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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-043
In the Matter of
) Acct. No. 200932100070
InFill Towers of America, LLC
) FRN No. 0018006437
)
ORDER
Adopted: July 8, 2009 Released: July 10, 2009
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 InFill Towers of
America, LLC ("InFill"). The Consent Decree terminates an
investigation by the Bureau against InFill for possible violation of
section 1.1307(a)(4) of the Commission's Rules ("Rules") regarding
the construction of certain wireless communications facilities in
Mississippi.
2. The Bureau and InFill have negotiated the terms of the Consent Decree
that resolves 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 InFill 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 InFill Towers of
America, LLC, 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-09-SE-043
In the Matter of
) Acct. No. 200932100070
InFill Towers of America, LLC
) FRN No. 0018006437
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and InFill Towers of America, LLC
("InFill"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether InFill violated section 1.1307(a)(4) of the Commission's
Rules ("Rules") with respect to the construction of two wireless
communications facilities in Benton, Mississippi.
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. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "InFill Towers of America, LLC" or "InFill" means InFill Towers of
America, LLC and its predecessors-in-interest and
successors-in-interest.
h. "Investigation" means the investigation commenced by the Bureau upon
receipt of a referral from the Wireless Telecommunications Bureau
regarding InFill's possible violation of the Commission's
environmental regulations set forth in section 1.1307(a)(4).
i. "Parties" means InFill 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 parties proposing to
construct facilities that are Commission undertakings 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 these
parties 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. InFill is a small tower company serving rural areas in Mississippi,
including Benton, Mississippi. InFill completed construction on two
towers in Benton, Mississippi, that required antenna structure
registration under Part 17 of the Commission's rules, without fully
completing the environmental review process. While InFill completed
the NEPA review for effects, other than historic preservation, and
conducted the tribal participation process prior to construction,
InFill did not complete review under Section 106 of the NHPA for
direct effects prior to construction. The Mississippi State Historic
Preservation Officer stated that based on the apparent construction
activity, it could not comment on the effects of the towers. InFill's
completed environmental review, including the Section 106 review of
the sites, concluded that the sites have 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 InFill's Form 620's and
supporting documentation, and concurred that the towers do not have an
adverse effect on historic properties. 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. InFill 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, InFill 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 InFill 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 InFill with respect to
InFill'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, InFill 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) InFill will implement on a company-wide basis detailed procedures to
ensure environmental compliance. These procedures may be altered from time
to time if InFill determines that other procedures may better enable it to
comply with the FCC's environmental requirements. InFill 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 InFill's
notification.
(b) InFill 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 InFill's
outside consultants dealing with tower construction and those employees
within InFill 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 InFill employees may track environmental
compliance for each new and collocated tower.
(c) InFill 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
InFill. InFill will oversee any consultant it may employ to ensure
compliance with the environmental requirements.
(d) InFill has recently appointed an experienced Regulatory Compliance
Manager, who is thoroughly familiar with the FCC's environmental
requirements. He will monitor and supervise InFill's regulatory compliance
efforts.
(e) Compliance Reports. InFill will file compliance reports with the
Commission (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 InFill's Section 106 reviews that were
active during the reporting period. For each such Section 106 review,
InFill 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 InFill, stating that the officer has personal
knowledge that InFill 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 Kathy Berthot at Kathy.Berthot@fcc.gov.
f. Termination. Unless stated otherwise, the requirements of this Consent
Decree will expire twenty-four (24) months from the Effective Date.
9. Voluntary Contribution. InFill agrees that it will make a voluntary
contribution to the United States Treasury in the amount of eight
thousand dollars ($8,000.00). 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). InFill shall also send
electronic notification on the date said payment is made to Jackie
Ellington at Jackie.Ellington@fcc.gov and to Kathy Berthot at
Kathy.Berthot@fcc.gov.
10. Waivers. InFill 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. InFill 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
InFill nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and InFill shall waive any statutory
right to a trial de novo. InFill 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.
11. Invalidity. 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.
12. 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 InFill does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. InFill agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
14. 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.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. 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.
17. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
18. 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
InFill Towers of America, LLC,
a Mississippi chartered limited liability company
By: _____________________________
R. Hugo Newcomb, Jr., 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).
47 C.F.R. S:S: 17.4, 17.7.
InFill registered these towers in accordance with the Commission's
requirements. See ASR Nos. 126478, 1265480.
National Environmental Policy Act of 1969, as amended, 42 U.S.C.
4321-4335.
16 U.S.C. S: 470f.
Federal Communications Commission DA 09-1506
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Federal Communications Commission DA 09-1506