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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-06-SE-336
United States Cellular Corporation ) NAL/Acct. No. 200732100014 ) FRN:
Adopted: February 23, 2007 Released: February 26, 2007
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the Consent Decree entered into between the
Enforcement Bureau ("Bureau") and United States Cellular Corporation
("US Cellular"). The Consent Decree terminates an investigation into
US Cellular's compliance with the environmental regulations set forth
in Sections 1.1307, 1.1308, 1.1311 and 1.1312 of the Commission's
Rules ("Rules") with respect to its construction of a wireless base
station near Fries, Virginia.
2. The Bureau and US Cellular have negotiated the terms of a Consent
Decree that would resolve this matter. A copy of the Consent Decree is
attached hereto and incorporated by reference.
3. Based on the record before us, we conclude that no substantial or
material questions of fact exist with respect to this matter as to
whether US Cellular possesses the basic qualifications, including
those related to character, to hold or obtain any FCC license or
4. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest will be served by
adopting the Consent Decree and terminating this investigation.
5. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the Act
and Sections 0.111 and 0.311 of the Rules, the attached Consent Decree
6. IT IS FURTHER ORDERED that the Enforcement Bureau's investigation IS
7. IT IS FURTHER ORDERED that US Cellular shall make its voluntary
contribution to the United States Treasury, as specified in the
Consent Decree, by credit card through the Commission's Debt and
Credit Management Center at (202) 418-1995, or by mailing a check or
similar instrument, payable to the order of the Federal Communications
Commission, to the 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.
8. IT IS FURTHER ORDERED that copies of this Order and Consent Decree
shall be sent by regular first class mail and certified mail, return
receipt requested, to James R. Jenkins, Vice President, Legal and
Regulatory Affairs, United States Cellular Corporation, 8410 W. Bryn
Mawr, Suite 700, Chicago, Illinois 60631 and to Peter Connolly, Esq.,
Holland & Knight, 2099 Pennsylvania Avenue, N.W., Suite 100,
Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
The Enforcement Bureau ("Bureau") of the Federal Communications Commission
(the "FCC" or "Commission") and United States Cellular Corporation ("US
Cellular"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
regarding US Cellular's compliance with the environmental regulations set
forth in Sections 1.1307, 1.1308, 1.1311, and 1.1312 of the FCC's Rules
with respect to the construction of a wireless base station near Fries,
1. US Cellular provides wireless service in numerous markets nationwide,
including the City of Galax in Virginia Rural Service Area #2. In
early 2005, US Cellular decided to reconfigure the antennas on its
Galax, Virginia tower in order to implement a sectorization of the
cell. This necessitated construction of an additional cell near Fries,
Virginia to preserve wireless service to the Fries area.
2. In September of 2005, US Cellular obtained local zoning consent to
construct the Fries tower and engaged the services of an environmental
consultant to secure necessary environmental and other regulatory
consents to construct the tower. Through its consultant, during the
summer and autumn of 2005, US Cellular took various steps necessary to
secure the necessary environmental consents, including notification to
the Virginia State Department of Historic Resources ("VDHR"), and
communications with the U.S. Bureau of Indian Affairs, Virginia
Department of Inland Fisheries, and U.S. Fish and Wildlife Service
regarding the proposed tower. On November 8, 2005, the VDHR, which
serves as the Virginia State Historic Preservation Officer sent to US
Cellular's consultant a letter, acknowledging the information
previously filed, but stating that FCC Form 620, the "New Tower
Submission Packet" should also be filed in order for the tower to be
reviewed. Neither US Cellular nor the FCC learned of this letter until
3. On November 8, 2005, US Cellular began construction of the access road
to the Fries tower, and erected the tower on December 23, 2005, but
did not install transmitting antennas. On January 3, 2006, based on a
complaint from a member of the public about the Fries tower, the FCC's
Wireless Telecommunications Bureau contacted US Cellular's FCC
attorney and informed him that no Form 620 had been filed. US Cellular
immediately stopped all work on the tower project. Subsequently, US
Cellular engaged the services of another environmental consultant,
Stokes Environmental, which prepared and submitted the Form 620, with
attachments, to the VDHR and to the Eastern Band of Cherokee Indians
("EBCI"), the only Indian tribe which had expressed an interest in the
proposed tower through the FCC's Tower Construction Notification
4. During 2006, US Cellular provided documentation to the Wireless
Telecommunications Bureau regarding the Fries tower either through
submissions to the FCC or through copies of submissions to VDHR. Such
documentation has included but is not limited to letters and other
filings dated January 23, 2006, February 6, 2006, April 6, 2006, April
7, 2006, April 24, 2006, May 30, 2006, June 20, 2006 and August 23,
5. During 2006, US Cellular engaged in extensive correspondence with
VDHR, the Town of Fries, Grayson County, the EBCI and other interested
parties concerning the Fries tower. On May 30, 2006, the VDHR released
a letter stating that the Fries tower had an adverse affect on the
Fries Historic District and Fries Recreation Center. US Cellular
subsequently entered into negotiations with the VDHR, the Town of
Fries and Grayson County regarding possible measures to be
incorporated into a Memorandum of Agreement ("MOA") to mitigate any
adverse effect from the Fries tower, in accordance with the provisions
of the Nationwide Programmatic Agreement. On February 23, 2007, US
Cellular, the Wireless Telecommunications Bureau, and VDHR entered
into an MOA with respect to mitigation measures for the Fries tower.
6. On November 30, 2006, the EBCI informed US Cellular that the Fries
tower did not have an "adverse effect upon known cultural resources
important to the Cherokee people." The letter also stated that if in
the future cultural resources or human remains were inadvertently
discovered, Section 106 consultation between the United States
Government and the EBCI would be required.
7. For the purposes of this Consent Decree, the following definitions
a. "Act" means the Communications Act of 1934, as amended;
b. "Bureau" means the Enforcement Bureau of the Federal Communications
c. "Commission" means the Federal Communications Commission;
d. "Effective Date" means the date on which the Bureau releases the
e. "Investigation" means the investigation and any related proceedings
commenced by the Wireless Telecommunications Bureau in January 2006 and
the Bureau in October 2006 regarding construction of the Fries tower with
respect to possible non-compliance by US Cellular with the requirements
contained in Sections 1.1307, 1.1308, 1.1311 and 1.1312 of the FCC's Rules
during the period November 8, 2005 to December 23, 2005;
f. "MOA" means the Memorandum of Agreement entered into between US
Cellular, the Wireless Telecommunications Bureau and the VDHR on February
23, 2007 concerning mitigation measures for US Cellular's Fries, Virginia
g. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms and conditions of this Consent Decree;
h. "Parties" means US Cellular and the Bureau;
i. "Rules" means the Commission's regulations set forth in Title 47 of the
Code of Federal Regulations; and
j. "US Cellular" means United States Cellular Corporation and any
telecommunications carrier subsidiary, successor, or communications
carrier controlled by United States Cellular Corporation.
IV. TERMS OF AGREEMENT.
8. US Cellular agrees that the Bureau has jurisdiction over it and the
subject matter contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
9. The Parties agree that the provisions of this Consent Decree shall be
subject to the final approval by the Bureau by incorporation of such
provisions by reference in the Adopting Order.
10. The Parties agree that this Consent Decree shall constitute a final
settlement of the Investigation. In express reliance on the covenants
and representations contained herein and to avoid the potential
expenditures of public resources, the Bureau agrees to terminate the
Investigation. In consideration for the termination of these matters
and in accordance with the terms of this Consent Decree, US Cellular
agrees to the terms, conditions, and procedures contained herein.
11. The Parties agree that this Consent Decree shall become binding on the
Parties on the Effective Date. Upon release, the Adopting Order and
this Consent Decree shall have the same force and effect as any other
final order of the Commission and any violation of the terms and
conditions of this Consent Decree shall constitute a violation of a
12. The Parties agree that this Consent Decree does not constitute either
an adjudication on the merits or a federal or legal finding or
determination regarding any compliance or noncompliance by US Cellular
with the requirements of the Act or the Commission's rules or orders.
The Parties agree that this Consent Decree is for settlement purposes
only, and that by agreeing to this Consent Decree, US Cellular does
not admit or deny any noncompliance, violation, or liability
associated with or arising from its actions or omissions involving the
Act or the Commission's Rules which are the subject of this Consent
13. US Cellular agrees to make a voluntary contribution to the United
States Treasury, without further protest or recourse to a trial de
novo, in the amount of fourteen thousand dollars ($14,000) within
thirty (30) days of the Effective Date. The voluntary payment does not
constitute a fine or penalty for, or an admission of, the violation of
any law. Such contribution shall be made by credit card through the
Commission's Debt and Credit Management Center at (202) 418-1995, or
by mailing a check or similar instrument, payable to the order of the
Federal Communications Commission, to the 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. The payment should reference NAL/Acct. No.
200732100014 and FRN # 0008308199.
14. To resolve and terminate the Investigation, and to ensure compliance
with the FCC's environmental rules, US Cellular also agrees to the
a. US Cellular will fulfill the conditions specified in the MOA applicable
to it with respect to the Fries tower and Town of Fries which have been
agreed to among US Cellular, the Wireless Telecommunications Bureau, and
b. US Cellular will implement on a company wide basis detailed procedures
to ensure environmental compliance. These procedures may be altered from
time to time if US Cellular determines that other procedures may better
enable it to comply with the FCC environmental requirements. US Cellular
shall notify the Bureau and the Wireless Telecommunications Bureau in
writing regarding such modifications at least 25 calendar days before they
take effect and either the Bureau or the Wireless Telecommunications
Bureau may disapprove such modification within 25 calendar days of their
receipt of US Cellular's modification.
c. US Cellular has recently commissioned and made part of its internal
procedures "A Scope of Work For Compliance With the FCC's Environmental
Rules" manual. The "Scope of Work" manual describes the FCC's
environmental requirements and the federal laws and policies that are
cited in or related to the FCC's environmental rules. It also spells out
in detail the responsibilities for environmental compliance of US
Cellular's outside consultants dealing with tower construction and those
employees within US Cellular who supervise the consultants and the methods
by which environmental compliance will be assured at each stage of the
tower construction process. Attached to the Scope of Work manual are
"checklists" by which responsible US Cellular employees may track
environmental compliance for each new and collocated tower.
d. US Cellular will provide annual training to its employees and
consultants responsible for environmental compliance to ensure that they
are aware of their responsibilities to ensure compliance with
environmental requirements by both US Cellular and any consultants it may
employ. US Cellular's Regulatory Compliance Manager, and such other
employees and consultants as he considers appropriate , will also complete
the class on "Section 106 Essentials" given by the Advisory Council on
Historic Preservation or its equivalent.
e. US Cellular has recently appointed an experienced Regulatory Compliance
Manager, who is thoroughly familiar with the FCC's environmental
requirements. He will monitor and supervise US Cellular's regulatory
f. US Cellular will submit reports, on an annual basis, to the Enforcement
Bureau and the Wireless Telecommunications Bureau identifying all of US
Cellular's Section 106 reviews that were active during the reporting
period. For each such Section 106 review, US Cellular will specify the
dates of any FCC Form 620 submission to the State Historic Preservation
Officer and notification to tribes, local government and the public, as
well as the resolution or current status of the review.
15. The Bureau agrees that, in the absence of new material evidence, it
will not institute, on its own motion or in response to third-party
objection, any new proceeding, formal or informal, or take any action
on its own motion against US Cellular for possible past violations of
the environmental regulations in Part 1 of the Rules that were the
subject of the Investigation. The Bureau also agrees that, in the
absence of new material evidence, it will not use the facts developed
in the Investigation through the Effective Date, or the existence of
this Consent Decree, to institute on its own motion, or recommend to
the Commission, any new proceeding, formal or informal, or to take any
action on its own motion, against US Cellular concerning the matters
that were the subject of the Investigation. The Bureau further agrees
that, in the absence of new material evidence, it will not use the
facts developed in this Investigation through the Effective Date, or
the existence of this Consent Decree, to institute on its own motion,
or recommend to the Commission, any proceeding, formal or informal, or
take any action on its own motion, against US Cellular with respect to
its basic qualifications, including its character qualifications, to
be a Commission licensee.
16. US Cellular waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay or
to otherwise challenge or contest the validity of this Consent Decree
and the Adopting Order, provided the Order adopts this Consent Decree
without change, addition, or modification.
17. The Parties agree that if either Party (or the United States on behalf
of the Commission) brings a judicial action to enforce the terms of
the Order adopting this Consent Decree, neither US Cellular nor the
Bureau shall contest the validity of the Consent Decree or the
Adopting Order, and US Cellular will waive any statutory right to a
trial de novo regarding the terms or validity of the Consent Decree.
US Cellular, however, may present evidence that it has not violated
the Consent Decree.
18. US Cellular agrees that any material violation of any term of this
Consent Decree shall constitute a separate violation of a Commission
order, entitling the Commission to exercise any rights and remedies
attendant to the enforcement of a Commission order. The Parties agree
that if any provision of the Consent Decree conflicts with any
subsequent rule or order adopted by the Commission (except an order
specifically intended to revise the terms of this Consent Decree to
which US Cellular does not consent), that provision will be superseded
by such Commission rule or order.
19. This Consent Decree cannot be modified without the advance written
consent of both Parties.
20. In the event this Consent Decree is rendered invalid by a court of
competent jurisdiction, it shall become null and void and may not be
used in any manner, in any legal proceeding.
21. The Parties agree that the requirements of this Consent Decree shall
expire two (2) years after the Effective Date.
23. The Consent Decree may be signed in counterparts.
For United States Cellular Corporation:
Date Grant B. Spellmeyer
For the Enforcement Bureau:
Date Kris Anne Monteith
Chief, Enforcement Bureau
47 C.F.R. SS 1.1307, 1.1308, 1.1311 and 1.1312.
47 U.S.C. S 154(i).
47 C.F.R. SS 0.111 and 0.311.
47 C.F.R. SS 1.1307, 1.1308, 1.1311 and 1.1312.
On November 22, 2005, the VDHR also sent the Wireless Telecommunications
Bureau a letter advising that the Fries tower was being constructed
without completion of the historic review process. See Letter from Kristen
Hill, Virginia Department of Historic Resources to Ivy Harris, Federal
Communications Commission, Wireless Telecommunications Bureau (November
22, 2005). The Wireless Telecommunications Bureau, however, did not
receive this letter.
See Letter from Ethel R. Eaton, Manager, Office of Review and Compliance,
Virginia Department of Historic Resources, to Jeffrey Steinberg, Federal
Communications Commission, Wireless Telecommunications Bureau, Spectrum
and Competition Policy Division (May 30, 2006).
Nationwide Programmatic Agreement Regarding the Section 106 National
Historic Preservation Act Review Process, Report and Order, 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
Letter from Tyler B. Howe, Tribal Historic Preservation Specialist,
Eastern Band of Cherokee Indians, to M. E. Gibson, Jr., Esq., Tremblay &
Smith, LLP (November 30, 2006).
Section 106 of the National Historic Preservation Act ("NHPA"), 16 U.S.C.
S 470f, requires a federal agency to 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. In considering such effects, the NHPA requires a 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 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 Programmatic Agreement, 20 FCC Rcd at 1076-77.
(...continued from previous page)
Federal Communications Commission DA 07-804
Federal Communications Commission DA 07-804