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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 - )
MEMORANDUM OPINION AND ORDER
Adopted: November 17, 2004 Released: December 1,
By the Commission: Chairman Powell issuing a separate statement.
1. In this Memorandum Opinion and Order (``Order''), we
cancel the $200,000 Notice of Apparent Liability for Forfeiture
(``NAL'') issued to Western Wireless Corporation and its wholly
owned subsidiary, WWC Holding Co., Inc. (collectively
``Western''), licensee of Cellular Radio Station KNKN343, CMA583
- North Dakota 4 - McKenzie RSA.1 The NAL found that Western was
operating radio transmitting equipment from an unauthorized
location in Medora, North Dakota (``Medora tower'') in apparent
willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended (``Act'').2
2. Under the Commission's environmental processing rules,
licensees and applicants 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.3 If proposed facilities may have significant
environmental effects, the rules require licensees to prepare and
file with the Commission Environmental Assessments (``EAs'')4
prior to construction.5 Consistent with the National Historic
Preservation Act of 1966, as amended (``NHPA''),6 Section
1.1307(a)(4) of the Commission's rules requires licensees to
prepare and to submit EAs to the Commission if their proposed
facilities may affect one or more properties listed, or eligible
for listing, (``historic properties'') in the National Register
of Historic Places (``National Register''). 7 If the Commission
finds, after reviewing an EA and any comments received, that a
proposed facility will not have a significant environmental
effect, it will issue a finding of no significant impact
(``FONSI'') and grant the application.8 If the Commission finds
that a proposed action will have a significant environmental
effect and the applicant does not choose to amend its
application,9 the licensee may not commence construction until
the Commission concludes further environmental processing,
including the preparation of Environmental Impact Statements
3. In August 1999, Western constructed the 180-foot
monopole tower on a bluff overlooking Medora, North Dakota.
Western constructed the tower in view of properties listed in the
National Register, without first filing an EA with and undergoing
environmental review at the Commission. In November 1999,
shortly after the tower was built, the State Historic
Preservation Office (``SHPO'') wrote the Commission regarding the
effect of the tower on area historic properties.11 In turn, on
December 14, 1999, the Commission's Wireless Telecommunications
Bureau (``WTB'') notified Western that its Medora facility may
significantly affect historic properties.12
4. On May 12, 2003, the Commission ultimately proposed
enforcement action against Western, by issuing the NAL that found
Western apparently liable for a $200,000 forfeiture for operation
of radio transmitting equipment from an unauthorized location in
willful and repeated violation of Section 301 of the Act.
Because of the Commission's expressed concern that the Medora
tower had and continued to have a significant environmental
effect on historic properties, it concluded that the
circumstances justified substantially increasing the proposed
forfeiture from the $4,000 base amount for operation at an
unauthorized location to $200,000.13
5. On June 13, 2003, Western filed a response to the
NAL,14 and on June 20 and November 4, 2003, supplemented its
response.15 In its response, Western disputed the findings in
the NAL and sought cancellation of the NAL and rescission of its
findings. Western maintained, inter alia, that after the WTB
notified it in December 1999 of the historic preservation
concerns, it cooperated in good faith with the WTB and others to
resolve this matter, noting its ongoing efforts to establish
effective mitigation measures as well as submissions of periodic
status reports to the WTB.16
6. As previously noted, the record establishes that in a
December 1999 letter, the WTB advised Western that continued
operation of the Medora tower may adversely affect historic
properties. In response to the December 1999 letter, the record
further establishes that Western worked cooperatively and in good
faith with the WTB and others to address the historic
preservation issues, before the period covered by the NAL.
Specifically, the record establishes that after the December 1999
letter and before the NAL, Western engaged the SHPO in meetings,
held two public hearings, provided the WTB with regular status
reports, made offers to prepare and submit an EA to the
Commission, and ultimately proposed mitigation measures in a
draft Memorandum of Agreement (``MOA'').17 Indeed, the SHPO
believes that the proposed mitigation measures, if implemented,
``will eliminate, reduce or mitigate any adverse effect from the
Medora tower on any and all historic properties sufficiently so
that such effect will be resolved.''18 Based on the unique
circumstances at issue, we conclude that it is appropriate as a
matter of equity to cancel the NAL and not to impose a forfeiture
here. We emphasize that our decision here to cancel the NAL was
based on the unusual and unique facts and circumstances of this
case and does not represent a more generalized weakening of our
enforcement obligations. In the future, if entities fail to
prepare and file EAs and the facts and circumstances warrant
enforcement action, we will take such action.
7. Accordingly, IT IS ORDERED that, pursuant to Section
504(b) of the Act, and Section 1.80(f)(4) of the rules,19 the
prior Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
20332100004 IS CANCELLED.
8. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail return receipt
requested to Mr. William J. Hackett, Director of Regulatory
Compliance, Western Wireless Corporation, 401 9th Street, NW,
Suite 550, Washington, DC 20004, and to its counsel, Michael
Deuel Sullivan, Esq., Wilkinson Barker Knauer, LLP, 2300 N
Street, NW, Suite 700, Washington, DC 20037-1128, and John F.
Clark, Esq., Perkins Cole, LLP, 607 14th Street, NW, Suite 800,
Washington, DC 20005-2011.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
CHAIRMAN MICHAEL K. POWELL
In the Matter of Western Wireless Corporation and WWC Holding
On all the facts of this matter, I support the Commission's
decision to cancel the Notice of Apparent Liability for
Forfeiture previously issued against Western Wireless Corporation
and WWC Holding Co., Inc. I note, however, that the Commission
recently revised its environmental rules to implement a
Nationwide Programmatic Agreement that tailors, streamlines, and
clarifies the procedures for evaluating the effects of
undertakings on historic properties under the National Historic
Preservation Act.20 The new rule makes clear that the provisions
of the Nationwide Programmatic Agreement are mandatory and
binding upon applicants, and that non-compliance with its
procedures will subject a party to potential enforcement
action.21 Given the clarity of the procedures specified in the
Nationwide Programmatic Agreement, I would find it particularly
difficult to excuse a failure to follow these mandatory steps
going forward. Accordingly, I expect to consider the existence
of this revised rule in assessing whether, and the amount in
which, a forfeiture is appropriate in the event of future rule
1Western Wireless Corporation and WWC Holding Co., Inc., 18 FCC
Rcd 10319 (2003).
247 U.S.C. § 301.
347 C.F.R. § 1.1307.
4See 47 C.F.R. §§ 1.1308 and 1.1311.
5See 47 C.F.R. § 1.1312; see also 47 C.F.R. § 22.165(c).
616 U.S.C. §§ 470-470w. In particular, Section 106 of the NHPA
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].'' 16 U.S.C. §
747 C.F.R. § 1.1307(a)(4). The Commission recently amended its
rules to require licensees, in ascertaining whether their
proposed actions may affect properties that are listed or
eligible for listing in the National Register, to follow the
procedures set forth in the rules of the Advisory Council on
Historic Preservation, 36 C.F.R. Part 800, as modified and
supplemented by two Nationwide Programmatic Agreements to be
published as appendices to Part 1 of the Commission's rules. See
Nationwide Programmatic Agreement Regarding the Section 106
National Preservation Act Review Process, WT Docket No. 03-128,
Report and Order, FCC 04-222 (rel. October 5, 2004).
8See 47 C.F.R. § 1.1308(d).
9See 47 C.F.R. §§ 1.1308(c), 1.1309.
10See 47 C.F.R. §§ 1.1305, 1.1314, 1.1315, 1.1317.
11See Letter from Michael E. Simonson, Review and Compliance
Coordinator, State Historical Society to Frank Stilwell,
Commercial Wireless Division, Wireless Telecommunications Bureau
(November 15, 1999).
12See Letter from Rose Crellin, Commercial Wireless Division,
Wireless Telecommunications Bureau, to Grant Hoovestol, Western
Wireless Corporation (December 14, 1999).
13The Commission also directed Western to file, within 30 days of
the release of the NAL, a sworn statement describing its plans to
cease operation at its Medora Tower site or to bring that site
into compliance with our environmental rules. See NAL, 18 FCC
Rcd at 10327 ¶ 21. Since the NAL was issued, Western has been
operating the Medora facility through consecutive grants of
special temporary authority (``STAs'') issued by WTB staff.
14Response of Western Wireless Corporation and WWC Holding Co,
Inc. to Notice of Apparent Liability for Forfeiture (filed June
13, 2003) (``NAL Response''). See also Addendum I (sworn
statement of William J. Hackett).
15See Letter from Michael D. Sullivan, Esq. to Marlene H. Dortch,
Secretary, Federal Communications Commission (June 20, 2003);
Letter from John F. Clark, Esq. to Marlene H. Dortch, Secretary,
Federal Communications Commission (November 4, 2003).
16See NAL Response at 83 and Exhibit 28.
17See NAL Response at 11-14; Letter from Michael Deuel Sullivan,
Esq. to Daniel Abeyta, Commercial Wireless Division, Wireless
Telecommunications Bureau (August 24, 2001); Letter from Michael
Deuel Sullivan, Esq. to Magalie Roman Salas, Secretary, Federal
Communications Commission (June 11, 2001); Letter from Michael
Deuel Sullivan, Esq. to Daniel Abeyta, Commercial Wireless
Division, Wireless Telecommunications Bureau (January 9, 2001) at
3; Letter from Michael Deuel Sullivan, Esq. to Rose Crellin,
Commercial Wireless Division, Wireless Telecommunications Bureau
(November 20, 2000); Letter from Michael Deuel Sullivan, Esq. to
Rose Crellin, Commercial Wireless Division, Wireless
Telecommunications Bureau (April 7, 2000); Letter from Michael
Deuel Sullivan, Esq. to Rose Crellin, Commercial Wireless
Division, Wireless Telecommunications Bureau (February 16, 2000);
see also Letter from Rose Crellin, Commercial Wireless Division,
Wireless Telecommunications Bureau to Michael Deuel Sullivan,
Esq. (November 13, 2000) (acknowledging that Western kept the
Commission abreast by submitting progress reports and ``continued
the Section 106 National Historic Preservation Act (``NHPA'')
process by meeting with, and accepting comments from the SHPO,
representatives of the National Park Service, and members of the
public concerning the constructed tower in Medora, North Dakota,
and ultimately developing mitigation proposals'') at 1; Letter
from Rose Crellin, Commercial Wireless Division, Wireless
Telecommunications Bureau to Michael Deuel Sullivan, Esq. (March
8, 2000) (directing Western to submit regular progress reports at
30-day intervals) at 1; Letter from Rose Crellin, Commercial
Wireless Division, Wireless Telecommunications Bureau to Michael
Deuel Sullivan, Esq. (February 4, 2000) (advising Western not to
file an EA until ``after completion of the MOA . . . with the
SHPO,'' since the tower was already constructed) at 1.
18 Letter from Merlan E. Paaverud, Jr., State Historic
Preservation Officer, State Historical Society of North Dakota to
Amos Loveday, Federal Communications Commission, Wireless
Telecommunications Bureau (January 12, 2004) at 2.
1947 U.S.C. § 504(b); 47 C.F.R. § 1.80(f)(4).
20Nationwide Programmatic Agreement Regarding the Section 106
National Historic Preservation Act Review Process, WT Docket No.
03-128, Report and Order, FCC 04-222 (rel. Oct. 5, 2004).
21Id. at ¶ 169.