Click here for Adobe Acrobat version
Click here for Microsoft Word version

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.


                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )        File Number EB-05-TP-196
Nextel License Holdings 1, Inc.  )      NAL/Acct. No. 200632700001
Licensee of Station WPSW213      )
Reston, VA                       )                   FRN 002050078


                                                Released: January 
                                                         17, 2006

By the District Director, Tampa Office, South Central Region, 
Enforcement Bureau:


      1.  In this Notice of Apparent Liability for Forfeiture 
 (``NAL''), we find that Nextel License Holdings 1, Inc. 
 (``Nextel''), licensee of station WPSW213, in Pinellas County, 
 Florida, apparently willfully  violated an Enforcement Bureau 
 order to conduct certain equipment tests, pursuant to the 
 authority provided by the Communications Act of 1934, as 
 amended (``Act''),1 and the Commission's Rules (``Rules'').2  
 We conclude, pursuant to Section 503(b) of the Act,3 that 
 Nextel is apparently liable for a forfeiture in the amount of 
 seven thousand dollars ($7,000).


      2.  On July 26, 2005, the Tampa Field Office of the Federal 
 Communication Commission's (``Commission'') Enforcement Bureau 
 (``Tampa Office'') received a complaint of an interfering 
 signal that drifted between 898 and 899 MHz.  On July 27, 2005, 
 agents from the Tampa Office used radio direction finding 
 techniques to determine that the source of the interfering 
 signal was located on a tower with FCC Antenna Structure 
 Registration (``ASR'') #1030418.  Nextel and Cingular are the 
 only two licensees located at the tower. 

      3.  On July 28, 2005, at 10:00 a.m., the agents met with a 
 Nextel RF engineer at their site in Pinellas County, FL.  The 
 Nextel engineer confirmed with his equipment that the 
 interference on 898.6 MHz was emanating from the site but 
 stated that he did not have any channels in operation near that 
 frequency at the site.  The agents requested the Nextel 
 engineer to perform a short on/off test to verify whether the 
 interference was caused by their station.  The Nextel engineer 
 refused to turn the station off for an on/off test, stating 
 that he was not authorized to turn the station off.  The agents 
 advised that the test was necessary to determine the source of 
 the interfering signal and requested that he immediately 
 contact his supervisor to obtain permission to conduct the 
 test.  At approximately 11:36 a.m., the agents spoke with the 
 engineer's supervisor.  The supervisor stated that, he too, did 
 not have the authority to shut down the site during the day.  
 He stated that Nextel's official policy was that they do not 
 shut down any site during the day.  He further stated that his 
 engineer advised him that their equipment was operating 
 normally.  He asserted that Nextel had 48 hours to initiate 
 corrective action per Commission policy and that they were 
 being very cooperative by sending someone out within 24 hours.  
 Finally, he stated that he would contact the Vice President or 
 their legal department to follow-up, because he did not have 
 the authority to turn off the site.  The agents reminded him 
 that this would be a simple on/off test lasting for 
 approximately two seconds.  The agents also advised that if 
 Nextel did not follow their orders during the inspection they 
 would face a possible forfeiture.  Later, at 2:46 p.m., the 
 supervisor advised the agents that he had talked with his legal 
 department and they advised him to not shut off the site for 
 testing.  He stated that they would be testing later that night 
 at 11:00 p.m. and invited the agents to accompany them at that 
 time.  At approximately 11:30 p.m., the agents determined that 
 Nextel was not the source of the interference after Nextel 
 conducted the on/off test.

      4.  On the morning of July 29, 2005, the agents contacted 
 Cingular, which sent an engineer to the site by 10 a.m.  The 
 engineer immediately shut down Cingular's system for the on/off 
 test as ordered by the agents and complied with all other agent 
 directives.  The engineer determined that Cingular's system was 
 the source of the interfering signal.


      5.  Section 503(b) of the Communications Act of 1934, as 
 amended (``Act''), provides that any person who willfully or 
 repeatedly fails to comply substantially with the terms and 
 conditions of any license, or willfully or repeatedly fails to 
 comply with any of the provisions of the Act or of any rule, 
 regulation or order issued by the Commission thereunder, shall 
 be liable for a forfeiture penalty.  The term ``willful'' as 
 used in Section 503(b) has been interpreted to mean simply that 
 the acts or omissions are committed knowingly.4
      6.  Section 303(n) of the Act states in relevant part that 
 the Commission shall ``have authority to inspect all radio 
 installations associated with stations required to be licensed 
 ... to ascertain whether in construction, installation, and 
 operation they conform to the requirements of the rules and 
 regulations of the Commission ...''  Section 90.439 of the 
 Rules states that ``all stations and records of stations in 
 [the Private Land Mobile Radio Services] shall be made 
 available for inspection at any reasonable time and any time 
 while the station is in operation upon reasonable request of an 
 authorized representative of the Commission.''  Section 
 0.314(d) of the Rules also states that Commission field 
 personnel may require ``special equipment and program tests 
 during inspections or investigations to determine compliance 
 with technical requirements specified by the Commission.''  On 
 July 28, 2005, duly authorized agents of the Commission, 
 operating under delegated authority, directed Nextel to conduct 
 a short on/off test during an official inspection to determine 
 the source of an interfering signal.  Nextel refused to comply 
 with the agents' orders at the time of the request.5  

      7.  Based on the evidence before us, we find that Nextel 
 apparently willfully violated an Enforcement Bureau order by 
 refusing to conduct on/off tests of its transmitter.6  This 
 order was made by an agent operating under delegated authority 
 and made during the course of an inspection and investigation, 
 authorized by the Act and the Rules,  

      8.  There is no base forfeiture amount for refusing to 
 conduct a requested test during an inspection.  We conclude, 
 however, that this violation is similar to a violation that 
 involves failing to permit inspection, which, pursuant to The 
 Commission's Forfeiture Policy Statement and Amendment of 
 Section 1.80 of the Rules to Incorporate the Forfeiture 
 Guidelines, (``Forfeiture Policy Statement'') and Section 1.80 
 of the Rules, carries a base forfeiture amount of $7,000 for 
 each such violation.7  Failure to perform tests requested 
 during an inspection effectively negates the value of the 
 inspection, because it prevents the agents from obtaining 
 necessary information from the inspection.   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 violations, and with respect to the violator, the degree of 
 culpability, and history of prior offenses, ability to pay, and 
 other such matters as justice may require.8  Applying the 
 Forfeiture Policy Statement, Section 1.80, and the statutory 
 factors to the instant case, we conclude that Nextel is 
 apparently liable for a $7,000 forfeiture.

      9.  Accordingly, IT IS ORDERED that, pursuant to Section 
 503(b) of the Communications Act of 1934, as amended, and 
 Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's 
 Rules,9 Nextel Holdings 1, Inc., is hereby NOTIFIED of this 
 thousand dollars ($7,000) for violation of Section 0.314(d) of 
 the Rules.10

      10.      IT IS FURTHER ORDERED that, pursuant to Section 
 1.80 of the Commission's Rules within thirty days of the 
 release date of this Notice of Apparent Liability for 
 Forfeiture, Nextel Holdings 1, Inc., SHALL PAY the full amount 
 of the proposed forfeiture or SHALL FILE a written statement 
 seeking reduction or cancellation of the proposed forfeiture.

      11.      Payment of the forfeiture must be made by check or 
 similar instrument, payable to the order of the Federal 
 Communications Commission.  The payment must include the 
 NAL/Acct. No. and FRN No. referenced above.  Payment by check 
 or money order may be mailed to Federal Communications 
 Commission, P.O. Box358340,Pittsburgh, PA 15251-8340. 
 Payment by overnight mail may be sent toMellon 
 Bank/LB358340,500 Ross Street, Room 1540670, Pittsburgh, PA 
 15251. Payment by wire transfer may be made to ABA 
 Number043000261, receiving bankMellon Bank, and account 

      12.      The response, if any, must be mailed to Federal 
 Communications Commission, Enforcement Bureau, South Central 
 Region, Tampa Office, 2203 N. Lois Avenue, Suite 1215, Tampa, 
 FL 33607 and must include the NAL/Acct. No. referenced in the 

      13.      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 
 ("GAAP"); 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.  

      14.      Requests for payment of the full amount of this 
 Notice of Apparent Liability for Forfeiture under an 
 installment plan should be sent to: Associate Managing 
 Director, Financial Operations, 445 12th Street, S.W., Room 
 1A625, Washington, D.C. 20554.11

      15.      IT IS FURTHER ORDERED that a copy of this Notice 
 of Apparent Liability for Forfeiture shall be sent by Certified 
 Mail, Return Receipt Requested, and regular mail, to Attention:  
 Robin J. Cohen, Nextel Holdings 1, Inc., 2001 Edmund Halley 
 Drive, Reston, VA 20191.

                              FEDERAL COMMUNICATIONS COMMISSION

                              Ralph M. Barlow
                              District Director 
                              Tampa Office, South Central Region
                              Enforcement Bureau


1 47 U.S.C.  303(n), 403.
2 47 C.F.R.  0.314(d), 90.439.
3 47 U.S.C.  503(b).
4 Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies to violations for which forfeitures are assessed under 
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 or any rule or regulation of the Commission authorized 
by this Act....''  See Southern California Broadcasting Co., 6 
FCC Rcd 4387 (1991).
5 We note that the interference resolution procedures before, 
during and after band reconfiguration set forth in Section 90.674 
of the Rules apply to non-cellular licensees and enhanced special 
mobile radio licensees.  47 C.F.R.  90.674.  These procedures in 
no way limit the broad inspection and investigative authority of 
the Commission.
6 See SBC Communications Inc., Forfeiture Order, 17 FCC Rcd  7589 
(2002) (violation of Enforcement Bureau  order to submit a  sworn 
written response).
7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 
47 C.F.R.  1.80.
8 47 U.S.C.  503(b)(2)(D).
9 47 U.S.C.  503(b), 47 C.F.R.  0.111, 0.311, 0.314, 1.80. 
10 47 C.F.R.  0.314(d).
11 47 C.F.R.  1.1914.