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Before the
Federal Communications Commission
Washington, D.C. 20554
+--+
+--+
In the Matter of ) File No.: EB-11-SE-030
)
Horvath Towers, LLC ) Acct No.: 201232100026
)
) FRN: 0013457312
ORDER
Adopted: June 13, 2012 Released: June 14, 2012
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (Bureau) of the Federal Communications
Commission and Horvath Towers, LLC (Horvath). The Consent Decree
resolves and terminates the Bureau's investigation into Horvath's
compliance with Sections 1.1307(a)(6) and 1.1312(a) of the
Commission's rules (Rules) pertaining to the required assessment of
the potential effect on the environment of the construction of a
wireless communications facility.
2. The Bureau and Horvath have negotiated a Consent Decree that resolves
this matter. A copy of the Consent Decree is attached hereto and
incorporated herein by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether Horvath possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and Sections 0.111 and 0.311
of the Rules, the Consent Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Jacqueline L. Stout, President, Horvath Towers, LLC, and
Jason Lehman, Vice President and Chief Operating Officer, Horvath
Towers, LLC, 312 West Colfax Ave., South Bend, IN 46601, as well as to
Barry A. Friedman, Esq., counsel for Horvath Towers, LLC, Thompson
Hine LLP, Suite 800, 1920 N Street, N.W., Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.: EB-11-SE-030
)
Horvath Towers, LLC ) Acct No.: 201232100026
)
) FRN: 0013457312
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
Horvath Towers, LLC, by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Enforcement
Bureau's investigation into possible violations of Sections 1.1307(a)(6)
and 1.1312(a) of the Commission's rules pertaining to the required
assessment of the potential effect on the environment of the construction
of a wireless communications facility.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
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 the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Horvath is subject by virtue of its business activities,
including but not limited to, the Environmental Laws.
f. "Compliance Plan" means the compliance obligations, programs, and
procedures described in this Consent Decree at paragraph 9.
g. "Covered Employees" means all employees and agents of Horvath who
perform duties, or supervise, oversee, or manage the performance of
duties that relate to Horvath's responsibilities under the
Environmental Rules.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Environmental Rules" means Sections 1.1307(a)(6) and 1.1312(a) of the
Rules and other Communications Laws implementing the National
Environmental Policy Act of 1969, as amended.
j. "Horvath" means Horvath Towers, LLC and its predecessors-in-interest
and successors-in-interest.
k. "Investigation" means the investigation commenced by the Bureau upon
receipt of a referral from the Wireless Telecommunications Bureau
regarding Horvath's possible violation of Sections 1.1307(a)(6) and
1.1312(a) of the Rules.
l. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by Horvath to implement
the Compliance Plan.
m. "Parties" means Horvath and the Bureau, each of which is a "Party."
n. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Under the Commission's rules implementing the National Environmental
Policy Act of 1969, as amended (NEPA), applicants and licensees are
required to assess whether proposed facilities may significantly
affect the environment, as defined in Section 1.1307 of the Rules.
This obligation expressly applies to facilities for which no
pre-construction authorization is required. For proposed facilities
that may have a significant environmental impact, applicants and
licensees must prepare and submit to the Commission an Environmental
Assessment (EA) and undergo environmental review by the Commission and
any mandatory consultation with expert agencies, prior to initiating
construction. Section 1.1307(a)(6) of the Rules expressly provides
that the construction of facilities in a flood plain may significantly
effect the environment and therefore require the preparation of an EA.
3. Horvath owns, develops and operates cellular towers for wireless
carriers across the United States. On May 9, 2008, Horvath filed with
the Commission an Application for Antenna Structure Registration (FCC
Form 854) (ASR Application) for a tower located in Partridge, Kansas
(Partridge Site). On November 15, 2008, Horvath completed construction
of the tower at the Partridge Site. However, Horvath had not yet
completed the required pre-construction NEPA review for the Partridge
Site facility. Upon completion of its NEPA review, Horvath discovered
that one of the guy anchors for the Partridge Site tower was located
in a flood plain zone. On December 16, 2008, Horvath filed a
modification to its ASR Application to include an EA that disclosed
that one guy anchor was located within the flood plain zone. The EA
concluded that construction of the Partridge Site facility did not
have a significant environmental effect. Although Horvath included the
EA in its modified ASR Application, the company claims that it
"inadvertently and mistakenly" responded "No" to Question 38 of the
ASR Application, indicating that an EA was not required. Horvath filed
a second modification to its ASR Application on October 18, 2010
correcting the error. The Commission's Wireless Telecommunications
Bureau (Wireless Bureau) reviewed Horvath's EA, and concurred that the
construction at the Partridge Site did not have a significant
environmental effect. The Wireless Bureau subsequently referred this
matter to the Bureau for investigation and possible enforcement
action. The Bureau and Horvath entered into a tolling agreement to
toll the statute of limitations.
III. TERMS OF AGREEMENT
4. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order.
5. Jurisdiction. Horvath agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and that the Bureau
has the authority to enter into and adopt this Consent Decree.
6. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date as defined herein. As of
the Effective Date, the Adopting Order and this Consent Decree shall
have the same force and effect as any other order of the Commission.
Any violation
of the Adopting Order or of the terms 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.
7. Termination of Investigation. 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 the
Investigation. In consideration for the termination of the
Investigation, Horvath 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, 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
Horvath concerning the matters that were the subject of the
Investigation. The Bureau also agrees that it will not, in the absence
of new material evidence, use the facts developed in the Investigation
through the Effective Date, 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 motion against Horvath with respect to
Horvath's basic qualifications, including its character
qualifications, to be a Commission licensee.
8. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Horvath shall designate a senior corporate manager
with the requisite corporate and organizational authority to serve as
Compliance Officer and to discharge the duties set forth below. The
person designated as the Compliance Officer shall be responsible for
developing, implementing, and administering the Compliance Plan and
ensuring that Horvath complies with the terms and conditions of the
Compliance Plan and this Consent Decree. In addition to the general
knowledge of the Communications Laws necessary to discharge his/her
duties under this Consent Decree, the Compliance Officer shall have
specific knowledge of the Environmental Rules prior to assuming
his/her duties.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Horvath agrees that it shall within sixty (60) calendar days
after the Effective Date, develop and implement a Compliance Plan
designed to ensure future compliance with the Communications Laws and
with the terms and conditions of this Consent Decree. With respect to
the Environmental Rules, Horvath shall implement the following
procedures:
a. Operating Procedures on Environmental Rules. Within sixty (60)
calendar days after the Effective Date, Horvath shall establish
Operating Procedures that all Covered Employees must follow to help
ensure Horvath's compliance with the Environmental Rules. Horvath's
Operating Procedures shall include internal procedures and policies
specifically designed to ensure that Horvath performs the required
review of the potential effects on the environment of any proposed
facilities, including facilities for which no pre-construction
authorization is required, prior to the initiation of construction of
such proposed facilities. Horvath's Operating Procedures shall
incorporate a Compliance Checklist that describes the steps that a
Covered Employee must follow to determine whether construction of the
proposed facility is categorically excluded from environmental
processing under Section 1.1306 of the Rules or may have a significant
environmental effect, as defined in Section 1.1307 of the Rules.
b. Compliance Manual. Within sixty (60) calendar days after the Effective
Date, the Compliance Officer shall develop and distribute a Compliance
Manual to all Covered Employees. The Compliance Manual shall explain
the Environmental Rules and set forth the Operating Procedures that
Covered Employees shall follow to help ensure Horvath's compliance
with the Environmental Rules. Horvath shall periodically review and
revise the Compliance Manual as necessary to ensure that the
information set forth therein remains current and complete. Horvath
shall distribute any revisions to the Compliance Manual promptly to
all Covered Employees.
c. Compliance Training. Horvath shall establish and implement a
Compliance Training Program on compliance with the Environmental Rules
and the Operating Procedures. As part of the Compliance Training
Program, Covered Employees shall be advised of Horvath's obligation to
report any noncompliance with the Environmental Rules under paragraph
10 of this Consent Decree and shall be instructed on how to disclose
noncompliance to the Compliance Officer. All Covered Employees shall
be trained pursuant to the Compliance Training Program within sixty
(60) calendar days after the Effective Date, except that any person
who becomes a Covered Employee at any time after the Effective Date
shall be trained within thirty (30) calendar days after the date such
person becomes a Covered Employee. Horvath shall repeat the compliance
training on an annual basis, and shall periodically review and revise
the Compliance Training Program as necessary to ensure that it remains
current and complete and to enhance its effectiveness.
10. Reporting Noncompliance. Horvath shall report any noncompliance with
the Environmental Rules and with the terms and conditions of this
Consent Decree within fifteen (15) calendar days after its discovery
of such noncompliance. Such reports shall include a detailed
explanation of (i) each instance of noncompliance; (ii) the steps that
Horvath has taken or will take to remedy such noncompliance; (iii) the
schedule on which such proposed remedial actions will be taken; and
(iv) the steps that Horvath has taken or will take to prevent the
recurrence of any such noncompliance. All reports of noncompliance
shall be submitted to the Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W., Rm. 3-C366, Washington, D.C. 20554, with copies
submitted electronically to Nissa Laughner at Nissa.Laughner@fcc.gov
and Ricardo Durham at Ricardo.Durham@fcc.gov.
11. Compliance Reports. Horvath shall file Compliance Reports with the
Commission ninety (90) calendar days after the Effective Date, twelve
(12) months after the Effective Date and twenty-four (24) months after
the Effective Date.
a. Each Compliance Report shall include a detailed description of
Horvath's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree and the Environmental Rules. In
addition, each Compliance Report shall include a certification by the
Compliance Officer, as an agent of and on behalf of Horvath, stating
that the Compliance Officer has personal knowledge that Horvath (i)
has established and implemented the Compliance Plan; (ii) has utilized
the Operating Procedures since the implementation of the Compliance
Plan; and (iii) is not aware of any instances of noncompliance with
the terms and conditions of this Consent Decree, including the
reporting obligations set forth in paragraph 10 hereof.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such certification and must comply
with Section 1.16 of the Rules and be subscribed to as true under
penalty of perjury in substantially the form set forth therein.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Horvath, shall
provide the Commission with a detailed explanation of the reason(s)
why and describe fully (i) each instance of noncompliance; (ii) the
steps that Horvath has taken or will take to remedy such
noncompliance, including the schedule on which proposed remedial
actions will be taken; and (iii) the steps that Horvath has taken or
will take to prevent the recurrence of any such noncompliance,
including the schedule on which such preventive action will be taken.
d. All Compliance Reports shall be submitted to Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Rm. 3-C366, Washington, D.C. 20554.
All reports shall also be submitted electronically to Nissa Laughner
at Nissa.Laughner@fcc.gov and to Ricardo Durham at
Ricardo.Durham@fcc.gov.
12. Termination Date. Unless stated otherwise, the obligations set forth
in paragraphs 8 through 11 of this Consent Decree shall expire
twenty-four (24) months after the Effective Date.
13. Voluntary Contribution. Horvath agrees that it will make a voluntary
contribution to the United States Treasury in the amount of six
thousand five hundred dollars ($6,500). The payment must be made
within thirty (30) calendar days after the Effective Date. The payment
must 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 referenced in the caption to the Adopting
Order. Payment by check or money order may be mailed to 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 TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the Account number in block
number 23A (call sign/other ID), and enter the letters "FORF" in block
number 24A (payment type code). Horvath must also send electronic
notification on the date said payment is made to Nissa Laughner at
Nissa.Laughner@fcc.gov, to Ricardo Durham at Ricardo.Durham@fcc.gov,
and to Samantha Peoples at Sam.Peoples@fcc.gov.
14. Waivers. Horvath 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 Bureau issues an Adopting
Order as defined herein. Horvath 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 Horvath nor the Commission shall contest the
validity of the Consent Decree or of the Adopting Order, and Horvath
shall waive any
statutory right to a trial de novo. Horvath hereby agrees to waive any
claims it may have under the Equal Access to Justice Act, relating to the
matters addressed in this Consent Decree.
15. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
proceeding.
16. 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 this Consent Decree to which Horvath does not expressly
consent) that provision will be superseded by such rule or Commission
order.
17. Successors and Assigns. Horvath agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
18. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Investigation. The Parties further agree that this
Consent Decree does not constitute either an adjudication on the
merits or a factual or legal finding or determination regarding any
compliance or noncompliance with the Communications Laws.
19. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
20. Paragraph Headings. The headings of 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.
21. Authorized Representative. The individual signing this Consent Decree
on behalf of Horvath represents and warrants that she is authorized by
Horvath to execute this Consent Decree and to bind the company to the
obligations set forth herein. The FCC signatory represents that she is
signing this agreement in her official capacity and that she is
authorized to execute this Consent Decree.
22. 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.
________________________________
John D. Poutasse
Chief
Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
____________________________________
Ms. Jacqueline L. Stout
President
Horvath Towers, LLC
________________________________
Date
47 C.F.R. S:S: 1.1307(a)(6), 1.1312(a).
We note that in a Public Notice released June 13, 2012, the Wireless
Telecommunications Bureau determined, "based on an independent review of
the Environmental Assessment" filed by Horvath, that the facility at issue
will not significantly impact the environment. Antenna Structure
Registration Service Information, Public Notice, Report No. CWS-12-61
(June 13, 2012).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S:S: 1.1307(a)(6), 1.1312(a).
National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat.
852 (1970), as amended (codified at 42 U.S.C. S:S: 4321-4347).
See 47 C.F.R. S:S: 1.1307(a)(6), 1.1312(a).
See supra note 2.
47 C.F.R. S: 1.1307.
Id. S: 1.1312(a) ("In the case of facilities for which no Commission
authorization prior to construction is required by the Commission's rules
and regulations, the licensee or applicant shall initially ascertain
whether the proposed facility may have a significant environmental impact
as defined in S: 1.1307 of this part.").
Id. S: 1.1311.
See id. S:S: 1.1308, 1.1312(b).
Id. S: 1.1307(a)(6).
See File No. A0593807 (filed May 9, 2008).
See File No. A0616634 (filed Dec. 16, 2008).
See id.
Memorandum from Barry Friedman, Esq., Thompson Hine, LLP, Counsel for
Horvath Towers, LLC, to Ricardo Durham, Senior Deputy Division Chief,
Spectrum Enforcement Division, FCC Enforcement Bureau (Feb. 14, 2011) (on
file in EB-11-SE-030).
See File No. A0698790 (filed Oct. 18, 2010).
See, e.g., Tolling Agreement Extension, File No. EB-11-SE-030, executed by
and between Ricardo M. Durham, Senior Deputy Division Chief, on behalf of,
John D. Poutasse, Chief, Spectrum Enforcement Division, Enforcement
Bureau, and Jacqueline L. Stout, President, Horvath Towers, LLC (Apr. 6,
2012).
47 C.F.R. S: 1.1306.
Id. S: 1.1307.
Id. S: 1.16.
Equal Access to Justice Act, Pub L. No. 96-481, 94 Stat. 2325 (1980)
(codified at 5 U.S.C. S: 504); see also 47 C.F.R. S:S: 1.1501-1.1530.
Federal Communications Commission DA 12-867
8
Federal Communications Commission DA 12-867