frequencies at the I-10 Service Road South site.''
III. DISCUSSION
5. Section 301 of the Act sets forth generally that no
person shall use or operate any apparatus for the transmission of
energy of communications or signals by radio within the United
States except under and in accordance with the Act and with a
license.2
6. Based on the evidence before us, we find that on
February 16, 2000, Nextel Communications, Inc., willfully3
violated Section 301 of the Act by operating radio transmission
apparatus without a Commission authorization.
7. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997),
recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture Policy
Statement''), the base forfeiture amount is $10,000 for
unlicensed operation. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set
forth in Section 503(b)(2)(D) of the Act, which include the
nature, circumstances, extent, and gravity of the violation(s),
and with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and other such matters
as justice may require.4 Nextel Communications' violation was
willful, and resulted in interference to communications of a
licensed station. Nextel Communications, as a Commission
licensee, should fully understand the requirements of the Act.
Applying the Forfeiture Policy Statement and statutory factors to
the instant case, a $10,000 forfeiture is warranted.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,5 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,6 Nextel Communications, Inc., is hereby
NOTIFIED of their APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violating Section
301 of the Act7.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules,8 within thirty days of the release date
of this NOTICE OF APPARENT LIABILITY, Nextel Communications,
Inc., SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation
of the proposed forfeiture.
10. Payment of the forfeiture may be made by credit card
through the Commission's Credit and Debt Management Center at
(202) 418-1995 or by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, to
the Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. X3262006
11. The response if any must be mailed to Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau - TPSD,
NAL/Acct. No. X3262006, and must include the NAL/Acct. No.
X3262006.
12. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices; or (3) some
other reliable and objective documentation that accurately
reflects the petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for the
claim by reference to the financial documentation submitted.
13. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554.9
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested Nextel Communications, Inc., 2001 Edmund Halley Drive,
Reston, VA 20191.
FEDERAL COMMUNICATIONS COMMISSION
James C. Hawkins
District Director, New Orleans Office,
Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 47 U.S.C. § 301
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or omission
of any act, means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
4 47 U.S.C. § 503(b)(2)(D). See also Forfeiture Policy
Statement, 12 FCC Rcd at 17100-01 (discussion of upward and
downward adjustment factors).
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, 1.80.
7 47 U.S.C. § 301
8 47 C.F.R. § 1.80.
9 See 47 C.F.R. § 1.1914.