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


In the Matter of                 )
                                )
Western Wireless Corporation     )    File No. EB-02-TS-659
and                              )    NAL/Acct. No. 200332100004
WWC Holding Co., Inc.,           )    FRN 0003764719
Licensee of Cellular Radio       )
Station KNKN343,                 )
CMA583 - North Dakota 4 -        )
McKenzie RSA

           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  May 6, 2003                Released:  May 12, 2003

By the Commission:  Chairman Powell issuing a separate statement.

                         I.   INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(``NAL''), we  find that  Western  Wireless Corporation  and  its 
wholly  owned  subsidiary,  WWC  Holding  Co.,  Inc.   (``WWC''), 
cellular radio licensee in CMA583  North Dakota 4 - McKenzie  RSA 
(collectively ``Western''), apparently  willfully and  repeatedly 
violated Section  301  of  the Communications  Act  of  1934,  as 
amended (``Act''),1  by  operating radio  transmitting  equipment 
from an unauthorized location  in Medora, North Dakota  (``Medora 
Site'' or  ``Medora Tower'').   Specifically, Western  unlawfully 
constructed and  continues  to  operate a  facility  that  has  a 
significant environmental  effect  without  obtaining  Commission 
authorization following  preparation of  an Environmental  Impact 
Statement (``EIS'').2  We conclude, pursuant to Section 503(b) of 
the Act, that Western  is apparently liable  for a forfeiture  in 
the amount of two hundred thousand dollars ($200,000).3

     2.   Western's  unlawful  operation  here  stems  from   its 
failure to  comply  with the  Commission's  environmental  rules.  
Continued unlawful operation may result in additional enforcement 
action, e.g.,  increased  forfeitures, initiation  of  a  license 
revocation proceeding, or both.  In this regard, we order Western 
to provide a sworn statement within 30 days regarding its plan to 
cease operation  from the  Medora Site  or bring  that site  into 
compliance with our environmental rules.  We also remind  Western 
of its obligation to file an Environmental Assessment (``EA'') if 
any of its actions in response  to this NAL or subsequent  orders 
may have a significant effect on the environment.  

                          II.  BACKGROUND

     3.   Under the Commission's rules implementing the  National 
Environmental  Policy  Act  of  1969,  as  amended,  (``NEPA''),4 
licensees are required to assess proposed facilities to determine 
whether the facilities may  significantly affect the  environment 
as  defined  in   Section  1.1307  of   the  Commission's   Rules 
(``Rules'').5  The rules provide that licensees must prepare  and 
submit to the  Commission an  EA for an  action that  may have  a 
significant environmental  effect.6   This includes  actions  for 
which no pre-construction  authorization is otherwise  required.7  
In light  of  the  Commission's obligations  under  the  National 
Historic  Preservation  Act  of  1966,  as  amended  (``NHPA''),8 
Section 1.1307(a)(4) of the Rules  requires that a licensee  must 
prepare and submit to the Commission an EA if a planned  facility 
may affect  one  or  more  properties  listed,  or  eligible  for 
listing, in the National  Register of Historic Places  (``NRHP'') 
(``Historic  Properties'').9   If  the  Commission  finds   after 
submission of  an EA  that  a proposed  action  will not  have  a 
significant environmental effect, it will  issue a finding of  no 
significant impact (``FONSI'') and process the application.10  If 
a proposed action  will have a  significant environmental  effect 
and the applicant does not choose to amend its application,11 the 
Commission will not grant  the application unless the  Commission 
first completes an EIS.12

     4.   In August 1999, Western constructed a 180-foot monopole 
tower on a bluff overlooking Medora, North Dakota, for use by WWC 
in connection with its operation  of Station KNKN343 in CMA583  - 
North  Dakota  4  -  McKenzie.   In  November  1999,  the   State 
Historical Society  of  North  Dakota  (``Historical  Society''), 
which is the State  Historic Preservation Officer (``SHPO'')  for 
North   Dakota,   submitted    a   letter    to   the    Wireless 
Telecommunications Bureau (``WTB'')  regarding the tower.13   The 
letter states that Western's  tower adversely affects  properties 
which are  listed in  the National  Register of  Historic  Places 
and/or the  State  Register  of Historic  Places.14   The  letter 
indicates that the tower affects the following nearby  properties 
through a visual  intrusion into their  setting:  the Chateau  de 
Mores State  Historic  Site, the  de  Mores Packing  Plant  State 
Historic Site, the  Theodore Roosevelt Maltese  Cross Cabin,  the 
Peaceful Valley Ranch, and  various other historic properties  in 
and around Medora. Several of the Historic Properties are  within 
one quarter mile  of the tower15  and the tower  is in open  view 
from all of these sites.16  

     5.   In December 1999,  WTB informed  Western Wireless  that 
Western's  tower  ``may  have  an  adverse  effect  on   historic 
properties . .  . .''17   The Bureau also  informed Western  that 
``until the requirements of the Commission's environmental  rules 
are met, ``construction and  operation'' of the facilities  ``may 
be in  violation of  the Commission's  environmental rules''  and 
``[a] company violating these rules may be subject to forfeitures 
. . . .''18   The Bureau also directed  Western to meet with  the 
SHPO.

     6.   Western continued to operate at the site.  For  several 
years, WTB  worked with  Western and  the Historical  Society  to 
attempt to resolve the  matter informally.  These efforts  having 
proved unsuccessful, WTB referred  the matter to the  Enforcement 
Bureau (``EB'') for  possible enforcement  action.19  On  October 
17, 2002,  EB sent  a  letter of  inquiry (``LOI'')  to  Western, 
requesting information  concerning  Western's efforts  to  assess 
whether  the  tower  might  have  a  significant  effect  on  the 
environment  and  why  it  did  not  submit  an  EA  and  undergo 
environmental review prior to constructing the tower.20   Western 
submitted a response to  the LOI on November  1, 2002.21  In  its 
response to  the LOI,  Western states  that it  complied in  good 
faith with  the  Commission's  rules prior  to  constructing  its 
tower.  Western claims  that it  is now able  to provide  ``high-
quality''  cellular  service  to  Medora  and  portions  of  I-94 
adjacent to Medora.    Western argues that prior to  construction 
of the tower, the Governor of North Dakota requested that Western 
provide  cellular  service  in  Medora  for  the  Western  States 
Governors'  Conference.   According  to  Western,  the  lack   of 
cellular coverage highlighted  the need for  cellular service  in 
Medora, and with the  support of the Mayor  of Medora, it  sought 
ways to  improve cellular  coverage in  the area.   Prior to  the 
submission of a permit application for the current tower,  argues 
Western, it worked with the City and consulted with the  National 
Park Service to develop  a set of three  alternative sites for  a 
possible tower.   Western contends  that  the City  selected  the 
third alternative, which is the  current location, and that  this 
land  was  made  available  by  the  Theodore  Roosevelt   Medora 
Foundation,  a  local   historic  preservation  group.    Western 
indicates also that the City  selected the tower location as  the 
alternative farthest from any  historic properties without  being 
located within the national park, and that according to Western's 
engineer, the nearest historic site to the tower is approximately 
 mile  away.   Western states  that  it submitted  a  ``City  of 
Historic Medora  Zoning  -  Development  Permit  and  Application 
Form'' (``Application'') for  consideration by  the City  Council 
proposing  a  cellular  communications  facility.   Western  also 
indicates that  it submitted  a scale  drawing of  the tower  and 
tower site with its application. 

     7.   Western claims  that in  reviewing zoning  applications 
such as Western's, the City Council is charged with examining the 
possible effects of any proposed construction upon the historical 
integrity of the  City.  Western  states that,  under the  City's 
Zoning Articles, the City Council  is directed ``to regulate  all 
facets of construction  to preserve the  historical integrity  of 
the City of Medora,'' and  ``to prevent structures which  detract 
from the  aesthetic  harmony,  style,  form,  color,  proportion, 
texture or  materials  of  the  district.''22   Further,  Western 
claims that  the  Zoning  Articles state  that  ``[i]n  order  to 
protect the City's historical integrity, the entire City and  the 
areas under  its  zoning  jurisdiction  are  hereby  zoned  as  a 
Historical Integrity  District.''23   Western  states  that  this 
includes  the  site  where  it  constructed  its  tower.  Western 
indicates that  its  zoning  application  was  placed  on  public 
notice, the  community  was given  five  days in  which  to  file 
comments against the proposed tower construction, and no comments 
were received.   Western  states that  subsequently,  the  Zoning 
Board unanimously approved its application on June 1, 1999.  

     8.   Western asserts that it applies the criteria set  forth 
in the Commission's rules to determine whether a proposed  action 
may have a significant effect  on the environment.  Western  also 
states that one of these criteria  states that an EA is  required 
if a proposed  facility ``'may affect'  a historical property  of 
national significance.''24 Western  adds that  although the  rule 
does not  explicitly  prescribe  how  licensees  must  make  this 
assessment, a note following the rules suggests that  ``inquiries 
also may be made to  the appropriate State Historic  Preservation 
Officer,'' and  thus  such inquiry  is  one option  available  to 
licensees.25  Western contends  that in light  of the  foregoing, 
and particularly the city's review and approval, it believed  the 
tower  to  be  categorically  excluded  from  FCC   environmental 
processing on  historic preservation  grounds.26  Western  states 
that after  its  tower  was  constructed,  it  learned  that  the 
Historical  Society  had  raised  concerns  with  the  Commission 
regarding the  effect  of  the  tower  on  properties  listed  or 
eligible for listing in  the NRHP.  Western  claims that when  it 
became aware of such concerns it undertook an extensive effort to 
obtain public comment  and offered  various mitigation  measures, 
but that none  of these  proposals has been  satisfactory to  all 
parties.  Western also states that it remains willing to  prepare 
an EA upon Commission request.27

     9.   On January  14, 2003,  the  Enforcement Bureau  sent  a 
second LOI  to  Western,  requesting it  to  explain  under  what 
authority it believes it  may provide service  from its tower  in 
Medora.  In addition, Western was directed to explain what  steps 
it took to comply with Section 1.1307(a)(4) of the Rules and what 
efforts it made to determine whether the Chateau de Mores, the de 
Mores Packing Plant, the  Theodore Roosevelt Maltese Cross  Cabin 
and the Peaceful  Valley Ranch  are listed, or  are eligible  for 
listing, in  the NRHP.28   Western submitted  a response  to  the 
second LOI on February 3,  2003.29  Western indicates that  under 
Section  22.165(c)  of   the  Rules,  a   licensee  may   operate 
``additional transmitters  at additional  locations on  the  same 
channel or channel block as  its existing system'' without  prior 
Commission approval if certain conditions are met.

     10.  Western contends that although its five year build  out 
period in the  McKenzie RSA  expired before  construction of  the 
Medora Tower, the  service area  boundary of  that site  remained 
within Western's  authorized  Cellular  Geographic  Service  Area 
(``CGSA'').  Also, Western argues  that its environmental  review 
under Sections 1.1301 through 1.1319 of the Rules indicated  that 
construction and operation of  the Medora site  would not have  a 
significant environmental effect.   Western also  states that  it 
relied on  the  City  Council's  approval  process  to  determine 
whether its  tower would  affect  historic properties  listed  or 
eligible for listing in the NRHP.  Western claims, that with  the 
exception of the Peaceful  Valley Ranch, the historic  properties 
listed in the Commission's second  LOI, as well as several  other 
historic properties, are located in areas under the City's zoning 
jurisdiction.  Western  claims  that  potential  impacts  on  the 
Peaceful Valley Ranch, located approximately five miles from  the 
tower, had not previously been raised as an issue by any parties. 
30  Western notes that  a complete listing  of properties in  the 
NRHP is available online, but argues that the focus of its review 
has been whether its tower affected any of these sites.  Finally, 
Western summarizes the information it provided in response to the 
first LOI. 

                         III.   DISCUSSION

     11.  Section 22.165 of  the Rules  states in  part that  ``a 
[Public  Mobile   Services]  licensee   may  operate   additional 
transmitters at  additional  locations  on the  same  channel  or 
channel block  as its  existing  system without  obtaining  prior 
Commission approval'' if  certain conditions are  met.31  One  of 
the  conditions  that  must  be  met  is  that  the  ``additional 
transmitters must not have  a significant environmental  effect'' 
under Sections 1.1301 through  1.1319 of the Rules.32  Similarly, 
under Section 1.947(a) of the Rules, ``[a]ll major  modifications 
[of wireless licenses], as defined in  1.929 of [the Rules] .  . 
. ,  require  prior Commission  approval.''33   Section  1.929(a) 
classifies the  following as  a  ``major'' modification  for  all 
services: ``[a]pplication or  amendment requesting  authorization 
for a facility that would have a significant environmental effect 
as defined by  1.1301 through 1.1319 of the rules . . . .''34 

     12.  Under Section 1.1312(b)  of the  Rules, an  EA must  be 
submitted to  and  ruled  on  by  the  Commission  prior  to  the 
initiation of construction  if a  proposed facility  that is  not 
otherwise subject to pre-construction authorization ``may have  a 
significant  environmental   impact.''35   Section   1.1307(a)(4) 
specifies as one criterion of potential significant environmental 
effect  ``[f]acilities   that   may  affect   districts,   sites, 
buildings,  structures  or   objects,  significant  in   American 
history, architecture, archeology,  engineering or culture,  that 
are listed, or are eligible for listing, in the National Register 
of  Historic  Places.''36   Where  approval  of  an   application 
requiring an EA would have a significant environmental effect and 
a FONSI therefore cannot be  issued, Section 1.1305 of the  Rules 
requires  the  preparation  of   a  Draft  Environmental   Impact 
Statement (DEIS) and Final Environmental Impact Statement  (FEIS) 
(collectively referred to as EISs) prior to Commission action.37

     13.  Here, Western's construction  of the  Medora Tower  not 
only may have   had a  significant environmental  effect but,  in 
fact, did  have and  continues  to have  such  an effect.  It  is 
undisputed that Western constructed its tower near, and in  plain 
view of, sites that are listed,  or eligible for listing, in  the 
NRHP, including the Chateau de Mores State Historic Site, the  de 
Mores  Packing  Plant  State  Historic  Site,  and  the  Theodore 
Roosevelt Maltese Cross  Cabin.  It is  also undisputed that  the 
Historical Society did  not conclude prior  to construction  that 
the  tower  would  not  have   an  adverse  effect  on   Historic 
Properties.  Therefore,  we  conclude that  construction  of  the 
tower may  have  had  a significant  environmental  effect  under 
Section 1.1307(a)(4) of the Rules.38  Our conclusion is supported 
by the fact that  the Historical Society,  which is the  relevant 
SHPO, concluded  after the  fact that  the tower  has an  adverse 
effect on  historic  properties.   Consequently,  at  a  minimum, 
Commission approval following  the filing of  an EA was  required 
prior to construction  and operation.  As  a result, contrary  to 
Western's assertion, it was required to prepare and submit to the 
Commission an EA, and receive Commission authorization, prior  to 
the construction of its tower and operation from that location.39      

     14.    Moreover,  in  this  instance not  only  was  Western 
required to file an EA and obtain Commission authorization  prior 
to construction, but because  the constructed tower actually  has 
significant environmental  effects,  it  was  required  to  await 
completion  of  an  EIS.40  Based  on  the  Historical  Society's 
recommendation,  other   documents  in   the  record,   and   our 
independent assessment,  we find  that the  Medora Tower  has  an 
adverse effect on at least four sites listed in the NRHP -  Saint 
Mary's Church, the  Medora Doll  House, the  Old Billings  County 
Courthouse, and the  de Mores  Packing Plant  Ruins -  and on  at 
least one eligible site, the Maltese Cross Cabin. With respect to 
each  of  these   sites,  all   of  which   are  located   within 
approximately one half mile  or less of the  tower, the tower  on 
the bluff  presents  a modern  intrusion  that looms  over  these 
Historic Properties,  thus introducing  an obtrusive  incongruous 
element into a  setting that otherwise  retains largely the  same 
feel that it had  at the time the  structures were built.  Hence, 
under Section 800.5(a)(1)  of the ACHP  Regulations, 36 C.F.R.   
800.5(a)(1),41 the  tower  has  an  adverse  effect  on  Historic 
Properties.   

     15.  In view of our finding that Western's Medora tower  not 
only may have, but has had  and continues to have, a  significant 
environmental effect, we  reject Western's argument  that it  has 
authority under  Section 22.165  of the  Rules42 to  operate  its 
tower.  Specifically, Section 22.165 provides that licensees  may 
operate additional  transmitters for  existing systems  only  if, 
inter alia, the additional transmitters do not have a significant 
environmental effect.43  Thus, under  Section 22.165, a  licensee 
may not operate additional transmitters without prior  Commission 
approval if  its  action  may have  a  significant  environmental 
effect.  Because  Western's tower,  in  fact, has  a  significant 
environmental effect,  it could  not  have met  the  Commission's 
requirements  for  authorization  without  prior  approval  under 
Section 22.165 of  the Rules. In  addition, Western has  violated 
Section 1.947(a) of the Rules,44 which required Western to secure 
prior Commission approval of its construction of the Medora Tower 
because that  tower  ``would  have  a  significant  environmental 
effect'' and  is, therefore,  a major  modification of  Western's 
license under Section 1.929(a)(4)  of the Rules.45 Thus,  Western 
constructed the Medora  Tower and  continues to  operate at  this 
site without Commission approval.  Accordingly, we conclude  that 
Western apparently willfully and repeatedly violated Section  301 
of the  Act by  operating radio  transmitting equipment  from  an 
unauthorized location. We note that this violation has  continued 
into the one-year limitations period for a forfeiture.46  

     16.  The fact  that the  City Council  and others  may  have 
considered historic preservation issues, or that Western may have 
worked cooperatively with the  WTB and others  to try to  resolve 
the problem after construction and operation of the Medora tower, 
has no bearing on  the underlying violation  in this case,  which 
occurred before any  such cooperative efforts  and has  continued 
since.  In particular, we note  that the Zoning Board's  approval 
of Western's application is irrelevant to whether the tower has a 
significant environmental  effect under  the Commission's  rules.  
Section 1.1311(c)  of  the Rules  states  that an  EA  should  be 
accompanied with evidence of site approval obtained from local or 
Federal land use authorities,  thus recognizing that such  zoning 
approval does not preclude the need for an EA (or, in appropriate 
cases, an EIS).47 Further, Section 1.1311(e) provides that an  EA 
need not be  submitted if another  Federal Government agency  has 
responsibility for deciding whether a proposed facility will have 
a significant environmental effect,  thus recognizing that  state 
or local environmental review does  not replace the need for  FCC 
or other federal environmental review.48  

     17.  Similarly, our finding that Western is in violation  of 
the Act and is apparently  liable for forfeiture is not  affected 
by Western's claim that it offered to file a post-construction EA 
with the Commission and that Commission staff discouraged such  a 
filing.   The  rules  require  Western  to  file  an  EA   before 
construction of a facility,  such as the  Medora Tower, that  may 
significantly affect  the  environment.49  Accordingly,  a  post-
construction EA would  not in itself  end Western's violation  of 
those rules.  Moreover, because this tower, in fact, does have  a 
significant impact on the  environment, the filing  of an EA  for 
the existing tower would not have led to a FONSI that could  have 
ended  the  violation.   Finally,  even  if  Western  would  have 
benefited from the  filing of an  EA but  chose not to  do so  in 
reliance on the staff, such reliance was at Western's risk.50

     18.  Because   the   Medora   Tower   has   a    significant 
environmental effect under  the Commission's  rules, Western  was 
required to obtain Commission  approval following preparation  of 
an EIS  prior to  construction of,  and operation  at, the  site. 
Moreover, because  the construction  may have  had a  significant 
environmental effect,  Western was  required to  file an  EA  and 
obtain a FONSI prior to construction and operation. Thus, Western 
did not have authority to operate its tower under Sections 22.165 
or 1.947 of the Rules,51 and its continued unauthorized operation 
of its tower violates Section 301 of the Act.  

Forfeiture Amount

     19.  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 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.52  The term ``willful'' as used in  Section 
503(b) has  been interpreted  to  mean simply  that the  acts  or 
omissions are committed knowingly.53  The term ``repeated'' means 
that the  violation occurred  on more  than one  day.54   Section 
503(b)(2)(B) of the  Act authorizes  the Commission  to assess  a 
forfeiture of  up to  $120,000  for each  violation by  a  common 
carrier, or each day of a continuing violation, up to a statutory 
maximum of $1,200,000 for a single  act or failure to act.55   In 
determining the appropriate forfeiture  amount, we must  consider 
the factors  enumerated  in  Section  503(b)(2)(D)  of  the  Act, 
including ``the nature, circumstances, extent and gravity of  the 
violation, and,  with  respect to  the  violator, the  degree  of 
culpability, any history of prior  offenses, ability to pay,  and 
such other matters as justice may require.''56

     20.  The  Commission's  Forfeiture   Policy  Statement   and 
Amendment of  Section 1.80(b)  of the  Rules to  Incorporate  the 
Forfeiture Guidelines  (``Forfeiture  Policy  Statement'')57  and 
Section 1.80 of the Rules sets a base forfeiture amount of $4,000 
for  operation   at  an   unauthorized  location.    However,   a 
significant upward  adjustment is  justified in  this case  since 
Western's violation continued  for three and  a half years  after 
WTB informed Western  that the tower  ``may have'' a  significant 
environmental effect,  and  continues to  this  date.   Western's 
tower has had and continues  to have a significant  environmental 
effect on Historic Properties.58   We therefore consider this  to 
be a very serious instance of a Section 301 violation for which a 
sizable increase in the base  forfeiture amount under the  upward 
adjustment criteria contained in Section 1.80 and the  Forfeiture 
Policy  Statement  is  warranted.59   Accordingly,  applying  the 
Forfeiture Policy Statement and statutory factors to the  instant 
case, we  conclude  that  Western  is  apparently  liable  for  a 
$200,000 forfeiture.

     21.  It is  important  that  Western  not  be  permitted  to 
continue  to  benefit  from  its  failure  to  comply  with   the 
environmental rules.  Accordingly, Western is hereby directed  to 
file, within  30  days  of  the release  of  this  NAL,  a  sworn 
statement describing its plans to  cease operation at its  Medora 
Tower  site  or  bring  that   site  into  compliance  with   our 
environmental rules.   The statement  must be  filed either  with 
Western's response  to this  NAL, or  separately if  it does  not 
respond (e.g., if it pays  the proposed forfeiture).  Failure  to 
cease operation will  constitute an  apparent further  continuing 
violation  that  will  subject  Western  to  possible   increased 
enforcement action,  e.g.,  higher forfeitures  and/or  potential 
revocation of its underlying license for the community.  We  note 
that simply applying  for authorization or  applying for  Special 
Temporary Authority (``STA''), or proposing a remedial plan would 
not bring Western into compliance and would not insulate  Western 
from further enforcement action for operation prior to receipt of 
authorization.  Finally, should Western  plan any changes to  its 
facilities or service in the Medora area in response to this  NAL 
or  subsequent  Commission  orders,  we  remind  Western  of  its 
obligation under Section 1.1308(a) of  the Rules60 to file an  EA 
if any of those changes may significantly affect the  environment 
under Section 1.1307(a) of the Rules.61

                          IV.  CONCLUSION

     22.  Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of  the Act,  and  Section 1.80  of the  Rules,62  Western 
Wireless  Corporation,  is  hereby   NOTIFIED  of  its   APPARENT 
LIABILITY FOR A FORFEITURE in the amount of two hundred  thousand 
dollars ($200,000) for willfully and repeatedly violating Section 
301 of the Act.

     23.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Rules, within thirty days of the release date of this  NOTICE 
OF APPARENT LIABILITY, Western Wireless Corporation SHALL PAY the 
full amount of the  proposed forfeiture or  SHALL FILE a  written 
statement seeking  reduction  or  cancellation  of  the  proposed 
forfeiture.

     24.  IT IS  FURTHER  ORDERED THAT,  within  30 days  of  the 
release of  this Notice  of  Apparent Liability  for  Forfeiture, 
Western file a  sworn statement in  accordance with paragraph  21 
above.

     25.  Payment of  the forfeiture  may be  made 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 must  include 
the  FCC  Registration  Number   (FRN)  and  the  NAL/Acct.   No. 
referenced in the caption. 

     26.  The response, if any,  and the statement referenced  in 
paragraph  21  above,  must  be  mailed  to  the  Office  of  the 
Secretary, Federal  Communications Commission,  445 12th  Street, 
S.W.,  Washington,  D.C.  20554,   ATTN:  Enforcement  Bureau   - 
Technical  and  Public  Safety  Division  and  must  include  the 
NAL/Acct. No. referenced in the caption.

     27.  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.

     28.  Requests for payment of the full amount of this  Notice 
of Apparent Liability  under an installment  plan should be  sent 
to: Chief,  Revenue and  Receivable  Operations Group,  445  12th 
Street, S.W., Washington, D.C. 20554.63

     29.  Under the Small Business Paperwork Relief Act of  2002, 
Pub L. No.  107-198, 116 Stat.  729 (June 28,  2002), the FCC  is 
engaged in  a two-year  tracking process  regarding the  size  of 
entities involved  in forfeitures.   If you  qualify as  a  small 
entity and  if you  wish to  be  treated as  a small  entity  for 
tracking purposes, please  so certify  to us  within thirty  (30) 
days of this  NAL, either in  your response  to the NAL  or in  a 
separate filing to be sent to the Enforcement Bureau -  Technical 
and Public Safety Division.   Your certification should  indicate 
whether you, including your  parent entity and its  subsidiaries, 
meet one of the definitions set forth in the list provided by the 
FCC's Office of Communications Business Opportunities  (``OCBO'') 
set forth in Attachment A  of this Notice of Apparent  Liability.  
This information will be used  for tracking purposes only.   Your 
response or  failure to  respond to  this question  will have  no 
effect on your  rights and responsibilities  pursuant to  Section 
503(b)  of  the  Communications  Act.   If  you  have   questions 
regarding any  of  the  information contained  in  Attachment  A, 
please contact OCBO at (202) 418-0990.

     30.  IT IS FURTHER  ORDERED THAT  a copy of  this NOTICE  OF 
APPARENT LIABILITY  shall  be  sent  by  Certified  Mail,  Return 
Receipt Requested  to  Mr.  Jim Blundell,  Director  of  External 
Affairs, Western  Wireless Corporation,  3650 131st  Avenue,  SE, 
#400, Bellevue,  WA  98006, and  to  its counsel,  Michael  Deuel 
Sullivan, Esq., Wilkinson Barker Knauer  LLP, 2300 N Street,  NW, 
Suite 700, Washington, DC 20037.



                                FEDERAL COMMUNICATIONS 
COMMISSION



                                Marlene H. Dortch
                                Secretary                                                       October 
                                                       2002


                 FCC List of Small Entities

   As described below, a ``small entity'' may be a small 
                       organization,
  a small governmental jurisdiction, or a small business.

(1)  Small Organization 
Any not-for-profit enterprise that is independently owned and 
operated and 
is not dominant in its field.

  
(2)  Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages, 
school districts, or 
special districts, with a population of less than fifty 
thousand.


(3)  Small Business
Any business concern that is independently owned and operated 
and 
is not dominant in its field, and meets the pertinent size 
criterion described below.
  

       Industry Type          Description of Small Business 
                                      Size Standards
                 Cable Services or Systems
                             Special Size Standard - 
Cable Systems                 Small Cable Company has 400,000 
                             Subscribers Nationwide or Fewer
Cable and Other Program 
Distribution                      $12.5 Million in Annual 
                                     Receipts or Less

Open Video Systems 
        Common Carrier Services and Related Entities
Wireline Carriers and 
Service providers 
                                 1,500 Employees or Fewer
Local Exchange Carriers, 
Competitive Access 
Providers, Interexchange 
Carriers, Operator Service 
Providers, Payphone 
Providers, and Resellers

Note:  With the exception of Cable Systems, all size 
standards are expressed in either millions of dollars or 
number of employees and are generally the average annual 
receipts or the average employment of a firm.  Directions for 
calculating average annual receipts and average employment of 
a firm can be found in 
13 C.F.R. 121.104 and 13 C.F.R.  121.106, respectively.

                   International Services
International Broadcast 
Stations
                                 $12.5 Million in Annual 
                                     Receipts or Less






International Public Fixed 
Radio (Public and Control 
Stations)
Fixed Satellite 
Transmit/Receive Earth 
Stations
Fixed Satellite Very Small 
Aperture Terminal Systems
Mobile Satellite Earth 
Stations
Radio Determination 
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space 
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
                    Mass Media Services
Television Services

                              $12 Million in Annual Receipts 
                                         or Less
Low Power Television 
Services and Television 
Translator Stations
TV Auxiliary, Special 
Broadcast and Other Program 
Distribution Services
Radio Services
                              $6 Million in Annual Receipts 
                                         or Less
Radio Auxiliary, Special 
Broadcast and Other Program 
Distribution Services
Multipoint Distribution       Auction Special Size Standard -
Service                       Small Business is less than 
                             $40M in annual gross revenues 
                             for three preceding years
          Wireless and Commercial Mobile Services
Cellular Licensees
                                 1,500 Employees or Fewer
220 MHz Radio Service - 
Phase I Licensees
220 MHz Radio Service -       Auction special size standard -
Phase II Licensees            Small Business is average gross 
                             revenues of $15M or less for 
                             the preceding three years 
                             (includes affiliates and 
                             controlling principals)
                             Very Small Business is average 
                             gross revenues of $3M or less 
                             for the preceding three years 
                             (includes affiliates and 
                             controlling principals)
700 MHZ Guard Band Licensees


Private and Common Carrier 
Paging
Broadband Personal 
Communications Services           1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal            Auction special size standard -
Communications Services       Small Business is $40M or less 
(Block C)                     in annual gross revenues for 
                             three previous calendar years
                             Very Small Business is average 
                             gross revenues of $15M or less 
                             for the preceding three 
                             calendar years (includes 
                             affiliates and persons or 
                             entities that hold interest in 
                             such entity and their 
                             affiliates)
Broadband Personal 
Communications Services 
(Block F)
Narrowband Personal 
Communications Services


Rural Radiotelephone Service      1,500 Employees or Fewer
Air-Ground Radiotelephone 
Service
800 MHz Specialized Mobile    Auction special size standard -
Radio                         Small Business is $15M or less 
                             average annual gross revenues 
                             for three preceding calendar 
                             years
900 MHz Specialized Mobile 
Radio
Private Land Mobile Radio         1,500 Employees or Fewer
Amateur Radio Service                       N/A
Aviation and Marine Radio 
Service                           1,500 Employees or Fewer
Fixed Microwave Services
                             Small Business is 1,500 
Public Safety Radio Services  employees or less
                             Small Government Entities has 
                             population of less than 50,000 
                             persons
Wireless Telephony and 
Paging and Messaging              1,500 Employees or Fewer
Personal Radio Services                     N/A
Offshore Radiotelephone           1,500 Employees or Fewer
Service
Wireless Communications       Small Business is $40M or less 
Services                      average annual gross revenues 
                             for three preceding years
                             Very Small Business is average 
                             gross revenues of $15M or less 
                             for the preceding three years 

39 GHz Service
                             Auction special size standard 
                             (1996) -
Multipoint Distribution       Small Business is $40M or less 
Service                       average annual gross revenues 
                             for three preceding calendar 
                             years
                             Prior to Auction -
                             Small Business has annual 
                             revenue of $12.5M or less
Multichannel Multipoint 
Distribution Service              $12.5 Million in Annual 
                                     Receipts or Less
Instructional Television 
Fixed Service
                             Auction special size standard 
                             (1998) -
Local Multipoint              Small Business is $40M or less 
Distribution Service          average annual gross revenues 
                             for three preceding years
                             Very Small Business is average 
                             gross revenues of $15M or less 
                             for the preceding three years 
                             First Auction special size 
                             standard (1994) -
                             Small Business is an entity 
                             that, together with its 
                             affiliates, has no more than a 
218-219 MHZ Service           $6M net worth and, after 
                             federal income taxes (excluding 
                             carryover losses) has no more 
                             than $2M in annual profits each 
                             year for the previous two years
                             New Standard - 
                             Small Business is average gross 
                             revenues of $15M or less for 
                             the preceding three years 
                             (includes affiliates and 
                             persons or entities that hold 
                             interest in such entity and 
                             their affiliates)
                             Very Small Business is average 
                             gross revenues of $3M or less 
                             for the preceding three years 
                             (includes affiliates and 
                             persons or entities that hold 
                             interest in such entity and 
                             their affiliates)
Satellite Master Antenna 
Television Systems                $12.5 Million in Annual 
                                     Receipts or Less
24 GHz - Incumbent Licensees      1,500 Employees or Fewer
24 GHz - Future Licensees     Small Business is average gross 
                             revenues of $15M or less for 
                             the preceding three years 
                             (includes affiliates and 
                             persons or entities that hold 
                             interest in such entity and 
                             their affiliates)
                             Very Small Business is average 
                             gross revenues of $3M or less 
                             for the preceding three years 
                             (includes affiliates and 
                             persons or entities that hold 
                             interest in such entity and 
                             their affiliates)
                       Miscellaneous
On-Line Information Services   $18 Million in Annual Receipts 
                                         or Less
Radio and Television 
Broadcasting and Wireless 
Communications Equipment           750 Employees or Fewer
Manufacturers
Audio and Video Equipment 
Manufacturers
Telephone Apparatus 
Manufacturers (Except             1,000 Employees or Fewer
Cellular)
Medical Implant Device             500 Employees or Fewer
Manufacturers
Hospitals                      $29 Million in Annual Receipts 
                                         or Less
Nursing Homes                     $11.5 Million in Annual 
                                     Receipts or Less
Hotels and Motels              $6 Million in Annual Receipts 
                                         or Less
Tower Owners                  (See Lessee's Type of Business)


                          STATEMENT OF
                   CHAIRMAN MICHAEL K. POWELL

Re: Western Wireless Corporation and WWC Holding Co., Inc., 
    Licensee of Cellular Radio Station KNKN343, CMA583 - North 
    Dakota 4 - McKenzie RSA; Notice of Apparent Liability for 
    Forfeiture

    I recently announced a comprehensive, proactive approach for 
addressing the Commission's responsibilities in the 
communications tower-siting area.  Enforcement action, where 
necessary, will be an integral part of this approach as 
demonstrated by our action today.  

    As I described in the Action Plan, the siting of 
communications towers places a number of worthy, but competing, 
federal interests in tension -- widespread deployment of advanced 
telecommunications networks, the protection of birds and 
endangered species, aviation safety, and the preservation of 
historic and cultural sites, to name a few.  Balancing these 
interests requires cooperation from a number of interested 
parties -- including state and federal agencies, Indian tribes, 
environmental groups, and the communications and tower 
industries.  


_________________________

1  47 U.S.C.  301.
2  See 47 C.F.R.  1.1305. 
3  47 U.S.C.  503(b).
4  42 U.S.C.  4321-4335.
5  47 C.F.R.  1.1307.
6  47 C.F.R.   1.1308 and 1.1311.
7  47 C.F.R.  1.1312.  See also 47 C.F.R.  22.165(c).
8  16 U.S.C.   470 et  seq. In particular,  Section 106 of  the 
NHPA (16 U.S.C.   470f) requires Federal  agencies, such as  the 
Commission ``. .  . prior to the  issuance of any  license . .  . 
[to] take  into account  the  effect of  the undertaking  on  any 
district, site, building, structure or object that [qualifies  as 
a Historic Property].''
9  47 C.F.R.  1.1307(a)(4).
10 47 C.F.R.  1.1308(d).
11 See 47 C.F.R.  1.1308(c), 1.1309.
12 See 47 C.F.R.  1.1305, 1.1314, 1.1315, 1.1317.
13   Letter  from  Michael  E.  Simonson,  Review  &   Compliance 
Coordinator, State Historical Society  of North Dakota, to  Frank 
Stilwell,     Commercial     Wireless     Division,      Wireless 
Telecommunications Bureau  (November  15, 1999)  (``November  15, 
1999 Letter''). 
14  While  the Commission's  historic preservation  rules do  not 
expressly refer to properties listed on state or local  registers 
of  historic  properties,  such  local  registers  are  important 
sources of information. Where such locally-listed properties  are 
found in the area of potential effects (``APE''), they should  be 
evaluated for NRHP eligibility.
15    Letter  from  Michael  E.  Simonson,  Review  &  Compliance 
Coordinator, State Historical Society  of North Dakota, to  Frank 
Stilwell,     Commercial     Wireless     Division,      Wireless 
Telecommunications Bureau  (January 31,  2000). See  also  Letter 
from Michael Deuel Sullivan, Esq., to Kathy Harvey, Technical and 
Public Safety  Division, Enforcement  Bureau (February  3,  2003) 
(``Western February  2003  Letter'') (stating  that  the  nearest 
historic site to the tower is approximately one quarter of a mile 
away)
16  See, e.g., Letter from Noel R. Poe, Superintendent,  National 
Park Service, U.S.  Department of  the Interior,  to Dan  Abeyta, 
Commercial Wireless Division, Wireless Telecommunications  Bureau 
(March 15, 2001). 
17  Letter  from  Rose  Crellin,  Commercial  Wireless  Division, 
Wireless Telecommunications Bureau,  to Grant Hoovestos,  Western 
Wireless Corporation (December 14, 1999).
18  Id.  (emphasis added).  In February 2000, WTB again  informed 
Western that  if the  situation  was not  resolved, it  ``may  be 
subject to enforcement action by the Commission.''
19   Because  the   Commission  has   historically  focused   its 
environmental  enforcement  efforts  on  the  kind  of   informal 
resolution attempted by WTB in this case, WTB and other licensing 
Bureaus   have   primary    responsibility   for    environmental 
enforcement.  47  C.F.R.   0.111(a)(11)  Note.  The  rules  also 
provide for referral of such  matters from the licensing  bureaus 
to EB upon mutual agreement of the Bureaus.  Id.,  0.111(a)(14).  
We take  this opportunity  to  state our  strong support  for  an 
enforcement-oriented  approach   in   the   protection   of   the 
environment.   We  direct  referrals  to  EB  of  violations   by 
licensees or tower owners where appropriate and continued  strong 
enforcement action by EB where such action is appropriate.
20  Letter  from Joseph  P. Casey,  Chief, Technical  and  Public 
Safety Division, Enforcement Bureau, to Jim Blundell, Director of 
External  Affairs,  Western  Wireless  Corporation  (October  17, 
2002).
21  Letter from  Michael Deuel Sullivan,  Esq., to Kathy  Harvey, 
Technical  and   Public  Safety   Division,  Enforcement   Bureau 
(November 1, 2002) (``Western November 2002 Letter'')
22  Chapter 6, Article 1, Introduction.
23  Chapter 6, Article 3,  6.0301.
24  Western November  2002 Letter at  3. More precisely,  Section 
1.1307(a)(4) of the Rules, 47 C.F.R.  1.1307(a)(4), requires  an 
EA where  a  proposed  facility ``may  affect  districts,  sites, 
buildings,  structures  or   objects,  significant  in   American 
history, architecture, archeology,  engineering or culture,  that 
are listed, or eligible for  listing in the National Register  of 
Historic Places.''
25  Western November  2002 Letter  at 3.   See also  47 C.F.R.   
1.1307(a)(4) note (emphasis added).
26  Western November  2002 Letter at  3.  See also  47 C.F.R.   
1.1306(a), 1.1307(a)(4).
27  Western November 2002 Letter . 47 C.F.R.  1.1307(c) and (d).
28  Letter  from Joseph  P. Casey,  Chief, Technical  and  Public 
Safety Division, Enforcement Bureau, to Jim Blundell, Director of 
External  Affairs,  Western  Wireless  Corporation  (January  14, 
2003).
29  Western February 2003 Letter. 
30  We note that in the Historical Society's November 1999 letter 
to the  Wireless  Telecommunications  Bureau,  it  asserted  that 
Western's tower adversely affected the Peaceful Valley Ranch. 
31  47 C.F.R.  22.165.
32  47 C.F.R.  1.1301-1.1319, 22.165(c).
33  47 C.F.R.  1.929.          
34  47 C.F.R.  1.1301-1.1319.
35 47 C.F.R.   1.1312(b); see  also 47 C.F.R.   1.1307(a)  (EA 
required  where   facility   ``may   significantly   affect   the 
environment), 1.1308, 1.1311.
36  47 C.F.R.  1.1307(a)(4).
37  47 C.F.R.  1.1305; see also 47 C.F.R.  1.1308(i),  1.1314, 
1.1315, 1.1317. 
38  47 C.F.R.  1.1307(a)(4). 
39  47 C.F.R.  1.1307(a)(4), 1.1308, 1.1311.
40  Where  construction  of a  facility  is deemed  a  Commission 
action and that facility has an unmitigated adverse effect on one 
or more Historic  Properties, the  Commission has  for some  time 
viewed such  a facility  as having  a significant  effect on  the 
environment.  For  example,   in  its  1974   Report  and   Order 
implementing NEPA, the Commission  determined that the  following 
``classes of facilities'' would be classified as ``major''  under 
NEPA: those ``[f]acilities  which will  affect districts,  sites, 
buildings,  structures,  or  objects,  significant  in   American 
history, architecture, archeology or culture which are listed  in 
the National  Register of  Historic Places  or are  eligible  for 
listing.'' Implementation  of the  National Environmental  Policy 
Act of 1969, 49  FCC2d 1313, 1319-1320  (1974) recon. granted  in 
part and otherwise denied, 56 FCC2d 635 (1975).
41 An  adverse effect  is found  when an  undertaking may  alter, 
directly or indirectly, any of the characteristics of a  historic 
property that qualify the property for inclusion in the  National 
Register in a  manner that  would diminish the  integrity of  the 
property's location,  design,  setting,  materials,  workmanship, 
feeling, or  association. Consideration  shall  be given  to  all 
qualifying characteristics  of  a  historic  property,  including 
those that may  have been identified  subsequent to the  original 
evaluation  of  the  property's  eligibility  for  the   National 
Register. Adverse  effects  may  include  reasonably  foreseeable 
effects caused by the undertaking  that may occur later in  time, 
be  farther  removed  in  distance  or  be  cumulative.   Section 
800.5(a)(1) of the ACHP Regulations, 36 C.F.R.  800.5(a)(1). See 
also  36   C.F.R.   800.5(a)(2)(v)  ``Introduction   of   visual, 
atmospheric or audible  elements that diminish  the integrity  of 
the property's significant historical features.''
42  47 C.F.R.  22.165.
43  47 C.F.R. 22.165(c).
44 47 C.F.R.  1.947(a). 
45 47 C.F.R.  1.929(a)(4).
46  47 U.S.C.  503(b)(6)(B).  
47  47 C.F.R.  1.1311(c).
48   47  C.F.R.    1.1311   (e).   With  respect  to   Western's 
``consultation'' with  the National  Park Service,  the  National 
Park Service has indicated that, at the time, it was unaware that 
the FCC  had rules  relating to  the location  of  communications 
towers.  Letter from Noel  R. Poe, Superintendent, National  Park 
Service, U.S.  Department  of  the Interior,  to  RaeAnn  Kelsch, 
Manager of External Affairs,  Western Wireless Corporation  (July 
6, 2000).  The National Park Service also notes:  ``It is not the 
National  Park   Service,   TRMF   [Theodore   Roosevelt   Medora 
Foundation], nor the City's responsibility  to know and abide  by 
FCC  Regulations.   That  responsibility  rests  solely  with  WW 
[Western].''  Id.
49  See 47 C.F.R.  1.1308(a). 
50  See Amor Family Broadcasting Group v. FCC, 918 F.2d 960,  962 
(D.C. Cir. 1991).
51 47 C.F.R.  22.165, 1.947.
52  47 U.S.C.  503(b).
53  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).
54  Section  312(f)(2)  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.''  47 U.S.C.  312(f)(2).
55  47 U.S.C.  503(b)(2)(B); see also 47 C.F.R.  1.80(b)(2).
56  47  U.S.C.     503(b)(2)(D);  see  also  Forfeiture   Policy 
Statement, 12 FCC Rcd at 17100 (1997); 47 C.F.R.  1.80(b)(4).
57  12 FCC Rcd 17087 (1997), recon denied, 15 FCC Rcd 303 (1999).
58  In  addition,  Western  failed  to  obtain  prior  Commission 
approval for a facility that may have an adverse effect on one or 
more Historic Properties.  
59  47 C.F.R.   1.80(b)(4), Note  to paragraph (b)(4):   Section 
II. Adjustment Criteria for  Section 503 Forfeitures;  Forfeiture 
Policy Statement, 12 FCC Rcd at 17117, Appendix A, Section II.
60 47 C.F.R.  1.1308(a). 
61 47 C.F.R.  1.1307(a).
62 47 C.F.R.  1.80.
63  See 47 C.F.R.  1.1914.