Click here for Adobe Acrobat version
Click here for Microsoft Word version
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.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-08-IH-5318
BNSF Railway Company ) File No. EB-09-IH-1703
Licensee of Various Authorizations in ) NAL Acct. No. 201032080013
the Wireless Radio Services
) FRN No. 0004772877
1. The Enforcement Bureau of the Federal Communications Commission and
BNSF Railway Company, by their authorized representatives, hereby
enter into this Consent Decree for the purpose of resolving the
Enforcement Bureau's investigation of compliance by BNSF Railway
Company with Section 310(d) of the Communications Act of 1934, as
amended, 47 U.S.C. S: 310(d), and Sections 1.17 and 1.948 of the
Commission's Rules, 47 C.F.R. S:S: 1.17, 1.948.
2. For purposes of this Consent Decree, the following definitions shall
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Adopting Order" means an order of the Bureau adopting this
Consent Decree without any modifications adverse to BNSF Railway
c. "Any" shall be construed to include the word "all," and the word
"all" shall be construed to include the word "any." Additionally,
the word "or" shall be construed to include the word "and," and
the word "and" shall be construed to include the word "or." The
word "each" shall be construed to include the word "every," and
the word "every" shall be construed to include the word "each."
d. "BNSF" means BNSF Railway Company and its
predecessors-in-interest and successors-in-interest.
e. "Bureau" means the FCC's Enforcement Bureau.
f. "Commission" or "FCC" means the Federal Communications
g. "Effective Date" means the date on which the Bureau releases the
h. "Final Order" means that, with respect to the Adopting Order: (1)
no request for stay or similar request is pending; no stay is in
effect; the Adopting Order has not been vacated, reversed, set
aside, annulled or suspended; and any deadline for filing such
request that may be designated by statute or regulation has
passed; (2) no timely petition for rehearing or reconsideration
of the Adopting Order, or protest of any kind, is pending before
the FCC, and the time for filing any such petition or protest has
passed; (3) the FCC does not have the Adopting Order under
reconsideration or review on its own motion and the time for such
reconsideration or review has passed; and (4) the Adopting Order
is not under judicial review, there is no notice of appeal or
other application for judicial review pending, and the deadline
for filing such notice of appeal or other application for
judicial review has passed.
i. "Investigations" mean: (1) the Bureau's investigation relating to
whether BNSF engaged in substantial assignments of certain
licenses to another entity on November 16, 2007, without seeking
or obtaining prior Commission consent, in violation of Section
310(d) of the Act and Section 1.948 of the Commission's Rules;
and (2) the Bureau's investigation relating to whether BNSF
failed to make truthful and accurate statements in certain
applications filed with the Commission, in violation of Section
1.17 of the Commission's Rules.
j. "Parties" means the Bureau and BNSF.
3. BNSF, a subsidiary of Burlington Northern Santa Fe Corporation, is one
of the largest railroads in North America. BNSF employs approximately
40,000 people and operates approximately 6,700 locomotives and an
average of 220,000 freight cars on railroad lines covering
approximately 32,000 route miles in 28 states and two Canadian
provinces. BNSF maintains more than 700 microwave towers, 6,500
antenna structures, and holds nearly 3,500 FCC authorizations for
private land mobile, microwave, marine coast and radio location
4. Section 310(d) of the Act provides that no station license shall be
assigned without prior Commission consent. Section 1.948 of the
Commission's Rules establishes a similar prohibition with regard to
station licenses in the Wireless Radio Services. On November 16, 2007,
BNSF sold its communications system for a portion of railroad track,
including the infrastructure and associated FCC licenses, to Montana
Rail Link, Inc., a regional railroad company operating in Montana,
Idaho, and Washington. The transaction constituted a substantial
assignment of a number of land mobile and microwave licenses. BNSF did
not file applications seeking Commission consent to the assignment of
licenses prior to consummating the transaction. On January 24, 2008,
BNSF filed the first of several applications seeking Commission
consent to the assignment of the subject licenses. BNSF attributed its
failure to timely file such applications to a misunderstanding of the
Commission's licensing processes. BNSF subsequently sought
clarification from FCC licensing staff regarding applicable filing
requirements and filed further applications pursuant to staff
comments. All such applications have since been granted by the
Commission's Wireless Telecommunications Bureau.
5. Section 1.17 of the Commission's Rules requires all statements made to
the Commission to be truthful and accurate. Certain FCC license
application forms, including FCC Forms 601 and 603, inquire whether
the applicant has ever been convicted of a felony. On December 4,
1998, BNSF entered into a plea agreement filed in the U.S. District
Court for the Eastern District of Missouri in St. Louis. Pursuant
thereto, the company pled guilty to one felony count and agreed to pay
a fine and restitution of $10 million and to spend another $9 million
in remediation costs for violating the Clean Water Act and the
Comprehensive Environmental Response, Compensation and Liability Act.
In the intervening years, BNSF has filed a number of applications on
FCC Forms 601 and 603 on which it did not properly disclose its felony
conviction. BNSF states that its employees responsible for preparing
FCC applications had little or no contact with employees involved in
environmental matters and were unaware of BNSF's felony conviction.
BNSF states that upon learning of the omitted felony conviction
disclosures, BNSF employees responsible for preparing FCC applications
voluntarily brought it to the attention of the appropriate BNSF
officers and BNSF's outside counsel, and it was promptly disclosed to
III. TERMS OF AGREEMENT
6. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to approval by the Bureau by incorporation of
such provisions by reference in the Adopting Order, without change,
addition, modification, or deletion.
7. Jurisdiction. BNSF acknowledges that the Commission has jurisdiction
over the matters contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
8. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. Upon release, the
Adopting Order and this Consent Decree shall have the same force and
effect as any other order of the Bureau. Any violation of the Adopting
Order or of the terms of this Consent Decree shall constitute a
separate violation of a Bureau Order, entitling the Bureau to exercise
any rights and remedies attendant to the enforcement of a Commission
9. Termination of Investigations. In express reliance on the covenants
and representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
Investigations on the Effective Date. In consideration for the
termination of the Investigations, BNSF agrees to the terms,
conditions, and procedures contained herein. The Bureau further agrees
that in the absence of new material evidence, the Bureau will not use
the facts developed in the Investigation through the Effective Date of
the Consent Decree, or the existence of this Consent Decree, to
institute, on its own motion, any new proceeding, formal or informal,
or take any action on its own motion against BNSF concerning the
matters that were subject of the Investigations. The Bureau also
agrees that it will not use the facts developed in the Investigations
through the Effective Date of this Consent Decree, or the existence of
this Consent Decree, to institute on its own motion, any proceeding,
formal or informal, or take any action on its own against BNSF with
respect to BNSF's basic qualifications, including its character
qualifications to be a Commission licensee or to hold Commission
10. Compliance Plan. BNSF agrees that it will develop and implement a
comprehensive Compliance Plan for the purpose of ensuring its
compliance with Section 310(d) of the Act and Sections 1.17 and 1.948
of the Commission's Rules. The Compliance Plan shall include, at a
minimum, the following components:
a. Compliance Officer. Within 60 calendar days of the Effective
Date, BNSF will designate a Compliance Officer who will
administer the Compliance Plan, supervise BNSF's compliance with
the Commission's Rules, and serve as the point of contact on
behalf of BNSF for all FCC-related compliance matters.
b. Compliance Manual. Within 60 calendar days of the Effective Date,
the Compliance Officer will develop and distribute a Compliance
Manual to employees and others who perform duties at BNSF that
trigger or may trigger compliance-related responsibilities. The
Compliance Manual will include (i) an overview of the
Commission's requirements, including the need for prior approval
for license assignments and transfers of control; (ii) a
description of the regulatory requirements applicable to the
accurate reporting of information in FCC applications; and (iii)
instructions regarding due diligence for FCC applications. The
Compliance Manual will be updated from time to time as needed.
c. Compliance Training Program. Within 90 calendar days of the
Effective Date, BNSF will begin administering a Compliance
Training Program for employees and others who perform duties at
BNSF that trigger or may trigger compliance-related
responsibilities. This Compliance Training Program will be
presented to new employees who are engaged in such activities,
within the first 60 calendar days of employment or as soon as
practicable. This Compliance Training Program will track the
Compliance Manual, focusing on proper implementation of the
Compliance Manual and tailored to specific user groups.
d. Compliance Reports. BNSF will submit a Compliance Report to the
Commission 90 days after the Effective Date and annually
thereafter on the anniversary of the Effective Date until the
Termination Date. Each Compliance Report will include a
certification by the Compliance Officer that BNSF is, and at all
times since the previous Compliance Report was submitted has
been, in compliance with the terms and conditions of this Consent
Decree and with Sections 310(d) of the Act and of 1.17 of the
Commission's Rules. If the Compliance Officer is not able to so
certify, he shall explain fully the reason(s) therefore. All
Compliance Reports shall be directed to the Chief, Investigations
& Hearings Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554.
e. Termination Date. The requirements relating to the Compliance
Plan shall expire 36 months after the Effective Date.
11. Voluntary Contribution. BNSF agrees that it will make a voluntary
contribution to the United States Treasury in the total amount of
$110,000. The payment shall be made within 30 days after the Effective
Date of the Adopting Order. The payment shall be made by check or
similar instrument, payable to the Order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced in the caption to the Adopting Order. Payment by check or
money order may be mailed to the Federal Communications Commission,
P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail
may be sent to U.S. Bank-Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank Federal Reserve Bank of
New York, and account number 27000001. BNSF will also send electronic
notification within forty-eight (48) hours of the date of said payment
is made to Hillary.DeNigro@fcc.gov.
12. Waivers. BNSF agrees to waive 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 Consent Decree is adopted without
change, addition, modification or deletion. BNSF shall retain the
right to challenge Commission interpretation of the Consent Decree or
any terms contained herein. If either Party, or the United States on
behalf of the Commission, brings a judicial action to enforce the
terms of the Adopting Order, neither BNSF nor the Commission shall
contest the validity of the Consent decree or the Adopting Order, and
BNSF shall waive any statutory right to a trial de novo. BNSF hereby
agrees to waive any claims it may otherwise have under the Equal
Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501 et
seq., relating to the matters addressed in this Consent Decree.
13. Subsequent Rule or 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 the Consent Decree to which BNSF does not expressly consent) that
provision shall be superseded by such Commission rule or Order.
14. Successors and Assigns. BNSF agrees that the terms and conditions of
this Consent Decree shall be binding on its successors, assigns, and
15. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute an
adjudication on the merits or a factual or legal finding or determination
regarding any compliance or noncompliance with the requirements of the Act
or the Commission's Rules and Orders and shall not be construed as an
admission by BNSF.
16. Modifications. This Consent Decree may not be modified without the
advance written consent of both Parties.
17. Paragraph Headings. The headings to the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to affect
the meaning or interpretation of this Consent Decree.
18. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
19. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed and
delivered, shall be an original, and all of which counterparts together
shall constitute one and the same fully executed instrument.
By: _____________________________________ By:
Hillary S. DeNigro James H. Gallegos
Chief, Investigations and Hearings Division V.P. and Corporate General
Enforcement Bureau BNSF Railway Company
Federal Communications Commission
Date: ___________________________________ Date:
On October 16, 2009, the Bureau and BNSF entered into a Tolling Agreement
whereby any statute of limitation period that would have expired after
October 16, 2009 was tolled upon certain terms and conditions pending
resolution of this matter.
Federal Communications Commission DA 09-2584
Federal Communications Commission DA 04-3260