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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
American Tower Corporation ) File No. EB-00-TP-132
) NAL/Acct. No. 200132070004
Boston, MA )
ORDER
Adopted: July 2, 2001 Released: August 2, 2001
By the Commission:
1. In this Order, we adopt a Consent Decree terminating an
enforcement proceeding initiated against American Tower
Corporation (``ATC'') for apparent violations of Part 17 of the
Commission's Rules (the ``Rules'') relating to construction,
marking and lighting of antenna structures and a related
investigation.
2. On January 16, 2001, the Commission issued to ATC a
Notice of Apparent Liability for Forfeiture (``NAL'')1 for 36
apparent violations of Sections 17.4(a), 17.4(a)(1), 17.4(g),
17.45 and 17.57 of the Rules.2 Respectively, these sections
require that antenna structure owners properly register existing
antenna structures, register an antenna structure prior to
construction, post antenna structure registration numbers, mark
and light antenna structures, and report antenna structure
ownership changes. After reviewing the facts and circumstances
surrounding the alleged violations, the Commission found ATC
apparently liable for a forfeiture in the amount of two hundred
twelve thousand dollars ($212,000). The Commission also directed
the Enforcement Bureau to conduct a further investigation of
ATC's overall level of compliance with the Commission's antenna
structure painting, lighting and registration requirements.
3. The Commission staff and ATC have negotiated the terms
of a Consent Decree that would resolve this matter and terminate
this enforcement proceeding and the related investigation. A
copy of the Consent Decree is attached hereto and incorporated by
reference. As detailed in the Consent Decree, ATC has agreed,
among other things, to institute a compliance plan and to make a
voluntary contribution to the United States Treasury in the
amount of three hundred thousand dollars ($300,000).
4. Based on the record before us, we conclude that no
substantial or material questions of fact exist as to whether ATC
possesses the basic qualifications, including those related to
character, to hold or obtain any FCC license or authorization.
5. After reviewing the terms of the Consent Decree, we
find that the public interest would be served by approving the
Consent Decree, rescinding the NAL and terminating the further
investigation ordered in the NAL.
6. Accordingly, IT IS ORDERED, pursuant to Sections 4(i),
4(j) and 503(b) of the Communications Act of 1934, as amended,3
that the attached Consent Decree IS ADOPTED.
7. IT IS FURTHER ORDERED that the January 16, 2001, Notice
of Apparent Liability issued to ATC IS RESCINDED and that the
further investigation ordered in the Notice of Apparent Liability
IS TERMINATED.
8. ATC shall make its voluntary contribution to the United
States Treasury by mailing a check or similar instrument, payable
to the order of the Federal Communications Commission, to the
Federal Communications Commission, Forfeiture Collection Section,
Finance Branch, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should reference NAL/Acct. No. 200132070004.
9. IT IS FURTHER ORDERED that the Secretary SHALL SIGN the
Consent Decree on behalf of the Commission.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary CONSENT DECREE
I. Introduction
This Consent Decree is made and entered into by and
between the Federal Communications Commission (``FCC'') and
American Tower Corporation and its affiliates and subsidiaries
(``ATC''), which own and manage antenna structures located
throughout the United States.
II. Background
1. On January 16, 2001, the FCC issued a Notice of
Apparent Liability to ATC in the amount of $212,000 (the
``NAL''), stating that it appeared that ATC had violated the
provisions of 47 C.F.R. § 17.1 et seq., (the ``FCC Rules'') by
failing to (1) timely register two antenna structures with the
FCC; (2) file timely notifications of ownership changes for
twenty four towers; (3) properly post the Antenna Structure
Registration Number assigned by the FCC for nine towers; and (4)
install and maintain temporary lighting on one tower. The
forfeiture proposed in the NAL consisted of a $106,000 base
forfeiture, which was doubled by the FCC. The FCC also directed
the Enforcement Bureau (``Bureau'') to conduct a further
investigation of ATC's compliance with the antenna structure
rules.
2. ATC timely responded to the NAL on March 1, 2001.
3. Both prior to and since the issuance of the NAL, the
Bureau has issued other Notices of Violation and Letters of
Inquiry (collectively, ``NOVs'') to ATC for other possible
violations of the FCC's Rules which were not included in the NAL
(the ``Other NOVs''). The Bureau has uncovered what it believes
to be other potential violations of the FCC's Rules which have
not been cited in an NOV or NAL, and ATC has reported to the
Bureau that it has examined its compliance with the Rules and
identified certain other potential violations.
4. On April 4, 2001, ATC executives met with the Bureau to
detail ATC's compliance efforts through that date and present the
Bureau with ATC's compliance plan (the ``Compliance Plan''). The
Compliance Plan outlines the processes and procedures that ATC
has been implementing in an effort to ensure compliance with the
FCC's Rules in the future.
III. Definitions
For the purposes of this Consent Decree, the following
definitions shall apply:
(a) ``FCC'' means the Federal Communications
Commission.
(b) ``Bureau'' means the FCC's Enforcement Bureau.
(c) ``ATC'' means American Tower Corporation on behalf
of its affiliates and subsidiaries.
(d) ``NAL'' means the Notice of Apparent Liability
issued to ATC by the FCC on January 16, 2001.
(e) ``FCC's Rules'' means the FCC's tower-related
rules in 47 C.F.R. § 17.1 et seq.
(f) ``NOV'' means a Notice of Violation or Letter of
Inquiry.
(g) ``Other NOVs'' means NOVs for other possible
violations of the FCC's Rules which have been
issued both prior to and since the issuance of the
NAL, and which were not included in the NAL.
(h) ``Other Potential Violations'' means other
possible violations of the FCC's Rules uncovered
by the Bureau or ATC prior to and since issuance
of the NAL which have not been cited in an Other
NOV or NAL, except for such violations which
either have not been corrected or for which
substantial and documented efforts at compliance
(e.g., filing forms with governmental agencies or
ordering parts from suppliers) have not been taken
by the sixtieth day following the signing of this
Consent Decree by both parties.
(i) ``Order'' means an order of the FCC adopting this
Consent Decree.
(j) ``Final Order'' means an action by the FCC or by
its staff pursuant to delegated authority (i)
which has not been vacated, reversed, stayed, set
aside, annulled or suspended, (ii) with respect to
which no timely appeal, request for stay or
petition for rehearing, reconsideration or review
by any party or by the FCC on its own motion, is
pending, and (iii) as to which the time for filing
any such appeal, request, petition, or similar
document or for the reconsideration or review by
the FCC on its own motion under the Communications
Act of 1934, as amended, and the FCC's rules and
regulations, has expired.
(k) ``Compliance Plan'' means the processes and
procedures developed by ATC in an effort to ensure
continuing compliance with the FCC's Rules, as
summarized in an attachment to this Consent
Decree.
IV. Agreement
5. ATC and the FCC agree to be legally bound by this
Consent Decree.
6. ATC and the FCC agree that this Consent Decree does not
constitute an adjudication of the merits, or any finding on the
facts or law regarding any compliance or noncompliance by ATC
with the FCC's Rules arising out of the NAL, Other NOVs or Other
Potential Violations. ATC and the FCC agree that this Consent
Decree is for settlement purposes only and that by agreeing to
this Consent Decree, ATC does not admit any noncompliance,
violation, or liability associated with or arising from the NAL,
Other NOVs or Other Potential Violations before the date of this
Consent Decree.
7. In consideration of the actions of the FCC described in
Paragraph 8 below:
(a) As part of its effort to ensure future compliance
with the FCC's Rules, ATC will implement the Compliance Plan,
which is summarized in an attachment hereto. The Compliance Plan
has five distinct components governing compliance relating to
towers acquired by ATC through purchase or merger, towers
constructed or modified by ATC, monitoring of tower lighting and
painting, maintaining records of lighting outages and handling of
NOV responses. ATC may modify the Compliance Plan as necessary
to better ensure continuing compliance with the FCC's Rules. ATC
contemporaneously will notify, in writing, the Chief, Enforcement
Bureau, Federal Communications Commission, Washington, D.C., of
any modification to the Compliance Plan. The Commission, through
the Chief, Enforcement Bureau, may disapprove, in writing, any
such modification within 25 calendar days of receipt of ATC's
notification where it finds that the modification is inconsistent
with the terms of the Consent Decree or the Commission's rules or
policies.
(b) ATC will continue to conduct formal training
sessions for its personnel with responsibilities involving FAA
and FCC compliance. ATC will revise, as necessary, training
materials to be distributed to its employees on FAA and FCC
compliance matters. ATC will apprise employees of ATC's
intention to take appropriate disciplinary action against
employees who do not follow the Compliance Plan.
(c) ATC will make a voluntary contribution to the
United States Treasury in the amount of Three Hundred Thousand
Dollars ($300,000) within ten days after the Order adopting this
Consent Decree has become a Final Order. ATC will make this
contribution without further protest or recourse by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, Forfeiture Collection Section, Finance Branch, P.O.
Box 73482, Chicago, Illinois 60673-7482. The payment should
reference NAL/Acct. No. 200132070004.
8. In express reliance upon the covenants and
representations contained herein:
(a) The FCC will issue an order directing the Secretary
to sign this Consent Decree and in which it will either vacate or
rescind the NAL, terminate the investigation of the Other NOVs
and Other Potential Violations, and terminate the further
investigation directed by the FCC in Paragraph 12 of the NAL (the
''Order''). Following issuance of the Order, the FCC will
continue its routine inspections of ATC's antenna structures.
(b) In the absence of material new evidence (which
shall not include the issuance of additional NOVs) concerning the
Consent Decree, the NAL, Other NOVs or Other Potential Violations
that implicates ATC's basic qualifications (e.g., disqualifying
misrepresentation or lack of candor), the FCC will not use the
fact of this Consent Decree, the NAL, the Other NOVs, the Other
Potential Violations or the underlying facts, behavior, acts or
omissions or which relate to them, for any purpose whatsoever
relating to ATC and will treat the NAL, the Other NOVs and the
Other Potential Violations as null, void and expunged from ATC's
record for all purposes including, but not limited to, any future
qualifications issue, future licensing proceeding or future
transfer of control or assignment of license or permit involving
ATC.
9. In consideration for the actions taken pursuant to
Paragraphs 7 and 8, ATC and the FCC agree to the terms,
conditions and procedures contained herein.
10. ATC agrees that the FCC has jurisdiction over the
matters contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
11. The FCC and ATC hereby waive their right to seek
judicial review of this Consent Decree or the Order, or otherwise
to contest or challenge their validity, provided that the Consent
Decree is adopted without change, addition, or modification.
12. ATC and the FCC agree that the effectiveness of this
Consent Decree is expressly conditioned upon issuance of the
Order, provided that the Consent Decree is adopted without
change, addition, or modification.
13. ATC and the FCC agree that in the event that this
Consent Decree 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.
14. If the United States on behalf of the FCC or ATC should
bring an action to enforce the terms of this Consent Decree, the
parties agree that they will not contest the validity of the
Consent Decree, they will waive any statutory right to a trial de
novo with respect to any matter upon which the Order is based
(provided in each case that the Order is limited to adopting the
Consent Decree without change, addition, or modification) and
they will consent to a judgment incorporating the terms of this
Consent Decree.
15. Each party to this Consent Decree shall bear its own
attorney fees and costs and ATC agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, Title 5
U.S.C. § 504 and 47 C.F.R. § 1.1501 et seq., relating to the
matters discussed in this Consent Decree.
16. ATC agrees that any violation of this Consent Decree
shall constitute a violation of an FCC order, entitling the FCC
to exercise any rights and remedies attendant to the enforcement
of an FCC order.
17. ATC and the FCC agree that the terms and conditions of
Sections 7(a)-(b) of this Consent Decree shall remain in effect
for thirty six (36) months from the effective date of this
Consent Decree, which shall be the release date of the Order and
that the terms and conditions of Section 8 shall survive the
expiration of this Consent Decree. ATC and the FCC also agree
that any provision of this Consent Decree which conflicts with
any subsequent rule, order of general applicability, or other
decision of general applicability adopted by the FCC will be
superseded by such rule, order or other decision.
18. This Consent Decree represents the complete agreement
between the parties to the Consent Decree and supersedes any
other agreements, understandings and representations, if any.
The parties represent, warrant and agree that the provisions of
this Consent Decree are binding on each of them in accordance
with their terms, and that the signatories hereto have been
authorized by the parties to execute this Consent Decree on their
behalf. This Consent Decree may be signed in counterparts and
may be amended only by a written instrument signed by all the
parties hereto.
FEDERAL COMMUNICATIONS COMMISSION
By: ________________________ Date:
__________
Magalie Roman Salas
Secretary
AMERICAN TOWER CORPORATION, on behalf of
itself and its affiliates and subsidiaries
By: ________________________ Date:
__________
Steven B. Dodge
Its Chief Executive Officer
Summary of Part 17 Compliance Plan
of
American Tower Corporation
As part of its effort to ensure compliance with the
Communications Act of 1934, as amended, and the FCC's rules and
regulations, ATC has developed and is in the process of
implementing an enhanced regulatory Compliance Plan. The
Compliance Plan will be overseen by ATC's Director of FCC
Compliance, its Director of National Operations and its Chief
Operating Officer and will be implemented by ATC's five Senior
Regulatory Compliance Specialists (``FCC Specialists'') and the
developmental and operational personnel with compliance
responsibilities in each of ATC's 20 areas.
The Compliance Plan addresses five specific areas of
interaction with the FAA and FCC: tower acquisition (through
purchase or merger), tower construction and modification,
monitoring of lighting and painting, records of lighting outages,
and NOV responses. The Compliance Plan also includes a
significant training component and periodic internal audits to
assess the effectiveness of the Compliance Plan. ATC may modify
the Compliance Plan as necessary to better ensure continuing
compliance with the FCC's Rules.
Tower Acquisitions: During pre-closing due diligence, ATC
corporate personnel will obtain the TIN and
Antenna Structure Registration Number of all
towers being acquired. Ownership change
filings will be completed by the corporate
legal department immediately following
consummation. Prior to closing, ATC will
have field personnel inspect each tower to
identify and require that the seller complete
(or at least initiate) corrective measures to
bring the towers into compliance before
consummation.
Construction/Alteration: Responsibility for FAA and FCC
compliance has been vested with the five FCC
Specialists, although they may delegate
completion of specific tasks to the
appropriate area compliance specialist.
Prior to construction or alteration of a
tower, ATC will seek a ``No Hazard''
Determination from the FAA. If necessary,
the tower will then be registered with the
FCC. Once regulatory approvals have been
obtained, the project or construction manager
must obtain written approval from the
appropriate FCC Specialist before
construction may commence. Appropriate signs
must be posted at this junction, and lighting
must be installed at the appropriate points
during construction. Within 24 hours after
construction ceases or the tower reaches its
greatest height, the construction project
manager must again obtain written
confirmation from the FCC Specialist
confirming that all construction obligations
have been satisfied. Then, if required,
proper notice is given to the FAA and an
``NT'' filing is made with the FCC. Once
development is completed, the tower is then
turned over to the operational personnel.
Monitoring of Lighting
and Painting: Lighting on ATC towers is monitored
by ATC's Network Operations Control Center
(``NOCC''), or other third-party contractors.
When a lighting outage is detected by the
NOCC, a Notice to Airman (``NOTAM'') is
requested from the FAA if the outage cannot
be corrected within 30 minutes. When a
lighting outage is detected by a third party
contractor, that party contacts the NOCC,
which then requests the NOTAM. Failure of
the remote monitoring equipment or other
communications failure will not relieve ATC
of its responsibility for compliance with the
lighting requirements. Once the NOTAM has
been opened or a communications failure is
being investigated, the NOCC opens a
``trouble ticket'' for the site in its
database and contacts the operational
personnel responsible for the site so that
timely repairs can be made. If the problem
cannot be fixed within the initial 15-day
NOTAM period, the NOTAM is extended. When an
outage or communications failure is repaired,
the operational person responsible for the
site notifies the NOCC, which internally
closes the ``trouble ticket'' in its
database. If applicable, the NOCC then
notifies the FAA to close the NOTAM. As a
check on this system, the NOCC operator
closing a NOTAM must enter the initials of
the FAA Flight Service Station personnel who
answered the call. In addition, ATC will
conduct periodic visual inspections of its
towers to ensure that tower painting is
properly maintained and that the Antenna
Structure Registration Number is properly
posted.
Records of Light Outages: ATC will maintain records of all
observed or otherwise known lighting outages
or improperly functioning lights in
accordance with Section 17.49 of the FCC's
Rules. These records will include the nature
of the outage or improper functioning; the
date or time the outage or improper
functioning was observed or otherwise noted;
the date and time of FAA notification, if
applicable; and the date, time and nature of
adjustments, repairs or replacements made.
NOV Responses: ATC has updated the FCC's Antenna
Structure Registration Database to list its
five FCC Specialists as contacts to help
ensure NOVs are timely received. The five
FCC Specialists are responsible for timely
responding to NOVs, in consultation with the
appropriate field personnel, ATC's corporate
legal department and outside FCC counsel.
Training: All new company employees with FAA
or FCC compliance responsibilities are
routinely and formally trained by a
designated trainer in ATC's compliance
procedures. ATC is refining its compliance
memoranda, which covers topics including FAA
Notification, FAA Antenna Structure
Registration and Sign Posting, Painting and
Lighting Requirements and NOTAM procedures.
These memoranda and ATC's training will be
regularly refined as necessary and
appropriate to effect improvements in
compliance matters. In addition, at a
minimum, employees with such responsibilities
will receive refresher training annually.
_________________________
1 American Tower Corporation, 16 FCC Rcd 1282 (2001).
2 47 C.F.R. §§ 17.4(a), 17.4(a)(1), 17.45 and 17.57.
3 47 U.S.C. §§ 154(i), 154(j) and 503(b).