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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-194
In the Matter of
) Acct. No. 200832100065
Vangard Wireless, LP
) FRN No. 0007911100
)
ORDER
Adopted: August 11, 2008 Released: August 13, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Vangard Wireless, LP
("Vangard"). The Consent Decree terminates an investigation by the
Bureau against Vangard for possible violation of section 1.1307(a)(4)
of the Commission's Rules ("Rules") regarding the construction of a
wireless communications facility in Roswell, New Mexico.
2. The Bureau and Vangard have negotiated the terms of the Consent Decree
that resolve this matter. A copy of the Consent Decree is attached
hereto and incorporated 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 which terminates 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 Vangard 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 Commission's 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 Marjorie Spivak, Esq., counsel for Vangard Wireless, LP,
Bennet & Bennet PLLC, 10 G Street, NE, Suite 710, Washington, DC
20002.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-194
In the Matter of
) Acct. No. 200832100065
Vangard Wireless, LP
) FRN No. 0007911100
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Vangard Wireless, LP ("Vangard"), by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
Vangard violated section 1.1307(a)(4) of the Commission's Rules ("Rules")
with respect to the construction of a wireless communications facility in
Roswell, New Mexico.
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. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
f. "Investigation" means the investigation commenced by the Bureau upon
receipt of a referral from the Wireless Telecommunications Bureau
regarding Vangard's possible violation of the Commission's
environmental regulations set forth in section 1.1307(a)(4).
g. "Parties" means Vangard and the Bureau.
h. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
i. "Vangard Wireless, LP" or "Vangard" means Vangard Wireless, LP and its
predecessors-in-interest and successors-in-interest.
II. BACKGROUND
2. Section 1.1307(a)(4) of the Rules requires licensees to consider
whether their proposed facilities would affect properties listed or
eligible for listing ("historic properties") in the National Register
of Historic Places ("National Register"). In considering potential
effects on historic properties, Section 1.1307(a)(4) requires
licensees to follow the prescribed procedures established by the
Programmatic Agreements for collocated antennas and for historic
preservation review. The Collocation and Nationwide Agreements are
designed to tailor and streamline the review and consultation
procedures required by the National Historic Preservation Act of 1966,
as amended ("NHPA"), and the implementing regulations issued by the
Advisory Council on Historic Preservation ("Advisory Council").
3. Vangard is a small tower company serving rural areas in New Mexico,
including Roswell, New Mexico. Vangard completed construction on a
tower in Roswell, New Mexico on February 12, 2007 without fully
completing the environmental review process. While Vangard completed
the NEPA review for effects, other than historic preservation, and
completed the tribal participation process prior to construction,
Vangard did not complete review under Section 106 of the NHPA until
after construction was completed. Vangard's completed environmental
review, including the Section 106 review of the site, concluded that
the site had no direct effect on historic properties and no adverse
effect on historic properties in the area of potential effects for
visual effects. The Commission's Wireless Telecommunications Bureau
("WTB") reviewed Vangard's Form 620 and supporting documentation, and
concurred that the tower does not have an adverse effect on historic
properties. On April 10, 2008, the WTB referred the matter to the
Enforcement Bureau for investigation.
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
without change, addition, modification, or deletion.
5. Jurisdiction. Vangard agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and 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 date on which the Bureau releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other Order of the
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission 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 its
investigation. In consideration for the termination of said
investigation, Vangard 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 this
investigation through the Effective Date of the Consent Decree, or the
existence of this Consent Decree, to institute, on its own motion, any
new proceeding, formal or informal, or take any action on its own
motion against Vangard concerning the matters that were the subject of
the investigation. The Bureau also agrees that it will not use the
facts developed in this investigation through the Effective Date of
this Consent Decree, or the existence of this Consent Decree, to
institute on its own motion any proceeding, formal or informal, or
take any action on its own motion against Vangard with respect to
Vangard's basic qualifications, including its character
qualifications, to be a Commission licensee or authorized common
carrier.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Vangard agrees to maintain a Compliance Plan related to
future compliance with the Act, the Commission's Rules, and the
Commission's Orders. The Plan will include, at a minimum, the
following components:
(a) Vangard will implement on a company-wide basis detailed procedures to
ensure environmental compliance. These procedures may be altered from time
to time if Vangard determines that other procedures may better enable it
to comply with the FCC's environmental requirements. Vangard shall notify
the Bureau and the Wireless Telecommunications Bureau in writing regarding
any such modifications at least 25 calendar days before they take effect
and either the Bureau or the Wireless Telecommunications Bureau may
disapprove such modification within 25 calendar days of their receipt of
Vangard's notification.
(b) Vangard has recently commissioned and made part of its internal
procedures "A Scope of Work for Compliance with the FCC's Environmental
Rules" manual. The "Scope of Work" manual describes the FCC's
environmental requirements and the federal laws and policies that are
cited in or related to the FCC's environmental rules. It also spells out
in detail the responsibilities for environmental compliance of Vangard's
outside consultants dealing with tower construction and those employees
within Vangard who supervise the consultants and the methods by which
environmental compliance will be assured at each stage of the tower
construction process. Attached to the "Scope of Work" manual are
"checklists" by which responsible Vangard employees may track
environmental compliance for each new and collocated tower.
(c) Vangard will provide annual training to its employees responsible for
environmental compliance to ensure that they are aware of their
responsibilities to ensure compliance with environmental requirements by
Vangard. Vangard will oversee any consultant it may employ to ensure
compliance with the environmental requirements.
(d) Vangard has recently appointed an experienced Regulatory Compliance
Manager, who is thoroughly familiar with the FCC's environmental
requirements. He will monitor and supervise Vangard's regulatory
compliance efforts.
(e) Compliance Reports. Vangard will file compliance reports with the
Commission ninety (90) days after the Effective Date, twelve (12) months
after the Effective Date, and twenty-four (24) months after the Effective
Date. Each report will identify all of Vangard's Section 106 reviews that
were active during the reporting period. For each such Section 106 review,
Vangard will specify the dates of any FCC Form 620 submission to the State
Historic Preservation Officer and notification to tribes, local
governments and the public, as well as the resolution or current status of
the review. Each report shall also include a compliance certificate from
an officer, as an agent of Vangard, stating that the officer has personal
knowledge that Vangard has established operating procedures intended to
ensure compliance with this Consent Decree, together with an accompanying
statement explaining the basis for the officer's compliance certification.
All reports shall be submitted to Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, 445 12th Street,
S.W., Rm. 3C366, Washington, D.C. 20554. All reports shall also be
submitted electronically to Jackie Ellington at Jackie.Ellington@fcc.gov
and to JoAnn Lucanik at JoAnn.Lucanik@fcc.gov.
f. Termination. Unless stated otherwise, the requirements of this Consent
Decree will expire twenty-four (24) months from the Effective Date.
9. Section 208 Complaints; Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating complaints filed pursuant to section 208 of the Act
against Vangard or its affiliates for alleged violations of the Act,
or for any other type of alleged misconduct, regardless of when such
misconduct took place. The Commission's adjudication of any such
complaint will be based solely on the record developed in that
proceeding. Except as expressly provided in this Consent Decree, this
Consent Decree shall not prevent the Commission from investigating new
evidence of noncompliance by Vangard of the Act, the rules, or the
Order.
10. Voluntary Contribution. Vangard agrees that it will make a voluntary
contribution to the United States Treasury in the amount of five
thousand dollars ($5,000.00). The payment will be made within thirty
(30) days after the Effective Date of the Adopting Order. 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 Number 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). Vangard shall also send
electronic notification on the date said payment is made to Jackie
Ellington at Jackie.Ellington@fcc.gov and to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov.
11. Waivers. Vangard 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
adopting the Consent Decree without change, addition, modification, or
deletion. Vangard 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
Vangard nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Vangard shall waive any statutory
right to a trial de novo. Vangard hereby agrees to waive any claims it
may otherwise have under the Equal Access to Justice Act, 5 U.S.C. S:
504 and 47 C.F.R. S: 1.1501 et seq., relating to the matters addressed
in this Consent Decree.
12. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or
unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Adopting Order or
Consent Decree, but rather the entire Adopting Order or Consent Decree
shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations
of the Parties shall be construed and enforced accordingly. 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.
13. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted
by the Commission (except an Order specifically intended to revise the
terms of this Consent Decree to which Vangard does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
14. Successors and Assigns. Vangard agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
15. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
17. 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.
18. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
19. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
Vangard Wireless, L.P.,
a Texas limited partnership
By: Vangard Towers, L.L.C.,
Its General Partner
By: _____________________________
Warren D. Harkins, President
_________________________________
Date
47 C.F.R. S: 1.1307(a)(4).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 1.1307(a)(4).
See Wireless Telecommunications Bureau Announces Execution of
Programmatic Agreement with respect to Collocating Wireless Antennas
on Existing Structures, Public Notice, 16 FCC Rcd 5574 (WTB 2001),
recon. denied, 20 FCC Rcd 4084 (WTB 2005) ("Collocation Agreement").
See Nationwide Programmatic Agreement Regarding the Section 106
National Historic Preservation Act Review Process, Report and Order,
WT Docket No. 03-128, 20 FCC Rcd 1073 (2004), clarified, 20 FCC Rcd
17995 (2005), aff'd, CTIA-The Wireless Ass'n. v. FCC, No. 05-1008
(D.C. Cir. September 26, 2006) ("Nationwide Agreement").
Section 1.1307(a)(4) of the Rules incorporates by reference the
Collocation Agreement and the Nationwide Agreement.
16 U.S.C. S: 470 et seq. The NHPA requires that a federal agency
consider the effects of its federal undertakings, including actions
that it authorizes or approves, on historic properties prior to
issuing federal licenses, permits or approvals. See 16 U.S.C. S:S:
470f, 470w(7). In considering such effects, the NHPA further requires
the federal agency to consider the views of expert agencies.
Specifically, the NHPA requires the federal agency to consider the
views of the Advisory Council on Historic Preservation, the agency
tasked with the responsibility for implementing the NHPA, the
appropriate State Historic Preservation Officer, and, if affected
historic properties are of religious or cultural significance to
Indian tribes or Native Hawaiian organizations, their representatives.
See 16 U.S.C. S:S: 470a(a)(3), (d)(6)(B), 470f, 470i. Consistent with
the Advisory Council's regulations, the Commission's environmental
rules delegate the task of identification and initial consideration of
the effects that proposed facilities may have on historic properties,
including identifying and ensuring contact is made with potentially
affected Indian tribes, to its licensees, permittees and applicants,
but the Commission remains ultimately responsible for enforcement of
the environmental rules. See 47 C.F.R. S: 1.1307(a)(4); see also 36
C.F.R. S: 800.2(a)(3); Nationwide Agreement, 20 FCC Rcd at 1076-77 P:
5.
See 36 C.F.R. S: 800.1 et seq. Under the NHPA and the Advisory
Council's implementing regulations, a federal agency may, with the
agreement of the Advisory Council and the relevant State Historic
Preservation Officer or the National Conference of State Historic
Preservation Officers, adopt Programmatic Agreements to tailor the
historic preservation review and consultation procedures, as well as
exempt actions that are unlikely to affect historic properties. See 16
U.S.C. S: 470v; 36 C.F.R. S: 800.14(b),(c).
National Environmental Policy Act of 1969, as amended, 42 U.S.C.
4321-4335.
16 U.S.C. S: 470f.
Federal Communications Commission DA 08-1886
2
Federal Communications Commission DA 08-1886