**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

**Nextel Communications, Inc.** ) File No. EB-00-OR-027

)

Reston, Virginia ) NAL/Acct.No. X3262006

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

### Released: April 25, 2000

By the Enforcement Bureau, New Orleans Office:

**I.** **INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture, we find that
    Nextel Communication, Inc., apparently violated Section 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**

II. 

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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., willfully[^3] 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 Act[^7].

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 12^th^ 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 12^th^ 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.