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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-06-SE-344
T-Mobile Northeast, L.L.C. ) NAL/Acct. No. 200732100001
) FRN # 0004677209
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted Date: October 19, 2006 Released Date: October 19, 2006
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. By this Notice of Apparent Liability for Forfeiture ("NAL"), we find
T-Mobile Northeast, L.L.C. ("T-Mobile"), a wholly-owned subsidiary of
T-Mobile USA, Inc., apparently liable for a forfeiture in the amount
of eleven thousand dollars ($11,000) for constructing a facility
before completing environmental review, in apparent willful violation
of Section 1.1307(a)(4) of the Commission's Rules ("Rules").
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
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
3. 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").
4. Specifically, the Collocation Agreement recognizes that installing or
mounting antennas on existing buildings and other structures generally
is environmentally preferable to and less likely to affect historic
properties than the construction of new towers, and thus exempts
certain collocated antennas from the historic preservation review and
consultation procedures. The Collocation Agreement, however, does not
exempt the collocation of antennas on buildings or other structures
that "are over 45 years old." Because the collocation of antennas on
such buildings or structures is not exempt, licensees must consider
whether their actions may affect historic properties, in accordance
with the streamlined review and consultation procedures set forth in
the Nationwide Agreement, prior to initiating construction.
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
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 (i.e., the height of a mounted antenna and building, or the
height of the tower). 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 and must 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 gather information from 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
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 environmental
review process is deemed complete and the licensee may begin
construction. 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 environmental review process is
deemed complete and the licensee may begin construction after it
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 licensee may not begin
construction 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, T-Mobile is subject to the Commission's
environmental rules, including the specific historic preservation
review requirements. In 2005, T-Mobile proposed to collocate three
cluster mounted antennas onto a mast attached to the bell tower roof
of the Temple Ark of Salvation Church ("Temple Church") in
Philadelphia, Pennsylvania, increasing the church's overall height
from 55 feet to 67 feet. Because the church was over 45 years old,
T-Mobile's proposed facility was not exempt under the Collocation
Agreement. T-Mobile thus was required to consider the effects of its
proposed facility on any historic properties located within the half
mile APE, as well as the APE for direct effects, and comply with the
procedures outlined in the Nationwide Agreement, before it initiated
9. To carry out its responsibilities under the Nationwide Agreement,
T-Mobile retained environmental consultant URS Corporation ("URS").
URS researched available records, conducted on-site field
investigations, and ultimately determined that T-Mobile's proposed
facility would not affect historic properties. Specifically, URS
determined that the Temple Church was not a historic property (i.e.,
was not eligible for listing on the National Register), and that the
qualifying historic characteristics of two eligible railroad
properties located within the half mile APE would not be altered by
T-Mobile's proposed facility. On October 13, 2005, URS solicited the
views of the local planning and the local historical agencies. In
addition, on October 14, 2005, URS sought to identify interested
Indian tribes and solicit their views by submitting the proposed
church site to the Commission's Tower Construction Notification System
("TCNS"). The TCNS notification was sent to 17 federally-recognized
Indian tribes that had identified the Philadelphia area as within
their area of geographic preference and was also sent to 19 additional
Indian tribes that had not yet specified their areas of geographic
preference. URS did not, however, prepare and submit the required
Packet (FCC Form 621) to the Pennsylvania SHPO at this time.
10. On October 20, 2005, before any of the 17 federally-recognized Indian
tribes that had identified the Philadelphia area as within their area
of geographic preference had responded, and before URS submitted the
Packet to the Pennsylvania SHPO, T-Mobile commenced construction at
the church site. T-Mobile completed construction on November 9, 2005.
11. T-Mobile later realized that its construction was premature, and
through URS, advised the Pennsylvania SHPO on December 16, 2005, and
the Commission staff on January 9, 2006. In February and March of
2006, conferences calls were held between representatives of T-Mobile,
URS, the Pennsylvania SHPO and the Commission staff to address
historic preservation concerns. On March 23, 2006, URS submitted to
the Pennsylvania SHPO a Packet (FCC Form 621) and a Historical
Resources Survey Form ("HRSF"). The documentation determined that
T-Mobile's facility did not directly affect historic properties
because the Temple Church was not eligible for listing in the National
Register, and did not indirectly (visually) affect the eligible
railroad properties located within the APE because it did not alter
their qualifying characteristics for inclusion in the National
Register. On May 10, 2006, the Pennsylvania SHPO concurred, finding
that T-Mobile's facility "would have no effect on historic
12. Regarding the tribal notifications, on October 21, 2005, URS received
automatic, computer-generated responses via TCNS from five Indian
tribes indicating that there was no need for consultation on the
Temple Church site. On December 16, 2005, after two unsuccessful
attempts by URS to contact the Tuscarora Nation, URS referred the site
to the Commission staff for follow-up contact. Accordingly, on
December 21, 2005, the Commission staff sent a letter to the Tuscarora
Nation giving it a final 20-day period to indicate an interest in the
site. This 20-day period expired without any response from the
13. On August 4, 2006, the Wireless Telecommunications Bureau ("WTB") sent
T-Mobile a Letter of Inquiry ("LOI"). In its response to the LOI,
T-Mobile acknowledges that it erred in constructing the facility at
the church site before completing the historic preservation review
requirements. According to T-Mobile, the error occurred with its
"Philadelphia and Central Pennsylvania markets internal record keeping
procedures," when one of its employees "inadvertently issued
directions to start construction" before the historic preservation
review process was completed. T-Mobile states that, after the company
realized its error, it contacted appropriate state and federal
agencies, completed the required documentation, and provided further
environmental training for its staff. After receiving T-Mobile's LOI
response, the WTB referred the matter to the Enforcement Bureau for
possible enforcement action.
14. 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.
15. The record establishes that T-Mobile commenced and completed
construction at the Temple Church site prior to submission of the
required Packet to the Pennsylvania SHPO and receiving the
recommendation of the Pennsylvania SHPO. The record also establishes
that T-Mobile commenced and completed construction at the Temple
Church site prior to receiving responses from interested Indian tribes
or obtaining Commission guidance. Thus, we find that T-Mobile
commenced and completed construction at the church site prior to
concluding the historic preservation review process in apparent
willful violation of Section 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 T-Mobile.
16. 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."
17. 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.
18. In determining the appropriate base forfeiture amount, we consider the
nature of the T-Mobile'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, including
historic properties. 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 Section 1.1307(a)(4) is a serious
violation and may have a significant effect on 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 historic preservation review
requirements of Section 1.1307(a)(4) of the Rules.
19. This $7,000 base forfeiture amount is subject to adjustment, however.
In this regard, we consider T-Mobile's size and ability to pay a
forfeiture. To ensure that forfeiture liability is a deterrent, and
not simply a cost of doing business, the Commission has determined
that large or highly profitable companies, such as T-Mobile, could
expect the assessment of higher forfeitures for violations. Given
T-Mobile's size and ability to pay a forfeiture, we conclude that an
upward adjustment of the base forfeiture amount to $14,000 is
appropriate. We do not believe that T-Mobile is entitled to any
mitigation of the proposed forfeiture amount because its employee
mistakenly authorized construction before the historic preservation
review was concluded. It is well established that licensees are
responsible, and subject to forfeiture liability, for violations
caused by their employees' actions. We find, however, that T-Mobile is
entitled to a downward adjustment of the proposed forfeiture based on
its voluntary disclosures to Commission staff, and prompt efforts to
address historic preservation concerns by consulting with the
Pennsylvania SHPO and Commission staff, prior to the Commission's
initiation of an investigation. Accordingly, consistent with
precedent, we reduce the proposed forfeiture amount from $14,000 to
20. We propose a forfeiture of $11,000 against T-Mobile for its failure to
comply with the historic preservation review requirements prior to
constructing its facility in apparent willful violation of Section
1.1307(a)(4) of the Rules.
V. ORDERING CLAUSES
21. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, T-Mobile Northeast, L.L.C., IS
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of $11,000 for its apparent willful violation of Section
1.1307(a)(4) of the Rules.
22. 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, T-Mobile Northeast, L.L.C., SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
23. 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.
24. 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.
25. 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
26. 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 Shannon Reilly Kraus, Esq., T-Mobile USA,
Inc., 129290 SE 38^th Street, Bellevue, Washington 98006.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
47 C.F.R. S 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.
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
See Collocation Agreement, 16 FCC Rcd at 5575, Appendix A.
Id. at 5578-79, Appendix A, Section V. Also, under the Collocation
Agreement, a collocated antenna on a non-tower structure is not exempt
from historic preservation review and consultation procedures if: (i) the
building or structure is a designated National Historic Landmark or is
located within or near a historic district, or (ii) the collocation is
subject to a substantiated complaint regarding its effect on one or more
See Nationwide Agreement, 20 FCC Rcd at 1144, Appendix B, Section I. 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. 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, n. 12 (1986) (noting that the
Commission may authorize actions that adversely affect the environment,
where it concludes that "the public benefits outweigh the environmental
Nationwide Agreement, 20 FCC Rcd at 1152, Appendix B, Section IV. G.
The church, formerly the 6th German Evangelical Church, was built in 1898.
See Letter from Zana C. Wolf, Architectural Historian, URS Corporation, to
Philadelphia City Planning Commission (October 13, 2005); Letter from Zana
C. Wolf, Architectural Historian, URS Corporation, to Philadelphia
Historical Commission (October 13, 2005). In September of 2005, prior to
the issuance of these requests, T-Mobile applied for and was granted
zoning and building permits from the City of Philadelphia Department of
Licenses. See supra n. 20 and accompanying text (regarding local
Specifically, the HRSF found that the church was not eligible because its
gothic revival architecture was common, its integrity was compromised by
modern additions, and it lacked association with significant historic
persons or events.
See Letter from Andres MacDonald, Chief, Division of Preservation
Services, Pennsylvania Historical and Museum Commission to Stephen W.
Tull, URS Corporation (May 10, 2006).
On October 27, 2005, one of these five tribes, the Shawnee Tribe, replied
to URS stating, in contradiction of the earlier automatic message, that it
did wish to be consulted on this site. There is nothing in the record to
indicate that URS or T-Mobile initiated any further contact with the
Shawnee Tribe as a result of this request for consultation.
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.
See Letter from Dan Abeyta, Assistant Chief, NEPA Adjudications, Spectrum
Competition and Policy Division, Wireless Telecommunications Bureau,
Federal Communications Commission, to Shannon Reilly Kraus, Corporate
Counsel, T-Mobile USA, Inc. (August 4, 2006). The LOI was sent to
T-Mobile's parent company, T-Mobile USA, Inc., and its parent company
responded. See infra n. 35.
See Letter from Shannon Reilly Kraus, Corporate Counsel, T-Mobile USA,
Inc., to Dan Abeyta, Assistant Chief, NEPA Adjudications, Spectrum
Competition and Policy Division, Wireless Telecommunications Bureau,
Federal Communications Commission (August 31, 2006) ("Response").
Id. at 5.
Id. at 5, and Exhibits 6-7.
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 T-Mobile consciously and deliberately constructed its facility at
the church site, 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)(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.
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.
T-Mobile's parent company, T-Mobile USA, Inc., recently reported that in
2005, it passed the 20 million customer mark and had total revenues of
approximately $14.8 billion. See Press Release, T-Mobile USA Reports
Record Fourth Quarter and Full Year 2005 Results (March 2, 2006).
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100; see also SBC
Communications, Inc., 16 FCC Rcd 19370, 19372 PP 9-12 (Enf. Bur. 2001),
forfeiture ordered, 17 FCC Rcd 7589, 7599 P 23 (2002) (increasing the
$3,000 base forfeiture amount to $100,000, based on a finding that the
carrier had the ability to pay and that its failure to file required
information was egregious and intentional). We find that T-Mobile's
violation was willful, but not egregious or intentional. See supra n. 42.
Nevertheless, because T-Mobile's revenues, like SBC's, are substantial,
the forfeiture amount must be higher to serve a deterrent effect.
See supra n. 42 (noting that inadvertent mistakes are not mitigating
circumstances and do not negate findings of willfulness).
See Bay Television, Inc., 10 FCC Rcd 11509, 11510-11 P 9 (1995);
Sonderling Broadcasting Corp., 69 FCC Rcd 289, 290-291 P 6 (1977);
Wagenvoord Broadcasting Co., 35 FCC 2d 361, 361-62 P 3 (1972); Eure Family
Lmtd. Partnership, 17 FCC Rcd 21861, 21863-64 PP 6-7 (Enf. Bur. 2002);
American Paging, Inc., 12 FCC 10417, 10419-20 P 11 (WTB 1997).
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.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission DA 06-2065
Federal Communications Commission DA 06-2065