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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Western Wireless Corporation ) File No. EB-02-TS-659
and ) NAL/Acct. No. 200332100004
WWC Holding Co., Inc., ) FRN 0003764719
Licensee of Cellular Radio )
Station KNKN343, )
CMA583 - North Dakota 4 - )
McKenzie RSA
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 6, 2003 Released: May 12, 2003
By the Commission: Chairman Powell issuing a separate statement.
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Western Wireless Corporation and its
wholly owned subsidiary, WWC Holding Co., Inc. (``WWC''),
cellular radio licensee in CMA583 North Dakota 4 - McKenzie RSA
(collectively ``Western''), apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as
amended (``Act''),1 by operating radio transmitting equipment
from an unauthorized location in Medora, North Dakota (``Medora
Site'' or ``Medora Tower''). Specifically, Western unlawfully
constructed and continues to operate a facility that has a
significant environmental effect without obtaining Commission
authorization following preparation of an Environmental Impact
Statement (``EIS'').2 We conclude, pursuant to Section 503(b) of
the Act, that Western is apparently liable for a forfeiture in
the amount of two hundred thousand dollars ($200,000).3
2. Western's unlawful operation here stems from its
failure to comply with the Commission's environmental rules.
Continued unlawful operation may result in additional enforcement
action, e.g., increased forfeitures, initiation of a license
revocation proceeding, or both. In this regard, we order Western
to provide a sworn statement within 30 days regarding its plan to
cease operation from the Medora Site or bring that site into
compliance with our environmental rules. We also remind Western
of its obligation to file an Environmental Assessment (``EA'') if
any of its actions in response to this NAL or subsequent orders
may have a significant effect on the environment.
II. BACKGROUND
3. Under the Commission's rules implementing the National
Environmental Policy Act of 1969, as amended, (``NEPA''),4
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 Commission's Rules
(``Rules'').5 The rules provide that licensees must prepare and
submit to the Commission an EA for an action that may have a
significant environmental effect.6 This includes actions for
which no pre-construction authorization is otherwise required.7
In light of the Commission's obligations under the National
Historic Preservation Act of 1966, as amended (``NHPA''),8
Section 1.1307(a)(4) of the Rules requires that a licensee must
prepare and submit to the Commission an EA if a planned facility
may affect one or more properties listed, or eligible for
listing, in the National Register of Historic Places (``NRHP'')
(``Historic Properties'').9 If the Commission finds after
submission of an EA that a proposed action will not have a
significant environmental effect, it will issue a finding of no
significant impact (``FONSI'') and process the application.10 If
a proposed action will have a significant environmental effect
and the applicant does not choose to amend its application,11 the
Commission will not grant the application unless the Commission
first completes an EIS.12
4. In August 1999, Western constructed a 180-foot monopole
tower on a bluff overlooking Medora, North Dakota, for use by WWC
in connection with its operation of Station KNKN343 in CMA583 -
North Dakota 4 - McKenzie. In November 1999, the State
Historical Society of North Dakota (``Historical Society''),
which is the State Historic Preservation Officer (``SHPO'') for
North Dakota, submitted a letter to the Wireless
Telecommunications Bureau (``WTB'') regarding the tower.13 The
letter states that Western's tower adversely affects properties
which are listed in the National Register of Historic Places
and/or the State Register of Historic Places.14 The letter
indicates that the tower affects the following nearby properties
through a visual intrusion into their setting: the Chateau de
Mores State Historic Site, the de Mores Packing Plant State
Historic Site, the Theodore Roosevelt Maltese Cross Cabin, the
Peaceful Valley Ranch, and various other historic properties in
and around Medora. Several of the Historic Properties are within
one quarter mile of the tower15 and the tower is in open view
from all of these sites.16
5. In December 1999, WTB informed Western Wireless that
Western's tower ``may have an adverse effect on historic
properties . . . .''17 The Bureau also informed Western that
``until the requirements of the Commission's environmental rules
are met, ``construction and operation'' of the facilities ``may
be in violation of the Commission's environmental rules'' and
``[a] company violating these rules may be subject to forfeitures
. . . .''18 The Bureau also directed Western to meet with the
SHPO.
6. Western continued to operate at the site. For several
years, WTB worked with Western and the Historical Society to
attempt to resolve the matter informally. These efforts having
proved unsuccessful, WTB referred the matter to the Enforcement
Bureau (``EB'') for possible enforcement action.19 On October
17, 2002, EB sent a letter of inquiry (``LOI'') to Western,
requesting information concerning Western's efforts to assess
whether the tower might have a significant effect on the
environment and why it did not submit an EA and undergo
environmental review prior to constructing the tower.20 Western
submitted a response to the LOI on November 1, 2002.21 In its
response to the LOI, Western states that it complied in good
faith with the Commission's rules prior to constructing its
tower. Western claims that it is now able to provide ``high-
quality'' cellular service to Medora and portions of I-94
adjacent to Medora. Western argues that prior to construction
of the tower, the Governor of North Dakota requested that Western
provide cellular service in Medora for the Western States
Governors' Conference. According to Western, the lack of
cellular coverage highlighted the need for cellular service in
Medora, and with the support of the Mayor of Medora, it sought
ways to improve cellular coverage in the area. Prior to the
submission of a permit application for the current tower, argues
Western, it worked with the City and consulted with the National
Park Service to develop a set of three alternative sites for a
possible tower. Western contends that the City selected the
third alternative, which is the current location, and that this
land was made available by the Theodore Roosevelt Medora
Foundation, a local historic preservation group. Western
indicates also that the City selected the tower location as the
alternative farthest from any historic properties without being
located within the national park, and that according to Western's
engineer, the nearest historic site to the tower is approximately
¼ mile away. Western states that it submitted a ``City of
Historic Medora Zoning - Development Permit and Application
Form'' (``Application'') for consideration by the City Council
proposing a cellular communications facility. Western also
indicates that it submitted a scale drawing of the tower and
tower site with its application.
7. Western claims that in reviewing zoning applications
such as Western's, the City Council is charged with examining the
possible effects of any proposed construction upon the historical
integrity of the City. Western states that, under the City's
Zoning Articles, the City Council is directed ``to regulate all
facets of construction to preserve the historical integrity of
the City of Medora,'' and ``to prevent structures which detract
from the aesthetic harmony, style, form, color, proportion,
texture or materials of the district.''22 Further, Western
claims that the Zoning Articles state that ``[i]n order to
protect the City's historical integrity, the entire City and the
areas under its zoning jurisdiction are hereby zoned as a
Historical Integrity District.''23 Western states that this
includes the site where it constructed its tower. Western
indicates that its zoning application was placed on public
notice, the community was given five days in which to file
comments against the proposed tower construction, and no comments
were received. Western states that subsequently, the Zoning
Board unanimously approved its application on June 1, 1999.
8. Western asserts that it applies the criteria set forth
in the Commission's rules to determine whether a proposed action
may have a significant effect on the environment. Western also
states that one of these criteria states that an EA is required
if a proposed facility ``'may affect' a historical property of
national significance.''24 Western adds that although the rule
does not explicitly prescribe how licensees must make this
assessment, a note following the rules suggests that ``inquiries
also may be made to the appropriate State Historic Preservation
Officer,'' and thus such inquiry is one option available to
licensees.25 Western contends that in light of the foregoing,
and particularly the city's review and approval, it believed the
tower to be categorically excluded from FCC environmental
processing on historic preservation grounds.26 Western states
that after its tower was constructed, it learned that the
Historical Society had raised concerns with the Commission
regarding the effect of the tower on properties listed or
eligible for listing in the NRHP. Western claims that when it
became aware of such concerns it undertook an extensive effort to
obtain public comment and offered various mitigation measures,
but that none of these proposals has been satisfactory to all
parties. Western also states that it remains willing to prepare
an EA upon Commission request.27
9. On January 14, 2003, the Enforcement Bureau sent a
second LOI to Western, requesting it to explain under what
authority it believes it may provide service from its tower in
Medora. In addition, Western was directed to explain what steps
it took to comply with Section 1.1307(a)(4) of the Rules and what
efforts it made to determine whether the Chateau de Mores, the de
Mores Packing Plant, the Theodore Roosevelt Maltese Cross Cabin
and the Peaceful Valley Ranch are listed, or are eligible for
listing, in the NRHP.28 Western submitted a response to the
second LOI on February 3, 2003.29 Western indicates that under
Section 22.165(c) of the Rules, a licensee may operate
``additional transmitters at additional locations on the same
channel or channel block as its existing system'' without prior
Commission approval if certain conditions are met.
10. Western contends that although its five year build out
period in the McKenzie RSA expired before construction of the
Medora Tower, the service area boundary of that site remained
within Western's authorized Cellular Geographic Service Area
(``CGSA''). Also, Western argues that its environmental review
under Sections 1.1301 through 1.1319 of the Rules indicated that
construction and operation of the Medora site would not have a
significant environmental effect. Western also states that it
relied on the City Council's approval process to determine
whether its tower would affect historic properties listed or
eligible for listing in the NRHP. Western claims, that with the
exception of the Peaceful Valley Ranch, the historic properties
listed in the Commission's second LOI, as well as several other
historic properties, are located in areas under the City's zoning
jurisdiction. Western claims that potential impacts on the
Peaceful Valley Ranch, located approximately five miles from the
tower, had not previously been raised as an issue by any parties.
30 Western notes that a complete listing of properties in the
NRHP is available online, but argues that the focus of its review
has been whether its tower affected any of these sites. Finally,
Western summarizes the information it provided in response to the
first LOI.
III. DISCUSSION
11. Section 22.165 of the Rules states in part that ``a
[Public Mobile Services] licensee may operate additional
transmitters at additional locations on the same channel or
channel block as its existing system without obtaining prior
Commission approval'' if certain conditions are met.31 One of
the conditions that must be met is that the ``additional
transmitters must not have a significant environmental effect''
under Sections 1.1301 through 1.1319 of the Rules.32 Similarly,
under Section 1.947(a) of the Rules, ``[a]ll major modifications
[of wireless licenses], as defined in § 1.929 of [the Rules] . .
. , require prior Commission approval.''33 Section 1.929(a)
classifies the following as a ``major'' modification for all
services: ``[a]pplication or amendment requesting authorization
for a facility that would have a significant environmental effect
as defined by §§ 1.1301 through 1.1319 of the rules . . . .''34
12. Under Section 1.1312(b) of the Rules, an EA must be
submitted to and ruled on by the Commission prior to the
initiation of construction if a proposed facility that is not
otherwise subject to pre-construction authorization ``may have a
significant environmental impact.''35 Section 1.1307(a)(4)
specifies as one criterion of potential significant environmental
effect ``[f]acilities that may affect districts, sites,
buildings, structures or objects, significant in American
history, architecture, archeology, engineering or culture, that
are listed, or are eligible for listing, in the National Register
of Historic Places.''36 Where approval of an application
requiring an EA would have a significant environmental effect and
a FONSI therefore cannot be issued, Section 1.1305 of the Rules
requires the preparation of a Draft Environmental Impact
Statement (DEIS) and Final Environmental Impact Statement (FEIS)
(collectively referred to as EISs) prior to Commission action.37
13. Here, Western's construction of the Medora Tower not
only may have had a significant environmental effect but, in
fact, did have and continues to have such an effect. It is
undisputed that Western constructed its tower near, and in plain
view of, sites that are listed, or eligible for listing, in the
NRHP, including the Chateau de Mores State Historic Site, the de
Mores Packing Plant State Historic Site, and the Theodore
Roosevelt Maltese Cross Cabin. It is also undisputed that the
Historical Society did not conclude prior to construction that
the tower would not have an adverse effect on Historic
Properties. Therefore, we conclude that construction of the
tower may have had a significant environmental effect under
Section 1.1307(a)(4) of the Rules.38 Our conclusion is supported
by the fact that the Historical Society, which is the relevant
SHPO, concluded after the fact that the tower has an adverse
effect on historic properties. Consequently, at a minimum,
Commission approval following the filing of an EA was required
prior to construction and operation. As a result, contrary to
Western's assertion, it was required to prepare and submit to the
Commission an EA, and receive Commission authorization, prior to
the construction of its tower and operation from that location.39
14. Moreover, in this instance not only was Western
required to file an EA and obtain Commission authorization prior
to construction, but because the constructed tower actually has
significant environmental effects, it was required to await
completion of an EIS.40 Based on the Historical Society's
recommendation, other documents in the record, and our
independent assessment, we find that the Medora Tower has an
adverse effect on at least four sites listed in the NRHP - Saint
Mary's Church, the Medora Doll House, the Old Billings County
Courthouse, and the de Mores Packing Plant Ruins - and on at
least one eligible site, the Maltese Cross Cabin. With respect to
each of these sites, all of which are located within
approximately one half mile or less of the tower, the tower on
the bluff presents a modern intrusion that looms over these
Historic Properties, thus introducing an obtrusive incongruous
element into a setting that otherwise retains largely the same
feel that it had at the time the structures were built. Hence,
under Section 800.5(a)(1) of the ACHP Regulations, 36 C.F.R. §
800.5(a)(1),41 the tower has an adverse effect on Historic
Properties.
15. In view of our finding that Western's Medora tower not
only may have, but has had and continues to have, a significant
environmental effect, we reject Western's argument that it has
authority under Section 22.165 of the Rules42 to operate its
tower. Specifically, Section 22.165 provides that licensees may
operate additional transmitters for existing systems only if,
inter alia, the additional transmitters do not have a significant
environmental effect.43 Thus, under Section 22.165, a licensee
may not operate additional transmitters without prior Commission
approval if its action may have a significant environmental
effect. Because Western's tower, in fact, has a significant
environmental effect, it could not have met the Commission's
requirements for authorization without prior approval under
Section 22.165 of the Rules. In addition, Western has violated
Section 1.947(a) of the Rules,44 which required Western to secure
prior Commission approval of its construction of the Medora Tower
because that tower ``would have a significant environmental
effect'' and is, therefore, a major modification of Western's
license under Section 1.929(a)(4) of the Rules.45 Thus, Western
constructed the Medora Tower and continues to operate at this
site without Commission approval. Accordingly, we conclude that
Western apparently willfully and repeatedly violated Section 301
of the Act by operating radio transmitting equipment from an
unauthorized location. We note that this violation has continued
into the one-year limitations period for a forfeiture.46
16. The fact that the City Council and others may have
considered historic preservation issues, or that Western may have
worked cooperatively with the WTB and others to try to resolve
the problem after construction and operation of the Medora tower,
has no bearing on the underlying violation in this case, which
occurred before any such cooperative efforts and has continued
since. In particular, we note that the Zoning Board's approval
of Western's application is irrelevant to whether the tower has a
significant environmental effect under the Commission's rules.
Section 1.1311(c) of the Rules states that an EA should be
accompanied with evidence of site approval obtained from local or
Federal land use authorities, thus recognizing that such zoning
approval does not preclude the need for an EA (or, in appropriate
cases, an EIS).47 Further, Section 1.1311(e) provides that an EA
need not be submitted if another Federal Government agency has
responsibility for deciding whether a proposed facility will have
a significant environmental effect, thus recognizing that state
or local environmental review does not replace the need for FCC
or other federal environmental review.48
17. Similarly, our finding that Western is in violation of
the Act and is apparently liable for forfeiture is not affected
by Western's claim that it offered to file a post-construction EA
with the Commission and that Commission staff discouraged such a
filing. The rules require Western to file an EA before
construction of a facility, such as the Medora Tower, that may
significantly affect the environment.49 Accordingly, a post-
construction EA would not in itself end Western's violation of
those rules. Moreover, because this tower, in fact, does have a
significant impact on the environment, the filing of an EA for
the existing tower would not have led to a FONSI that could have
ended the violation. Finally, even if Western would have
benefited from the filing of an EA but chose not to do so in
reliance on the staff, such reliance was at Western's risk.50
18. Because the Medora Tower has a significant
environmental effect under the Commission's rules, Western was
required to obtain Commission approval following preparation of
an EIS prior to construction of, and operation at, the site.
Moreover, because the construction may have had a significant
environmental effect, Western was required to file an EA and
obtain a FONSI prior to construction and operation. Thus, Western
did not have authority to operate its tower under Sections 22.165
or 1.947 of the Rules,51 and its continued unauthorized operation
of its tower violates Section 301 of the Act.
Forfeiture Amount
19. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully fails to comply
with any of the provisions of the Act or of any rule, regulation
or order issued by the Commission thereunder, shall be liable for
a forfeiture penalty.52 The term ``willful'' as used in Section
503(b) has been interpreted to mean simply that the acts or
omissions are committed knowingly.53 The term ``repeated'' means
that the violation occurred on more than one day.54 Section
503(b)(2)(B) of the Act authorizes the Commission to assess a
forfeiture of up to $120,000 for each violation by a common
carrier, or each day of a continuing violation, up to a statutory
maximum of $1,200,000 for a single act or failure to act.55 In
determining the appropriate forfeiture amount, we must consider
the factors enumerated in Section 503(b)(2)(D) of the Act,
including ``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.''56
20. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80(b) of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement'')57 and
Section 1.80 of the Rules sets a base forfeiture amount of $4,000
for operation at an unauthorized location. However, a
significant upward adjustment is justified in this case since
Western's violation continued for three and a half years after
WTB informed Western that the tower ``may have'' a significant
environmental effect, and continues to this date. Western's
tower has had and continues to have a significant environmental
effect on Historic Properties.58 We therefore consider this to
be a very serious instance of a Section 301 violation for which a
sizable increase in the base forfeiture amount under the upward
adjustment criteria contained in Section 1.80 and the Forfeiture
Policy Statement is warranted.59 Accordingly, applying the
Forfeiture Policy Statement and statutory factors to the instant
case, we conclude that Western is apparently liable for a
$200,000 forfeiture.
21. It is important that Western not be permitted to
continue to benefit from its failure to comply with the
environmental rules. Accordingly, Western is hereby directed to
file, within 30 days of the release of this NAL, a sworn
statement describing its plans to cease operation at its Medora
Tower site or bring that site into compliance with our
environmental rules. The statement must be filed either with
Western's response to this NAL, or separately if it does not
respond (e.g., if it pays the proposed forfeiture). Failure to
cease operation will constitute an apparent further continuing
violation that will subject Western to possible increased
enforcement action, e.g., higher forfeitures and/or potential
revocation of its underlying license for the community. We note
that simply applying for authorization or applying for Special
Temporary Authority (``STA''), or proposing a remedial plan would
not bring Western into compliance and would not insulate Western
from further enforcement action for operation prior to receipt of
authorization. Finally, should Western plan any changes to its
facilities or service in the Medora area in response to this NAL
or subsequent Commission orders, we remind Western of its
obligation under Section 1.1308(a) of the Rules60 to file an EA
if any of those changes may significantly affect the environment
under Section 1.1307(a) of the Rules.61
IV. CONCLUSION
22. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act, and Section 1.80 of the Rules,62 Western
Wireless Corporation, is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of two hundred thousand
dollars ($200,000) for willfully and repeatedly violating Section
301 of the Act.
23. 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, Western Wireless Corporation SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
24. IT IS FURTHER ORDERED THAT, within 30 days of the
release of this Notice of Apparent Liability for Forfeiture,
Western file a sworn statement in accordance with paragraph 21
above.
25. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment must include
the FCC Registration Number (FRN) and the NAL/Acct. No.
referenced in the caption.
26. The response, if any, and the statement referenced in
paragraph 21 above, must be mailed to the Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau -
Technical and Public Safety Division and must include the
NAL/Acct. No. referenced in the caption.
27. 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 practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
28. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.63
29. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Enforcement Bureau - Technical
and Public Safety Division. Your certification should indicate
whether you, including your parent entity and its subsidiaries,
meet one of the definitions set forth in the list provided by the
FCC's Office of Communications Business Opportunities (``OCBO'')
set forth in Attachment A of this Notice of Apparent Liability.
This information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
30. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested to Mr. Jim Blundell, Director of External
Affairs, Western Wireless Corporation, 3650 131st Avenue, SE,
#400, Bellevue, WA 98006, and to its counsel, Michael Deuel
Sullivan, Esq., Wilkinson Barker Knauer LLP, 2300 N Street, NW,
Suite 700, Washington, DC 20037.
FEDERAL COMMUNICATIONS
COMMISSION
Marlene H. Dortch
Secretary October
2002
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned and
operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and operated
and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions for
calculating average annual receipts and average employment of
a firm can be found in
13 C.F.R. §121.104 and 13 C.F.R. § 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
STATEMENT OF
CHAIRMAN MICHAEL K. POWELL
Re: Western Wireless Corporation and WWC Holding Co., Inc.,
Licensee of Cellular Radio Station KNKN343, CMA583 - North
Dakota 4 - McKenzie RSA; Notice of Apparent Liability for
Forfeiture
I recently announced a comprehensive, proactive approach for
addressing the Commission's responsibilities in the
communications tower-siting area. Enforcement action, where
necessary, will be an integral part of this approach as
demonstrated by our action today.
As I described in the Action Plan, the siting of
communications towers places a number of worthy, but competing,
federal interests in tension -- widespread deployment of advanced
telecommunications networks, the protection of birds and
endangered species, aviation safety, and the preservation of
historic and cultural sites, to name a few. Balancing these
interests requires cooperation from a number of interested
parties -- including state and federal agencies, Indian tribes,
environmental groups, and the communications and tower
industries.
_________________________
1 47 U.S.C. § 301.
2 See 47 C.F.R. § 1.1305.
3 47 U.S.C. § 503(b).
4 42 U.S.C. §§ 4321-4335.
5 47 C.F.R. § 1.1307.
6 47 C.F.R. §§ 1.1308 and 1.1311.
7 47 C.F.R. § 1.1312. See also 47 C.F.R. § 22.165(c).
8 16 U.S.C. §§ 470 et seq. In particular, Section 106 of the
NHPA (16 U.S.C. § 470f) requires Federal agencies, such as the
Commission ``. . . prior to the issuance of any license . . .
[to] take into account the effect of the undertaking on any
district, site, building, structure or object that [qualifies as
a Historic Property].''
9 47 C.F.R. § 1.1307(a)(4).
10 47 C.F.R. § 1.1308(d).
11 See 47 C.F.R. §§ 1.1308(c), 1.1309.
12 See 47 C.F.R. §§ 1.1305, 1.1314, 1.1315, 1.1317.
13 Letter from Michael E. Simonson, Review & Compliance
Coordinator, State Historical Society of North Dakota, to Frank
Stilwell, Commercial Wireless Division, Wireless
Telecommunications Bureau (November 15, 1999) (``November 15,
1999 Letter'').
14 While the Commission's historic preservation rules do not
expressly refer to properties listed on state or local registers
of historic properties, such local registers are important
sources of information. Where such locally-listed properties are
found in the area of potential effects (``APE''), they should be
evaluated for NRHP eligibility.
15 Letter from Michael E. Simonson, Review & Compliance
Coordinator, State Historical Society of North Dakota, to Frank
Stilwell, Commercial Wireless Division, Wireless
Telecommunications Bureau (January 31, 2000). See also Letter
from Michael Deuel Sullivan, Esq., to Kathy Harvey, Technical and
Public Safety Division, Enforcement Bureau (February 3, 2003)
(``Western February 2003 Letter'') (stating that the nearest
historic site to the tower is approximately one quarter of a mile
away)
16 See, e.g., Letter from Noel R. Poe, Superintendent, National
Park Service, U.S. Department of the Interior, to Dan Abeyta,
Commercial Wireless Division, Wireless Telecommunications Bureau
(March 15, 2001).
17 Letter from Rose Crellin, Commercial Wireless Division,
Wireless Telecommunications Bureau, to Grant Hoovestos, Western
Wireless Corporation (December 14, 1999).
18 Id. (emphasis added). In February 2000, WTB again informed
Western that if the situation was not resolved, it ``may be
subject to enforcement action by the Commission.''
19 Because the Commission has historically focused its
environmental enforcement efforts on the kind of informal
resolution attempted by WTB in this case, WTB and other licensing
Bureaus have primary responsibility for environmental
enforcement. 47 C.F.R. § 0.111(a)(11) Note. The rules also
provide for referral of such matters from the licensing bureaus
to EB upon mutual agreement of the Bureaus. Id., § 0.111(a)(14).
We take this opportunity to state our strong support for an
enforcement-oriented approach in the protection of the
environment. We direct referrals to EB of violations by
licensees or tower owners where appropriate and continued strong
enforcement action by EB where such action is appropriate.
20 Letter from Joseph P. Casey, Chief, Technical and Public
Safety Division, Enforcement Bureau, to Jim Blundell, Director of
External Affairs, Western Wireless Corporation (October 17,
2002).
21 Letter from Michael Deuel Sullivan, Esq., to Kathy Harvey,
Technical and Public Safety Division, Enforcement Bureau
(November 1, 2002) (``Western November 2002 Letter'')
22 Chapter 6, Article 1, Introduction.
23 Chapter 6, Article 3, § 6.0301.
24 Western November 2002 Letter at 3. More precisely, Section
1.1307(a)(4) of the Rules, 47 C.F.R. § 1.1307(a)(4), requires an
EA where a proposed facility ``may affect districts, sites,
buildings, structures or objects, significant in American
history, architecture, archeology, engineering or culture, that
are listed, or eligible for listing in the National Register of
Historic Places.''
25 Western November 2002 Letter at 3. See also 47 C.F.R. §
1.1307(a)(4) note (emphasis added).
26 Western November 2002 Letter at 3. See also 47 C.F.R. §§
1.1306(a), 1.1307(a)(4).
27 Western November 2002 Letter . 47 C.F.R. § 1.1307(c) and (d).
28 Letter from Joseph P. Casey, Chief, Technical and Public
Safety Division, Enforcement Bureau, to Jim Blundell, Director of
External Affairs, Western Wireless Corporation (January 14,
2003).
29 Western February 2003 Letter.
30 We note that in the Historical Society's November 1999 letter
to the Wireless Telecommunications Bureau, it asserted that
Western's tower adversely affected the Peaceful Valley Ranch.
31 47 C.F.R. § 22.165.
32 47 C.F.R. §§ 1.1301-1.1319, 22.165(c).
33 47 C.F.R. § 1.929.
34 47 C.F.R. §§ 1.1301-1.1319.
35 47 C.F.R. § 1.1312(b); see also 47 C.F.R. §§ 1.1307(a) (EA
required where facility ``may significantly affect the
environment), 1.1308, 1.1311.
36 47 C.F.R. § 1.1307(a)(4).
37 47 C.F.R. § 1.1305; see also 47 C.F.R. §§ 1.1308(i), 1.1314,
1.1315, 1.1317.
38 47 C.F.R. § 1.1307(a)(4).
39 47 C.F.R. §§ 1.1307(a)(4), 1.1308, 1.1311.
40 Where construction of a facility is deemed a Commission
action and that facility has an unmitigated adverse effect on one
or more Historic Properties, the Commission has for some time
viewed such a facility as having a significant effect on the
environment. For example, in its 1974 Report and Order
implementing NEPA, the Commission determined that the following
``classes of facilities'' would be classified as ``major'' under
NEPA: those ``[f]acilities which will affect districts, sites,
buildings, structures, or objects, significant in American
history, architecture, archeology or culture which are listed in
the National Register of Historic Places or are eligible for
listing.'' Implementation of the National Environmental Policy
Act of 1969, 49 FCC2d 1313, 1319-1320 (1974) recon. granted in
part and otherwise denied, 56 FCC2d 635 (1975).
41 An adverse effect is found when an undertaking may alter,
directly or indirectly, any of the characteristics of a historic
property that qualify the property for inclusion in the National
Register in a manner that would diminish the integrity of the
property's location, design, setting, materials, workmanship,
feeling, or association. Consideration shall be given to all
qualifying characteristics of a historic property, including
those that may have been identified subsequent to the original
evaluation of the property's eligibility for the National
Register. Adverse effects may include reasonably foreseeable
effects caused by the undertaking that may occur later in time,
be farther removed in distance or be cumulative. Section
800.5(a)(1) of the ACHP Regulations, 36 C.F.R. § 800.5(a)(1). See
also 36 C.F.R. 800.5(a)(2)(v) ``Introduction of visual,
atmospheric or audible elements that diminish the integrity of
the property's significant historical features.''
42 47 C.F.R. § 22.165.
43 47 C.F.R. 22.165(c).
44 47 C.F.R. § 1.947(a).
45 47 C.F.R. § 1.929(a)(4).
46 47 U.S.C. § 503(b)(6)(B).
47 47 C.F.R. § 1.1311(c).
48 47 C.F.R. § 1.1311 (e). With respect to Western's
``consultation'' with the National Park Service, the National
Park Service has indicated that, at the time, it was unaware that
the FCC had rules relating to the location of communications
towers. Letter from Noel R. Poe, Superintendent, National Park
Service, U.S. Department of the Interior, to RaeAnn Kelsch,
Manager of External Affairs, Western Wireless Corporation (July
6, 2000). The National Park Service also notes: ``It is not the
National Park Service, TRMF [Theodore Roosevelt Medora
Foundation], nor the City's responsibility to know and abide by
FCC Regulations. That responsibility rests solely with WW
[Western].'' Id.
49 See 47 C.F.R. § 1.1308(a).
50 See Amor Family Broadcasting Group v. FCC, 918 F.2d 960, 962
(D.C. Cir. 1991).
51 47 C.F.R. §§ 22.165, 1.947.
52 47 U.S.C. § 503(b).
53 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
54 Section 312(f)(2) of the Act provides that ``[t]he term
`repeated,' when used with reference to the commission or
omission of any act, means the commission or omission of such act
more than once or, if such commission or omission is continuous,
for more than one day.'' 47 U.S.C. § 312(f)(2).
55 47 U.S.C. § 503(b)(2)(B); see also 47 C.F.R. § 1.80(b)(2).
56 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy
Statement, 12 FCC Rcd at 17100 (1997); 47 C.F.R. § 1.80(b)(4).
57 12 FCC Rcd 17087 (1997), recon denied, 15 FCC Rcd 303 (1999).
58 In addition, Western failed to obtain prior Commission
approval for a facility that may have an adverse effect on one or
more Historic Properties.
59 47 C.F.R. § 1.80(b)(4), Note to paragraph (b)(4): Section
II. Adjustment Criteria for Section 503 Forfeitures; Forfeiture
Policy Statement, 12 FCC Rcd at 17117, Appendix A, Section II.
60 47 C.F.R. § 1.1308(a).
61 47 C.F.R. § 1.1307(a).
62 47 C.F.R. § 1.80.
63 See 47 C.F.R. § 1.1914.