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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-08-SE-065
In the Matter of
) Acct. No.: 200832100042
Westchester Services LLC
) FRN No.: 0014015226
)
ORDER
Adopted: April 24, 2008 Released: April 28, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Westchester Services LLC
("Westchester"). The Consent Decree terminates an investigation by the
Bureau against Westchester for possible violations of sections
1.1307(a)(3) and 1.1307(a)(4) of the Commission's Rules ("Rules") with
respect to Westchester's construction of three wireless communications
facilities in Bismark, Newman, and Oblong, Illinois.
2. The Bureau and Westchester 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 and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether Westchester possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Rules, the Consent Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that Westchester Services LLC shall make its
voluntary contribution to the United States Treasury, as specified in
the Consent Decree, by mailing a check or similar instrument payable
to the order of the Federal Communications Commission, 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).
8. IT IS FURTHER ORDERED that Westchester will file reports with the
Commission ninety days, twelve months, and twenty-four months after
the Effective Date of this Order. Each report shall include a
compliance certificate from an officer, as an agent of Westchester,
stating that the officer has personal knowledge that Westchester 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 the Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554.
9. 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 Westchester's counsel, William J. Sill, Esq., Wilkinson
Barker Knauer, LLP, 2300 N Street, NW, Suite 700, Washington, DC
20037-1128.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-08-SE-065
In the Matter of
) Acct. No.: 200832100042
Westchester Services LLC
) FRN No.: 0014015226
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Westchester Services LLC
("Westchester" or the "Company"), by their authorized representatives,
hereby enter into this Consent Decree for the purpose of terminating the
Bureau's investigation into whether Westchester violated the environmental
regulations set forth in section 1.1307(a)(4) of the Commission's Rules
with respect to the construction of three wireless communications
facilities in Bismark, Newman, and Oblong, Illinois.
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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Compliance Plan" means the program described in this Consent Decree
at paragraph nine.
e. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
f. "Investigation" means the investigation initiated by the Bureau into
whether Westchester violated the environmental regulations set forth
in section 1.1307(a)(4) of the Commission's Rules with respect to the
construction of three wireless communications facilities in Bismark,
Newman, and Oblong, Illinois.
g. "Westchester" means Westchester Services LLC and its
predecessors-in-interest and successors-in-interest.
h. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms of this Consent Decree without change, addition, deletion, or
modification.
i. "Parties" means Westchester and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
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. Westchester is an engineering consulting firm that owns a total of
nine communications towers. In 2006, Westchester constructed three
towers in Bismark, Newman, and Oblong, Illinois without fully
completing the environmental review process. Subsequently, after
learning of its obligations under the Nationwide Agreement,
Westchester contacted the FCC's Wireless Telecommunications Bureau
("WTB") to discuss the matter and hired a consultant to perform a
post-construction evaluation of the three sites. The consultant
concluded that none of the towers would affect any listed or eligible
properties and the WTB agreed with this determination. On February 8,
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. Westchester 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 Westchester 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 Westchester 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 Westchester
with respect to Westchester's basic qualifications, including its
character qualifications, to be a Commission licensee or authorized
common carrier or hold Commission authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Westchester agrees to create within 30 days of the
Effective date of this Consent Decree and 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. Westchester will establish written policies and procedures governing
its compliance with the FCC's environmental rules.
b. Westchester will designate a Regulatory Compliance Officer responsible
for implementing these environmental policies and training Westchester
personnel and consultants with regard to the FCC's environmental
rules.
c. Westchester will regularly receive updates from communications counsel
concerning relevant FCC developments and decisions and modify its
environmental compliance policies as appropriate.
d. Westchester will, for a period of two years, agree to report to the
Wireless Telecommunications Bureau staff any problems related to the
historic consultation for towers constructed after the Effective Date
of the Adopting Order.
e. Compliance Reports. Westchester will file compliance reports with the
Commission ninety days, twelve months, and twenty four months after
the Effective Date of the Order adopting this Consent Decree. Each
compliance report shall include a compliance certificate from an
officer, as an agent of Westchester, stating that the officer has
personal knowledge that Westchester 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 compliance reports shall be
submitted to the Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554.
f. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire 24 months from the Effective Date.
10. Voluntary Contribution. Westchester agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
sixteen thousand five hundred dollars ($16,500.00). The payment will be
made within 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).
11. Waivers. Westchester 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
Order adopting this Consent Decree, provided the Bureau issues an Order
adopting the Consent Decree without change, addition, modification, or
deletion. Westchester 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
Westchester nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Westchester shall waive any statutory
right to a trial de novo. Westchester 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.
a. 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 Westchester does not expressly consent)
that provision will be superseded by such Commission rule or Order.
14. Successors and Assigns. Westchester 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.
_______________________________
Kris Anne Monteith
Chief
Enforcement Bureau
________________________________
Date
________________________________
Jack Auriema
Manager
Westchester Services LLC
________________________________
Date
47 C.F.R. S:S: 1.1307(a)(3) and 1.1307(a)(4).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111 and 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 consideration of the
effects that proposed facilities may have on historic properties,
including the initiation of consultation, 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).
Federal Communications Commission DA 08-954
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Federal Communications Commission DA 08-954