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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number: EB-06-PO-058
Nextel License Holdings 4, Inc.
) NAL/Acct. No. 200632920002
Licensee of Station WPOH402
) FRN: 0002049880
Portland - Salem, Oregon
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 10, 2006
By the Resident Agent, Portland Resident Agent Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Nextel License Holdings 4, Inc. ("Nextel"), licensee of station
WPOH402, apparently repeatedly violated Section 1.903(a) of the
Commission's Rules ("Rules") by operating a bidirectional amplifier
("BDA") on a frequency not authorized by the license WPOH402. The
signal emanating from the BDA caused interference to the Washington
County, Oregon, 911 emergency communications system. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that Nextel is apparently liable for a forfeiture in
the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On May 11, 2006, the Enforcement Bureau's Portland Resident Agent
Office received an interference complaint from the supervisor of a
Washington County Consolidated Communications Agency ("WCCCA"),
licensee of trunked specialized mobile radio ("SMR") station WNSK475,
in Beaverton, Oregon, which is an integral part of the 911 system for
Washington County, Oregon. The supervisor informed the agent that
WCCCA had shut down its operations on 813.2375 MHz and 810.2375 MHz on
WNSK475 due to interference on those frequencies. The supervisor noted
to the Portland agent that the users of those frequencies are
typically police officers and firefighters. The supervisor also
informed the agent that the WCCCA had been able to track, for a short
distance, the interference when beginning at a repeater operated as
part of station WNSK475, located on Council Crest Drive in Portland,
Oregon.
3. On May 12, 2006, the Portland agent monitored 813.2375 MHz at three
locations surrounding the repeater on Council Crest Drive. The agent
was unable to detect the interference at that time on that frequency.
4. On May 16, 2006, the Portland agent monitored 810.2375 MHz and was
able to capture intermittent interference to that frequency at the
Council Crest Drive location. The agent was also able to capture the
same level of interference at three other repeater locations operated
as part of station WNSK475.
5. On May 19, 2006, the Portland agent again monitored 810.2375 MHz and
located the interfering signal to a BDA at the Gardiner Middle School,
Oregon City, Oregon. Officials at the school informed the Portland
agent that the BDA had been installed by Wireless Applications
Consulting, Inc. ("Wireless Applications"), a contractor for Nextel.
The agent then conducted "on-off" tests with the supervisor at WCCCA
and the principal of the Gardiner Middle School and confirmed that the
source of the interference to the WCCCA 911 system was the spurious
emissions emanating from the BDA on and around 810.2375 MHz. After
being informed by the agent of the effects of the interference on the
WCCCA 911 system, the school principal contacted Nextel and then
unplugged the BDA.
6. On May 23, 2006, the Portland agent contacted Nextel and was informed
that the BDA at the Gardiner Middle School was operated as part of the
station WPOH402 license. A review of the Commission's databases
revealed that Nextel is the licensee of SMR station WPOH402, and that
the frequencies associated with station WPOH402 are 816.0 - 816.5 MHZ
and 861.0 - 861.5 MHz.
7. On May 25, 2006, Nextel requested that the agent reinspect the BDA at
the Gardiner Middle School. The agent met with an engineer from
Wireless Applications, and a representative from WCCCA, and observed
that new coaxial cable had been connected to the BDA. The engineer
also calibrated the BDA to remove the spurious emissions. The WCCCA
representative indicated that these actions resolved the interference
to the WCCCA 911 system.
III. DISCUSSION
8. Section 503(b) of the 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
9. Section 1.903(a) of the Rules requires that stations in the Wireless
Radio Services must be used and operated only in accordance with the
rules applicable to their particular service, and with a valid
authorization granted by the Commission. On May 16, 2006, and May 19,
2006, a Portland agent determined that interference was occurring on
810.2375 MHz to the WCCCA 911 system. On May 19, 2006, the agent
determined that the source of the interference on 810.2375 MHz was a
BDA operated as part of station WPOH402, licensed to Nextel. The BDA's
operation on 810.2375 MHz was not authorized by the WPOH402 license.
This violation occurred on more than one day, therefore, it was
repeated. Based on the evidence before us, we find Nextel apparently
repeatedly violated Section 1.903(a) of the Rules by operating its SMR
station, WPOH402, on 810.2375 MHz, a frequency not authorized by its
license.
10. 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, the
base forfeiture amount for using an unauthorized frequency is $4,000.
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. In this case, the operation of
the BDA was terminated after the agent informed the Gardiner School
official, who then communicated the information to Nextel, concerning
the interference caused by the BDA's operation. The Commission has
stated in the past that a licensee is expected to correct violations
when they are brought to the licensee's attention and that such
correction is not grounds for a downward adjustment in the forfeiture.
In addition, we are troubled that such interference occurred to vital
public safety communications for more than a week without being
discovered by the licensee. As the use of signal boosters and BDA's
become more prevalent by wireless licensees seeking to enhance their
coverage areas, we caution those same licensees that they must ensure
that the operation of such equipment complies with the Commission's
Rules, and the terms of their Commission authorizations. 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 forfeiture of $4,000.
IV. ORDERING CLAUSES
11. 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, Nextel License Holdings 4,
Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of four thousand dollars ($4,000) for violations of
Section 1.903(a) of the Act.
12. 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 License Holdings
4, Inc., SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
13. 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. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Portland Resident
Agent Office, P.O. Box 61469, Vancouver, Washington 98666-1469 and
must include the NAL/Acct. No. referenced in the caption.
15. 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.
16. 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, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
17. 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 Nextel License Holdings 4, Inc., at
its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Binh Nguyen
Resident Agent
Portland Resident Agent Office
Western Region
Enforcement Bureau
47 C.F.R. S 1.903(a).
For the purposes of our Rules, we find that the BDA in this case falls
under the definition of a "signal booster" which is defined as a "device
at a fixed location which automatically receives, amplifies, and
retransmits on a one-way or two-way basis, the signals received from base,
fixed, mobile, and portable stations, with no change in frequency or
authorized bandwidth. A signal booster may be either narrowband (Class A),
in which case the booster amplifies only those discrete frequencies
intended to be retransmitted, or broadband (Class B), in which case all
signals within the passband of the signal booster filter are amplified."
47 C.F.R. S 90.7.
47 U.S.C. S 503(b).
Upon inspection, the agent found that the BDA in question had an FCC ID
number of OIWCBDA8009001W65, and that Dekolink Wireless, Ltd. had been
issued a grant of equipment authorization for this BDA model by the
Commission on January 26, 2005.
Pursuant to Section 90.219(e) of the Rules, a wireless radio service
licensee authorized to operate radio systems in the frequency bands above
150 MHz "is given authority to operate signal boosters without separate
authorization from the Commission. Certificated equipment must be employed
and the licensee must ensure that all applicable rule requirements are
met." 47 C.F.R. S 90.219(e).
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'repeated', when used with reference to the
commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871 (2002).
Additionally, a licensee is required to operate on the frequency stated in
its authorization. Dominic DeNaples, 19 FCC Rcd 12303 (EB 2004).
Wireless radio service "[l]icensees employing . . . signal boosters as
defined in S 90.7 are responsible for correcting any harmful interference
that the equipment may cause to other systems." 47 C.F.R. S 90.219(f).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 1.903(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission