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

******************************************************** 
                      NOTICE
********************************************************

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 No. EB-06-SE-352

   Panhandle Telecommunications Systems, Inc. ) NAL/Acct. No. 200732100002

   ) FRN # 0001704246

                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted Date: October 19, 2006 Released Date:   October 19, 2006

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I. INTRODUCTION

    1. By this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       Panhandle Telecommunications, Inc. ("Panhandle") apparently liable for
       a forfeiture in the amount of five thousand six hundred dollars
       ($5,600) for constructing a facility before completing environmental
       review, in apparent willful violation of Sections 1.1307(a)(3) and
       1.1307(a)(4) of the Commission's Rules ("Rules").

   II. BACKGROUND

    2. Under the Commission's rules implementing the National Environmental
       Policy Act of 1969, as amended, ("NEPA"), licensees, permittees and
       applicants (collectively, "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 Rules. For
       actions that may have significant environmental effects, licensees
       must prepare and submit to the Commission an Environmental Assessment
       ("EA") and undergo environmental review and any mandatory consultation
       with expert agencies, prior to initiating construction. This includes
       actions for which no pre-construction authorization is otherwise
       required.

    3. Section 1.1307(a)(3) provides that an EA is required for proposed
       facilities that may affect listed threatened or endangered species or
       designated critical habitats, or are likely to jeopardize the
       continued existence of any proposed endangered or threatened species
       or likely to result in the destruction or adverse modification of
       proposed critical habitats, as determined by the Secretary of the
       Interior pursuant to the Endangered Species Act of 1973 ("ESA").
       Thus, applicants and licensees are routinely required to evaluate
       their proposed construction projects for potential adverse effects on
       species that are endangered, threatened, or otherwise subject to
       Section 1.1307(a)(3), and to file an EA if the terms of Section
       1.1307(a)(3) are met. To assist in making this assessment, licensees
       may solicit and consider the comments of the U.S. Fish and Wildlife
       Service (USFWS).

    4. Section 1.1307(a)(4) of the Rules requires licensees to consider
       whether their proposed facilities would affect properties listed or
       eligible for listing ("historic properties") in the National Register
       of Historic Places ("National Register"). In considering potential
       effects on historic properties, Section 1.1307(a)(4) requires
       licensees to follow the prescribed procedures established by the
       Programmatic Agreements for collocated antennas and for historic
       preservation review. The Collocation and Nationwide Agreements are
       designed to tailor and streamline the review and consultation
       procedures required by the National Historic Preservation Act of 1966,
       as amended ("NHPA"), and the implementing regulations issued by the
       Advisory Council on Historic Preservation ("Advisory Council").

    5. The Nationwide Agreement requires licensees to: (i) determine the
       geographical areas of potential effects ("APE") for both direct and
       visual effects; (ii) identify historic properties within the
       applicable APE; and (iii) consider the effects a proposed facility may
       have on the identified properties. In the course of this process,
       licensees must, among other things, solicit the views of the State
       Historic Preservation Officer ("SHPO") and, if applicable, any Indian
       tribe or Native Hawaiian organization ("NHO") that may attach
       religious or cultural significance to potentially affected historic
       properties.

    6. Thus, under the Nationwide Agreement, licensees must identify the
       historic properties located within the APE that may be directly or
       visually affected by their proposed facility. The APE for direct
       effects is the area of potential ground disturbance and any property
       that will be physically altered or destroyed by the undertaking; the
       "presumed APE" for visual effects is based on the height of the
       facility. For a facility that is 200 feet or less in overall height,
       the presumed APE for visual effects is a half mile. To identify
       historic properties located within the APE for direct and visual
       effects ("nearby historic properties"), licensees must review certain
       records maintained by the appropriate SHPO, gather information from
       interested Indian tribes and NHOs, and make additional reasonable good
       faith efforts at identification within the APE for direct effects. In
       the course of the identification and assessment process, licensees
       must also solicit and consider the views of the local government and
       the general public. At the conclusion of this process, licensees must
       provide the SHPO and any interested consulting parties with Submission
       Packets ("Packets") detailing their proposals and explaining the
       effects, if any, their proposals may have on nearby historic
       properties. Licensees must provide the SHPO a 30-day period to review
       these Packets, during which other parties may submit comments.

    7. In cases where a licensee determines that its proposed facility will
       not involve  historic properties, and the SHPO concurs or does not
       respond within 30 days of receipt of the Packet, the historic
       preservation review process is deemed complete, and the licensee may
       begin construction if all other required review processes have been
       completed. In cases where a licensee determines that its proposed
       facility will have an effect on nearby historic properties, but that
       the effect is not adverse, and the SHPO does not respond within 30
       days of receipt of the Packet, the historic preservation review
       process is deemed complete after the licensee provides the Commission
       with a copy of the Packet and allows for the prescribed period for
       Commission review. Finally, if the licensee or the SHPO determines
       that the proposed facility will have an adverse effect  on nearby
       historic properties, the historic preservation review process is not
       complete until the conclusion of a prescribed process to address and,
       if possible, mitigate the effects. If an Indian tribe or NHO disagrees
       with the licensee's determination or does not respond to contacts, the
       licensee must seek guidance from the Commission and cannot proceed
       without the Commission's concurrence.

    8. As a wireless licensee, Panhandle is subject to the Commission's
       environmental rules, including the specific endangered species,
       historic preservation, and other environmental review requirements. On
       October 21, 2005, Panhandle began construction of an antenna structure
       in Hough, Oklahoma, without first determining whether the proposed
       facility might affect or be likely to jeopardize listed or proposed
       threatened or endangered species or designated critical habitats. In
       addition, Panhandle began construction without first completing the
       requisite pre-construction review pursuant to Section 106 of the NHPA
       to determine if the proposed facilities may affect properties listed
       or eligible for listing in the National Register. On November 3, 2005,
       Panhandle completed construction of the antenna structure; however, it
       was not until November 16, 2005 that Panhandle notified the Oklahoma
       SHPO that it had constructed the facility. On December 8, 2005,
       Panhandle notified the Commission of the construction of the antenna
       structure and fully disclosed the violation.

    9. After it had constructed its antenna structure without first
       completing the requisite endangered species and historic preservation
       pre-construction reviews, Panhandle retained environmental consultant
       Terracon to fulfill its obligations under Section 1.1307. Terracon
       conducted a review of the site and facility and determined that the
       facility had no significant effect on the environment. Specifically,
       Terracon determined that Panhandle's facility did not affect species
       or habitats protected under the ESA; that no historic properties were
       in the APE for visual or direct effects; that no cultural resources
       were observed during the course of Terracon's survey; and that no
       cultural resources were damaged by construction activities at the
       tower location. In the course of this review, Panhandle attempted to
       obtain the views of the Oklahoma SHPO consistent with the Nationwide
       Agreement, but was told that the relevant state agencies would not
       comment because the tower had already been constructed.

   10. On December 7, 2005, Panhandle sought to identify interested Indian
       tribes and solicit their views by submitting the site to the
       Commission's Tower Construction Notification System ("TCNS"). The TCNS
       notification was sent by the Commission to all federally-recognized
       Indian tribes that had identified the Hough, Oklahoma area as within
       their area of geographic preference. Several of these tribes responded
       that they had no interest in the site. On January 24, 2006, after two
       unsuccessful attempts by Panhandle to contact the Jicarilla Apache
       Nation, the Wichita and Affiliated Tribes, the Cheyenne-Arapaho Tribes
       of Oklahoma, the Seminole Nation of Oklahoma, and the Northern
       Cheyenne Tribe, Panhandle referred the site to the Commission staff
       for follow-up contact. Accordingly, on February 22, 2006, the
       Commission staff sent a letter to the tribes that failed to respond
       giving them a final 20-day period to indicate an interest in the site.
       This 20-day period expired without any response from any of the
       referenced tribes.

   11. On February 16, 2006, Terracon submitted a request to USFWS to concur
       with Terracon that the proposed structure had no effect on species or
       habitats protected under the ESA. On March 13, 2006, Panhandle
       submitted to the Commission a Form 620 and a NEPA Land Use Checklist.
       The documentation established that Panhandle's facility did not affect
       proposed or existing threatened or endangered species or critical
       habitats. The documentation also established that no listed or
       determined eligible National Register sites were identified within the
       APE for visual or direct effects, and that there was no other evidence
       of cultural resources in the project area.

   12. On August 28, 2006, the Wireless Telecommunications Bureau ("WTB")
       sent Panhandle a Letter of Inquiry ("LOI"). In its response to the
       LOI, Panhandle acknowledges that it constructed its antenna structure
       before completing the environmental and historic preservation review
       requirements. According to Panhandle, the failure in its process was
       "completely unintentional and resulted from an inadvertent oversight."
       Panhandle states that, after the company realized its error, it
       contacted appropriate agencies, completed the required documentation,
       and instituted new policies to ensure that all regulatory requirements
       are met before it constructs any new communications facilities. After
       receiving Panhandle's LOI response, the WTB referred the matter to the
       Enforcement Bureau for possible enforcement action.

   III. DISCUSSION

   13. Under Section 503(b)(1)(B) of the Communications Act of 1934, as
       amended ("Act'), and Section 1.80(a)(1) of the Rules, any person who
       is determined by the Commission to have willfully or repeatedly failed
       to comply with any provision of the Act or any rule, regulation, or
       order issued by the Commission shall be liable to the United States
       for a forfeiture penalty. To impose such a forfeiture penalty, the
       Commission must issue a notice of apparent liability, and the person
       against whom such notice has been issued must have an opportunity to
       show, in writing, why no such forfeiture penalty should be imposed.
       The Commission will then issue a forfeiture if it finds by a
       preponderance of the evidence that the person has violated the Act or
       a Commission rule.

   14. The record establishes that Panhandle commenced and completed
       construction of its antenna structure in Hough, Oklahoma, prior to
       completing the requisite endangered species review and prior to
       submitting the required Form 620 to the Oklahoma SHPO and receiving
       the recommendation of the Oklahoma SHPO. The record also establishes
       that Panhandle commenced and completed construction at the Hough,
       Oklahoma site prior to notifying interested Indian tribes of its
       intention to construct. Thus, we find that Panhandle commenced and
       completed construction at the Hough, Oklahoma site prior to concluding
       the environmental and historic preservation review process in apparent
       willful violations of Sections 1.1307(a)(3) and 1.1307(a)(4) of the
       Rules. Based on our finding, and consistent with Section 503(b)(1)(B)
       of the Act and Section 1.80(a)(1) of the Rules, we find it appropriate
       to propose a forfeiture penalty against Panhandle.

   15. Section 503(b)(2)(B) of the Act authorizes the Commission to assess
       forfeitures against common carriers of up to $130,000 for each
       violation, or each day of a continuing violation, up to a maximum of
       $1.325 million for a single act or failure to act. In determining the
       appropriate forfeiture amount, Section 503(b)(2)(D) of the Act directs
       the Commission to consider "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."

   16. The Commission has established base forfeiture amounts for certain
       violations, but has not specified a base forfeiture amount for
       constructing a facility prior to completing historic preservation or
       other environmental reviews required under Section 1.1307(a) of the
       Rules. Nevertheless, the Commission has stated that "any omission of a
       specific rule violation from the list ... [establishing base
       forfeiture amounts] should not signal that the Commission considers
       any unlisted violation as nonexistent or unimportant. The Commission
       expects, and it is each licensee's obligation to know and comply with
       all Commission's rules." Thus, the Commission retains its discretion
       to issue forfeitures on a case-by-case basis. Having considered the
       statutory factors and as explained below, we propose a base forfeiture
       amount of $7,000.

   17. In determining the appropriate base forfeiture amount, we consider the
       nature of Panhandle's violations. The Commission has long required
       licensees to submit environmental assessments, perform environmental
       review and obtain Commission approval before they construct facilities
       that may have a significant effect on the environment. The Commission
       has explained that any construction delay resulting from requiring
       pre-construction environmental review "is more than offset by the
       public interest benefits of ensuring, in compliance with Federal
       environmental statutes, that no potentially irreversible harms to the
       environment occurs." We also note that the Commission has determined
       that $10,000 is the appropriate base forfeiture amount for violations
       of other environmental rules, specifically, the radio frequency
       radiation exposure limits set forth in Section 1.1307(b),
       notwithstanding the absence of an established base forfeiture amount
       in the rules. While we think that failure to comply with Sections
       1.1307(a)(3) and 1.1307(a)(4) are serious violations and may have a
       significant effect on threatened and endangered species, critical
       habitats, and historic properties, such violations do not potentially
       jeopardize public health and safety, as do violations of the radio
       frequency radiation exposure limits. We thus find that a lower base
       forfeiture amount of $7,000 is appropriate for violations of the
       environmental and historic preservation review requirements of
       Sections 1.1307(a)(3) and 1.1307(a)(4) of the Rules.

   18. This $7,000 base forfeiture amount is subject to adjustment, however.
       We find that Panhandle is entitled to a downward adjustment of the
       proposed forfeiture based on its voluntary disclosures to Commission
       staff, and prompt efforts to address endangered species and historic
       preservation concerns by consulting with relevant expert agencies and
       Commission staff, prior to the Commission's initiation of an
       investigation. Accordingly, consistent with precedent, we reduce the
       proposed forfeiture amount from $7,000 to $5,600.

   IV. CONCLUSION

   19. We propose a forfeiture of $5,600 against Panhandle for its failure to
       comply with the rules regarding threatened or endangered species and
       critical habitats, as well as the historic preservation review
       requirements, prior to constructing its facility in apparent willful
       violations of Sections 1.1307(a)(3) and 1.1307(a)(4) of the Rules.

   V. ORDERING CLAUSES

   20. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
       Act, and Section 1.80 of the Rules, Panhandle Telecommunications
       Systems, Inc., IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
       FORFEITURE in the amount of $5,600 for its apparent willful violations
       of Section 1.1307(a)(3) and 1.1307(a)(4) of the Rules.

   21. 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 for Forfeiture, Panhandle Telecommunications Systems, Inc.
       SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
       written statement seeking reduction or cancellation of the proposed
       forfeiture.

   22. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within 30 days of the release of this Order.
       If the forfeiture is not paid within the period specified, the case
       may be referred to the Department of Justice for collection pursuant
       to Section 504(a) of the Act. 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. Requests for
       payment of the full amount of the NAL under an installment plan should
       be sent to: Associate Managing Director - Financial Operations, 445
       12^th Street, S.W., Room 1-A625, Washington, D.C. 20554.

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

   24. 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 principles; 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.

   25. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by first class mail and certified mail
       return receipt requested to Marjorie Spivak, Esq., counsel for
       Panhandle Telecommunications, Inc., Bennet & Bennet PLLC, 10 G Street,
       NE, Washington, DC 20002.

   FEDERAL COMMUNICATIONS COMMISSION

   Kathryn S. Berthot

   Chief, Spectrum Enforcement Division

   Enforcement Bureau

   47 C.F.R. SS 1.1307(a)(3) and 1.1307(a)(4).

   42 U.S.C. SS 4321-4335.

   47 C.F.R. S 1.1307.

   See 47 C.F.R. S 1.1311.

   See 47 C.F.R. S 1.1308.

   47 C.F.R. S 1.1312.

   16 USC SS 1531 et seq.

   See 47 C.F.R. S 1.1307(a)(3) and Note. Alternatively, licensees may use
   other sufficient means to determine that species and habitats protected
   under the ESA would not be affected. See FCC Environmental Checklist,
   http://wireless.fcc.gov/siting/environmental-assessment.html.

   See Wireless Telecommunications Bureau Announces Execution of Programmatic
   Agreement with respect to Collocating Wireless Antennas on Existing
   Structures, Public Notice, 16 FCC Rcd 5574 (WTB 2001), recon. denied, 20
   FCC Rcd 4084 (WTB 2005) ("Collocation Agreement").

   See Nationwide Programmatic Agreement Regarding the Section 106 National
   Historic Preservation Act Review Process, Report and Order, WT Docket No.
   03-128, 20 FCC Rcd 1073 (2004), clarified, 20 FCC Rcd 17995 (2005), aff'd,
   CTIA-The Wireless Ass'n. v. FCC, No. 05-1008 (D.C. Cir. September 26,
   2006) ("Nationwide Agreement").

   Section 1.1307(a)(4) of the Rules incorporates by reference the
   Collocation Agreement and the Nationwide Agreement.

   16 U.S.C. S 470 et seq. The NHPA requires that a federal agency consider
   the effects of its federal undertakings, including actions that it
   authorizes or approves, on historic properties prior to issuing federal
   licenses, permits or approvals. See 16 U.S.C. SS 470f, 470w(7). In
   considering such effects, the NHPA further requires the federal agency to
   consider the views of expert agencies. Specifically, the NHPA requires the
   federal agency to consider the views of the Advisory Council on Historic
   Preservation, the agency tasked with the responsibility for implementing
   the NHPA, the appropriate State Historic Preservation Officer, and, if
   affected historic properties are of religious or cultural significance to
   Indian tribes or Native Hawaiian organizations, their representatives. See
   16 U.S.C. SS 470a(a)(3), (d)(6)(B), 470f, 470i. Consistent with the
   Advisory Council's regulations, the Commission's environmental rules
   delegate the task of identification and consideration of the effects that
   proposed facilities may have on historic properties, including the
   initiation of consultation, to its licensees, permittees and applicants,
   but the Commission remains ultimately responsible. See 47 C.F.R. S
   1.1307(a)(4); see also 36 C.F.R. S 800.2(a)(3); Nationwide Agreement, 20
   FCC Rcd at 1076-77 P 5.

   See 36 C.F.R. S 800.1 et seq. Under the NHPA and the Advisory Council's
   implementing regulations, a federal agency may, with the agreement of the
   Advisory Council and the relevant State Historic Preservation Officer or
   the National Conference of State Historic Preservation Officers, adopt
   Programmatic Agreements to tailor the historic preservation review and
   consultation procedures, as well as exempt actions, that are unlikely to
   affect historic properties. See 16 U.S.C. S 470v; 36 C.F.R. S
   800.14(b),(c).

   The requirements of the Nationwide Agreement apply to Commission
   licensees, permittees, registration holders, and applicants or prospective
   applicants for a wireless or broadcast license, authorization or antenna
   structure registration. See Nationwide Agreement, 20 FCC Rcd at 1145,
   Appendix B, Section II. A. 2.

   "APE" refers to the geographic area within which a proposed communication
   facility "may directly or indirectly cause alterations in the character or
   use" of historic properties. Nationwide Agreement, 20 FCC Rcd at 1145,
   Appendix B, Section II. A. 3.

   Id. at 1156, Appendix B, Sections VI. C. 2; VI. C. 4.

   Id. at 1156, Appendix B, Section VI. C. 4. a.

   Nationwide Agreement, 20 FCC Rcd at 1156-1158, Appendix B, Section VI. D.
   The Nationwide Agreement requires licensees to use "reasonable and good
   faith efforts" to identify any Indian tribe or NHO that "may attach
   religious or cultural significance" to the nearby historic properties. Id.
   at 1149-50, Appendix B, Section IV B. Such efforts may include reference
   to the Commission's Tower Construction Notification System through which
   such tribes and organizations register geographical areas that encompass
   significant religious or cultural historic properties of interest. Id. See
   also generally Clarification of Procedures for Participation of Federally
   Recognized Indian Tribes and Native Hawaiian Organizations under the
   Nationwide Programmatic Agreement, Declaratory Ruling, 20 FCC Rcd 17955
   (2005) ("Declaratory Ruling").

   See Nationwide Agreement, 20 FCC Rcd at 1153-1154, Appendix B, Section V.
   Notice to the public may be accomplished through local zoning or historic
   preservation review proceedings.

   Id. at 1160, Appendix B, Section VII A. 1. The Nationwide Agreement
   attaches standardized Packets for collocated antenna construction (FCC
   Form 621) and for new tower construction (FCC Form 620). See Nationwide
   Agreement, 20 FCC Rcd at 1180-1201, Appendix B, Attachments 3 and 4.

   Id. at 1160-61, Appendix B, Section VII. A. 2-4.

   A no effect determination signifies that there are no historic properties
   within the APE, or that there are such properties but the proposed
   facility will not alter their qualifying historic character. See
   Nationwide Agreement, 20 FCC Rcd at 1161, Appendix B, Section VII. B. 1.

   Id. at 1161, Appendix B, Section VII. B. 1 and 2.

   Id. at 1162, Appendix B, Section VII. C. 2. In cases where the SHPO
   affirmatively concurs with a licensee's determination of no adverse
   effect, the process is complete and the licensee may proceed without any
   submission to the Commission. Id. at 1161-62, Appendix B, Section VII C.
   1.

   Id. at 1162-63, Appendix B, Section VII. C. 3-6 and D. In such cases, the
   licensee must file an EA and may not begin construction until the
   Commission makes a finding of no significant impact on the environment.
   See 47 C.F.R. S 1.1308. The NHPA establishes a procedural scheme whereby
   effects on historic properties must be considered prior to federal
   licensing; it does not preclude federally licensed actions that alter or
   impair historic properties. See 16 U.S.C. S 470f; see also National Mining
   Ass'n v. Fowler, 324 F.3d 752, 755 (D.C. Cir. 2003) (noting that the NHPA
   does not impose substantive standards on federal agencies; it only
   requires federal agencies to solicit the Advisory Council's views and take
   into account the effects of its licensed actions on historic properties);
   Davis v. Latscher, 202 F.3d 359, 368-69 (D.C. Cir. 2000); City of
   Alexandria v. Slater, 198 F. 3d862, 871 (D.C. Cir. 1999), cert. denied sub
   nom., 531 U.S. 820 (2000) (finding that the NHPA is a procedural not a
   substantive statute and thus does not bar federally authorized projects
   that significantly or adversely affect historic properties, it only
   requires that federal agencies consider such effects in their decision
   making); Amendment of Environmental Rules in Response to New Regulations
   Issued by the Council on Environmental Quality, Order, 60 RR 2d 13, 16 PP
   7-8, note 12 (1986) (noting that the Commission may authorize actions that
   adversely affect the environment, where it concludes that "the public
   benefits outweigh the environmental consequences").

   Nationwide Agreement, 20 FCC Rcd at 1152, Appendix B, Section IV. G.

   16 U.S.C. SS 470 et seq.

   On November 17, Oklahoma Survey, which performs archaeological review for
   the Oklahoma SHPO, declined to comment on the project because construction
   of the antenna structure had already been completed.

   See Letter from Marjorie Spivak, Esq., counsel for Panhandle
   Telecommunications Systems, Inc., to Dan Abeyta, Assistant Chief, NEPA
   Adjudications, Spectrum Competition and Policy Division, Wireless
   Telecommunications Bureau, Federal Communications Commission (December 8,
   2005).

   See Letter from Rebecca Murphy, Esq., counsel for Panhandle
   Telecommunications Systems, Inc., to Dan Abeyta, Assistant Chief, NEPA
   Adjudications, Spectrum Competition and Policy Division, Wireless
   Telecommunications Bureau, Federal Communications Commission (September
   14, 2006), page 4.

   Id. at 1.

   Id.

   Id.

   In the Declaratory Ruling, the Commission clarified that once an applicant
   has made two good faith efforts over 40 days to obtain a response from an
   Indian tribe or NHO as specified in the Nationwide Agreement, the
   Commission upon notice will send a letter or email to the Indian tribe or
   NHO seeking an indication of the Indian tribe's or NHO's interest in
   participating in review of the proposed construction. If the Indian tribe
   or NHO does not respond within 20 days, it will be deemed to have no
   interest in pre-construction review, and the applicant's obligations with
   respect to that Indian tribe or NHO under the Nationwide Agreement are
   complete. Declaratory Ruling, 20 FCC Rcd at 16092.

   Because the Oklahoma SHPO declined to participate in review of this
   constructed tower, Commission staff has independently reviewed the
   submission and concurs in these determinations.

   See Letter from Dan Abeyta, Assistant Chief, NEPA Adjudications, Spectrum
   Competition and Policy Division, Wireless Telecommunications Bureau,
   Federal Communications Commission, to Marjorie Spivak, Esq., counsel for
   Panhandle Telecommunications Systems, Inc. (August 28, 2006).

   See Letter from Rebecca Murphy, Esq., counsel for Panhandle
   Telecommunications Systems, Inc., to Dan Abeyta, Assistant Chief, NEPA
   Adjudications, Spectrum Competition and Policy Division, Wireless
   Telecommunications Bureau, Federal Communications Commission (September
   14, 2006).

   Id. at 1.

   Id. at 7.

   Id. at 6 and 7.

   47 U.S.C. S 503(b)(1)(B).

   47 C.F.R. S 1.80(a)(1).

   47 U.S.C. S 503(b)(1)(B) and 47 C.F.R. S 1.80(a)(1).

   See 47 U.S.C. S 503(b)(4); 47 C.F.R. S 1.80(f).

   See, e.g., SBC Communications, Inc., 17 FCC Rcd 7589, 7591, P 4 (2002).

   Section 312(f)(1) of the Act defines "willful" as "the conscious and
   deliberate commission or omission of [any] act, irrespective of any intent
   to violate" the law. 47 U.S.C. S 312(f)(1). The legislative history of
   Section 312(f)(1) of the Act clarifies that this definition of willful
   applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765,
   97^th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the
   term in the Section 503(b) context. See, e.g., Southern California
   Broadcasting Co., 6 FCC Rcd 4387, 4388 (1991) ("Southern California").
   Because Panhandle consciously and deliberately constructed this facility,
   its failure to comply with the environmental review requirements was
   willful. Its claim of inadvertent mistake is not a mitigating factor and
   does not negate a finding of willfulness. See Emery Telephone, 13 FCC Rcd
   23854, 23859 PP 11-12 (1998), recon. dismissed in part and den'd in part,
   15 FCC Rcd 7181 (1999); PJB Communications of Virginia, Inc., 7 FCC Rcd
   2088 P 5 (1992); Bureau D'Electronique Appliquee, Inc., 20 FCC Rcd 17893,
   17896 PP 9-12 (Enf. Bur. 2005); Eure Family Ltd. Partnership, 17 FCC Rcd
   7042, 7043 PP 5-7 (Enf. Bur. 2002).

   47 U.S.C. S 503(b); 47 C.F.R. S 1.80(f).

   47 U.S.C. S 503(b)(2)(B). The Commission twice amended Section 1.80(b)(3)
   of the Rules, 47 C.F.R. S 1.80(b)(3), to increase the maxima forfeiture
   amounts, in accordance with the inflation adjustment requirements
   contained in the Debt Collection Improvement Act of 1996, 28 U.S.C. S
   2461. See Amendment of Section 1.80 of the Commission's Rules and
   Adjustment of Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221
   (2000) (adjusting the maximum statutory amounts from $100,000/$1,000,000
   to $120,000/$1,200,000); Amendment of Section 1.80 of the Commission's
   Rules and Adjustment of Forfeiture Maxima to Reflect Inflation, 19 FCC Rcd
   10945 (2004) (adjusting the maximum statutory amounts from
   $120,000/$1,200,000 to $130,000/$1,325,000); see also 47 C.F.R. S 1.80(c).

   47 U.S.C. S 503(b)(2)(D).

   See The Commission's Forfeiture Policy Statement and Amendment of Section
   1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
   17087, 17113-15 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
   Policy Statement"); see also 47 C.F.R. S 1.80.

   Forfeiture Policy Statement, 12 FCC Rcd at 17099 P 22.

   Id.

   See Amendment of Environmental Rules, First Report and Order, Gen. Docket
   No. 88-387, 5 FCC Rcd 2942, 2294 Appendix 3. (1990) (amending Section
   1.1312 of the environmental rules to require that facilities, which are
   subject to geographic blanket licenses and which may affect the
   environment, be evaluated and approved "prior to the initiation of
   construction of the facility") ("First Report"), modified, Second Report
   and Order, 6 FCC Rcd 1716 (1991) (further amending the rules to require
   the facilities of non-dominant common carriers be subject to the same
   pre-construction environmental review as wireless carriers that operate
   under geographic blanket licenses).

   First Report, 5 FCC Rcd at 2943 P 11.

   See A-O Broadcasting Corporation, 17 FCC Rcd 24184, 24190 P 22 (2002),
   forfeiture ordered, 31 Communications Reg. (P&F) 411 (2003), recon.
   denied, 20 FCC Rcd 756 (2005) (determining that the $10,000 base
   forfeiture amount established for antenna lighting and other safety
   violations should apply to violations of Section 1.1307(b) violation,
   given the serious and "public safety nature" of the radio frequency
   radiation maximum exposure limits); see also Americom Las Vegas Limited
   Partnership, 17 FCC Rcd 23689, 23694 P 19 (Enf. Bur. 2002), forfeiture
   ordered, 19 FCC Rcd 9643 (Enf. Bur. 2003), review pending.

   See 47 C.F.R. 1.80(b)(4), Section II. Adjustment Criteria for Section 503
   Forfeitures.

   See Local Phone Services, Inc., 21 FCC Rcd 9974 P 117 (2006) Emery
   Telephone, 13 FCC Rcd at 23858 PP 5, 10; Victoria Cellular Corp., 7 FCC
   Rcd 7853, 7854 PP 10-11 (1992); American Family Ass'n, 17 FCC Rcd 18135,
   18137 P 10 (Enf. Bur. 2002), recon. denied, 18 FCC Rcd 2413 (Enf. Bur.
   2003).

   47 U.S.C. S 504(a).

   See 47 C.F.R. S 1.1914.

   Id.

   Federal Communications Commission DA 06-2063

   2

   Federal Communications Commission DA 06-2063