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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

                  MEMORANDUM OPINION AND ORDER

   Adopted:  November 17, 2004          Released:  December 1, 
2004

By the Commission:  Chairman Powell issuing a separate statement.

     1.   In this Memorandum Opinion and Order (``Order''), we 
cancel the $200,000 Notice of Apparent Liability for Forfeiture 
(``NAL'') issued to Western Wireless Corporation and its wholly 
owned subsidiary, WWC Holding Co., Inc. (collectively 
``Western''), licensee of Cellular Radio Station KNKN343, CMA583 
- North Dakota 4 - McKenzie RSA.1  The NAL found that Western was  
operating  radio  transmitting  equipment  from  an  unauthorized 
location  in  Medora, North Dakota (``Medora tower'') in apparent 
willful and repeated violation of Section 301 of the 
Communications Act of 1934, as amended (``Act'').2  

     2.   Under the Commission's environmental processing rules, 
licensees and applicants 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.3  If proposed facilities may have significant 
environmental effects, the rules require licensees to prepare and 
file with the Commission Environmental Assessments (``EAs'')4 
prior to construction.5  Consistent with the National Historic 
Preservation Act of 1966, as amended (``NHPA''),6 Section 
1.1307(a)(4) of the Commission's rules requires licensees to 
prepare and to submit EAs to the Commission if their proposed 
facilities may affect one or more properties listed, or eligible 
for listing, (``historic properties'') in the National Register 
of Historic Places (``National Register''). 7  If the Commission 
finds, after reviewing an EA and any comments received, that a 
proposed facility will not have a significant environmental 
effect, it will issue a finding of no significant impact 
(``FONSI'') and grant the application.8  If the Commission finds 
that a proposed action will have a significant environmental 
effect and the applicant does not choose to amend its 
application,9 the licensee may not commence construction until 
the Commission concludes further environmental processing, 
including the preparation of Environmental Impact Statements 
(``EISs'').10

     3.   In August 1999, Western constructed the 180-foot 
monopole tower on a bluff overlooking Medora, North Dakota.  
Western constructed the tower in view of properties listed in the 
National Register, without first filing an EA with and undergoing 
environmental review at the Commission.  In November 1999, 
shortly after the tower was built, the State Historic 
Preservation Office (``SHPO'') wrote the Commission regarding the 
effect of the tower on area historic properties.11  In turn, on 
December 14, 1999, the Commission's Wireless Telecommunications 
Bureau (``WTB'') notified Western that its Medora facility may 
significantly affect historic properties.12   

     4.   On May 12, 2003, the Commission ultimately proposed 
enforcement action against Western, by issuing the NAL that found 
Western apparently liable for a $200,000 forfeiture for operation 
of radio transmitting equipment from an unauthorized location in 
willful and repeated violation of Section 301 of the Act.  
Because of the Commission's expressed concern that the Medora 
tower had and continued to have a significant environmental 
effect on historic properties, it concluded that the 
circumstances justified substantially increasing the proposed 
forfeiture from the $4,000 base amount for operation at an 
unauthorized location to $200,000.13    

     5.   On June 13, 2003, Western filed a response to the 
NAL,14 and on June 20 and November 4, 2003, supplemented its 
response.15  In its response, Western disputed the findings in 
the NAL and sought cancellation of the NAL and rescission of its 
findings. Western maintained, inter alia, that after the WTB 
notified it in December 1999 of the historic preservation 
concerns, it cooperated in good faith with the WTB and others to 
resolve this matter, noting its ongoing efforts to establish 
effective mitigation measures as well as submissions of periodic 
status reports to the WTB.16  

     6.   As previously noted, the record establishes that in a 
December 1999 letter, the WTB advised Western that continued 
operation of the Medora tower may adversely affect historic 
properties. In response to the December 1999 letter, the record 
further establishes that Western worked cooperatively and in good 
faith with the WTB and others to address the historic 
preservation issues, before the period covered by the NAL.  
Specifically, the record establishes that after the December 1999 
letter and before the NAL, Western engaged the SHPO in meetings, 
held two public hearings, provided the WTB with regular status 
reports, made offers to prepare and submit an EA to the 
Commission, and ultimately proposed mitigation measures in a 
draft Memorandum of Agreement (``MOA'').17  Indeed, the SHPO 
believes that the proposed mitigation measures, if implemented, 
``will eliminate, reduce or mitigate any adverse effect from the 
Medora tower on any and all historic properties sufficiently so 
that such effect will be resolved.''18  Based on the unique 
circumstances at issue, we conclude that it is appropriate as a 
matter of equity to cancel the NAL and not to impose a forfeiture 
here.  We emphasize that our decision here to cancel the NAL was 
based on the unusual and unique facts and circumstances of this 
case and does not represent a more generalized weakening of our 
enforcement obligations.  In the future, if entities fail to 
prepare and file EAs and the facts and circumstances warrant 
enforcement action, we will take such action.

     7.   Accordingly, IT IS ORDERED that, pursuant to Section 
504(b) of the Act, and Section 1.80(f)(4) of the rules,19 the 
prior Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
20332100004 IS CANCELLED.  

     8.   IT IS FURTHER ORDERED that a copy of this Order shall 
be sent by first class mail and certified mail return receipt 
requested to Mr. William J. Hackett, Director of Regulatory 
Compliance, Western Wireless Corporation, 401 9th Street, NW, 
Suite 550, Washington, DC 20004, and to its counsel, Michael 
Deuel Sullivan, Esq., Wilkinson Barker Knauer, LLP, 2300 N 
Street, NW, Suite 700, Washington, DC 20037-1128, and John F. 
Clark, Esq., Perkins Cole, LLP, 607 14th Street, NW, Suite 800, 
Washington, DC 20005-2011.

                         FEDERAL COMMUNICATIONS COMMISSION
                         

                         Marlene H. Dortch
                         Secretary












































                          STATEMENT OF
                   CHAIRMAN MICHAEL K. POWELL

  In the Matter of Western Wireless Corporation and WWC Holding 
                            Co., Inc.

     On all the facts of this matter, I support the Commission's 
decision to cancel the Notice of Apparent Liability for 
Forfeiture previously issued against Western Wireless Corporation 
and WWC Holding Co., Inc.  I note, however, that the Commission 
recently revised its environmental rules to implement a 
Nationwide Programmatic Agreement that tailors, streamlines, and 
clarifies the procedures for evaluating the effects of 
undertakings on historic properties under the National Historic 
Preservation Act.20  The new rule makes clear that the provisions 
of the Nationwide Programmatic Agreement are mandatory and 
binding upon applicants, and that non-compliance with its 
procedures will subject a party to potential enforcement 
action.21  Given the clarity of the procedures specified in the 
Nationwide Programmatic Agreement, I would find it particularly 
difficult to excuse a failure to follow these mandatory steps 
going forward.  Accordingly, I expect to consider the existence 
of this revised rule in assessing whether, and the amount in 
which, a forfeiture is appropriate in the event of future rule 
violations.

_________________________

1Western Wireless Corporation and WWC Holding Co., Inc., 18 FCC 
Rcd 10319 (2003).
247 U.S.C. § 301.
347 C.F.R. § 1.1307.
4See 47 C.F.R. §§  1.1308 and 1.1311.
5See 47 C.F.R. § 1.1312; see also 47 C.F.R. § 22.165(c).
616 U.S.C. §§ 470-470w. In particular, Section 106 of the NHPA 
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].''  16 U.S.C. § 
470f.
747 C.F.R. § 1.1307(a)(4).  The Commission recently amended its 
rules to require licensees, in ascertaining whether their 
proposed actions may affect properties that are listed or 
eligible for listing in the National Register, to follow the 
procedures set forth in the rules of the Advisory Council on 
Historic Preservation, 36 C.F.R. Part 800, as modified and 
supplemented by two Nationwide Programmatic Agreements to be 
published as appendices to Part 1 of the Commission's rules.  See 
Nationwide Programmatic Agreement Regarding the Section 106 
National Preservation Act Review Process, WT Docket No. 03-128, 
Report and Order, FCC 04-222 (rel. October 5, 2004).
8See 47 C.F.R. § 1.1308(d).
9See 47 C.F.R. §§ 1.1308(c), 1.1309.
10See 47 C.F.R. §§ 1.1305, 1.1314, 1.1315, 1.1317.
11See Letter from Michael E. Simonson, Review and Compliance 
Coordinator, State Historical Society to Frank Stilwell, 
Commercial Wireless Division, Wireless Telecommunications Bureau 
(November 15, 1999).   
12See Letter from Rose Crellin, Commercial Wireless Division, 
Wireless Telecommunications Bureau, to Grant Hoovestol, Western 
Wireless Corporation (December 14, 1999).    
13The Commission also directed Western to file, within 30 days of 
the release of the NAL, a sworn statement describing its plans to 
cease operation at its Medora Tower site or to bring that site 
into compliance with our environmental rules.  See NAL, 18 FCC 
Rcd at 10327 ¶ 21.  Since the NAL was issued, Western has been 
operating the Medora facility through consecutive grants of 
special temporary authority (``STAs'') issued by WTB staff.   
14Response of Western Wireless Corporation and WWC Holding Co, 
Inc. to Notice of Apparent Liability for Forfeiture (filed June 
13, 2003) (``NAL Response'').  See also Addendum I (sworn 
statement of William J. Hackett).
15See Letter from Michael D. Sullivan, Esq. to Marlene H. Dortch, 
Secretary, Federal Communications Commission (June 20, 2003); 
Letter from John F. Clark, Esq. to Marlene H. Dortch, Secretary, 
Federal Communications Commission (November 4, 2003).  
16See NAL Response at 83 and Exhibit 28. 
17See NAL Response at 11-14; Letter from Michael Deuel Sullivan, 
Esq. to Daniel Abeyta, Commercial Wireless Division, Wireless 
Telecommunications Bureau (August 24, 2001); Letter from Michael 
Deuel Sullivan, Esq. to Magalie Roman Salas, Secretary, Federal 
Communications Commission (June 11, 2001); Letter from Michael 
Deuel Sullivan, Esq. to Daniel Abeyta, Commercial Wireless 
Division, Wireless Telecommunications Bureau (January 9, 2001) at 
3; Letter from Michael Deuel Sullivan, Esq. to Rose Crellin, 
Commercial Wireless Division, Wireless Telecommunications Bureau 
(November 20, 2000); Letter from Michael Deuel Sullivan, Esq. to 
Rose Crellin, Commercial Wireless Division, Wireless 
Telecommunications Bureau (April 7, 2000); Letter from Michael 
Deuel Sullivan, Esq. to Rose Crellin, Commercial Wireless 
Division, Wireless Telecommunications Bureau (February 16, 2000); 
see also Letter from Rose Crellin, Commercial Wireless Division, 
Wireless Telecommunications Bureau to Michael Deuel Sullivan, 
Esq. (November 13, 2000) (acknowledging that Western kept the 
Commission abreast by submitting progress reports and ``continued 
the Section 106 National Historic Preservation Act (``NHPA'') 
process by meeting with, and accepting comments from the SHPO, 
representatives of the National Park Service, and members of the 
public concerning the constructed tower in Medora, North Dakota, 
and ultimately developing mitigation proposals'') at 1; Letter 
from Rose Crellin, Commercial Wireless Division, Wireless 
Telecommunications Bureau to Michael Deuel Sullivan, Esq. (March 
8, 2000) (directing Western to submit regular progress reports at 
30-day intervals) at 1; Letter from Rose Crellin, Commercial 
Wireless Division, Wireless Telecommunications Bureau to Michael 
Deuel Sullivan, Esq. (February 4, 2000) (advising Western not to 
file an EA until ``after completion of the MOA . . . with the 
SHPO,'' since the tower was already constructed) at 1.  
18  Letter  from   Merlan  E.  Paaverud,   Jr.,  State   Historic 
Preservation Officer, State Historical Society of North Dakota to 
Amos  Loveday,   Federal  Communications   Commission,   Wireless 
Telecommunications Bureau (January 12, 2004) at 2.  
1947 U.S.C. § 504(b); 47 C.F.R. § 1.80(f)(4).
20Nationwide Programmatic  Agreement  Regarding the  Section  106 
National Historic Preservation Act Review Process, WT Docket  No. 
03-128, Report and Order, FCC 04-222 (rel. Oct. 5, 2004).
21Id. at ¶ 169.