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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File Nos.: EB-06-SE-344; EB-06-SE-437
In the Matter of
) Acct. No. 200732100001
T-Mobile USA, Inc.
) FRN No. 0004677209
)
ORDER
Adopted: January 15, 2009 Released: January 15, 2009
By the Assistant Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and T-Mobile USA, Inc.
("T-Mobile"). The Consent Decree is for the purpose of terminating the
Bureau's investigation into whether T-Mobile violated section
1.1307(a)(4) of the Commission's Rules ("Rules") with respect to the
construction of a wireless communications facilities in Philadelphia,
Pennsylvania, and Chimayo, New Mexico.
2. The Bureau and T-Mobile have negotiated the terms of a 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 and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude there are no substantial or material questions of fact as to
whether T-Mobile 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 Act,
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 a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to counsel for T-Mobile, David H. Solomon,
Esq., Wilkinson Barker Knauer, LLP, 2300 N Street, NW, Suite 700,
Washington, DC 20037.
FEDERAL COMMUNICATIONS COMMISSION
Susan McNeil
Assistant Chief
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File Nos.: EB-06-SE-344; EB-06-SE-437
In the Matter of
) Acct. No.: 200732100001
T-Mobile USA, Inc.
) FRN No.: 0004677209
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and T-Mobile USA, Inc. ("T-Mobile" or
the "Company"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Bureau's
investigation into whether T-Mobile violated the historic preservation
regulations set forth in section 1.1307(a)(4) of the Commission's Rules
and any related rules with respect to the construction of wireless
communications facilities in Philadelphia, Pennsylvania, and Chimayo, 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. "Compliance Plan" means the program described in this Consent Decree
at paragraph nine.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigations" means the investigations initiated by the Bureau into
whether
T-Mobile violated the historic preservation regulations set forth in
section 1.1307(a)(4) of the Commission's Rules and any related rules
with respect to the construction of wireless communications facilities
in Philadelphia, Pennsylvania (EB-06-SE-344), and Chimayo, New Mexico
(EB-06-SE-437).
h. "Notice of Apparent Liability" or "NAL" means the Notice of Apparent
Liability for Forfeiture issued against T-Mobile Northeast, L.L.C. on
October 19, 2006.
T-Mobile Northeast, L.L.C., 21 FCC Rcd 11799 (EB 2006).
i. "Parties" means T-Mobile and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
k. "T-Mobile" means T-Mobile USA, Inc., and its subsidiaries, affiliates,
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. On October 19, 2006, the Enforcement Bureau issued the Notice of
Apparent Liability against T-Mobile with respect to T-Mobile's
compliance with section 1.1307(a)(4) of the Commission's Rules
regarding collocation of antennas onto the roof of property in
Philadelphia, Pennsylvania. The NAL noted that T-Mobile voluntarily
disclosed this matter to Commission staff and took prompt efforts to
address historic preservation concerns by consulting with the
Pennsylvania State Historic Preservation Officer ("SHPO"), which
determined that T-Mobile's facility "would have no effect on historic
properties."
4. The Bureau also has been investigating T-Mobile's compliance with
section 1.1307(a)(4) of the Commission's rules regarding construction
and operation of telecommunications facilities in Chimayo, New Mexico.
The Commission's Wireless Telecommunications Bureau has found that
T-Mobile's tower in Chimayo has an adverse effect on historic properties.
The Wireless Telecommunications Bureau also has found, in connection with
the Chimayo investigation, that
T-Mobile's "inadvertent errors and admissions do not establish an
intentional avoidance of NHPA review or an intentional adverse effect on a
historic property in contravention of Section 110(k)" of the NHPA.
T-Mobile has been actively consulting with Commission staff and the New
Mexico SHPO to address the effects of the Chimayo tower.
III. TERMS OF AGREEMENT
5. 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.
6. Jurisdiction. T-Mobile 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.
7. 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.
8. Termination of Investigations. 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
investigations without any findings of liability on the part of
T-Mobile and to cancel the NAL. In consideration for the termination
of said investigations, T-Mobile 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 these investigations through the Effective Date of the
Consent Decree, or the existence of this Consent Decree, to institute,
on its own motion (or recommend to the Commission) any new enforcement
proceeding, formal or informal, or take any action on its own motion
against T-Mobile concerning the matters that were the subject of the
investigations. The Bureau also agrees that it will not use the facts
developed in the investigations through the Effective Date of this
Consent Decree, or the existence of this Consent Decree, to institute
on its own motion (or recommend to the Commission) any proceeding,
formal or informal, or take any action on its own motion (or recommend
to the Commission any action) against T-Mobile with respect to
T-Mobile's basic qualifications, including its character
qualifications, to be a Commission licensee or authorized common
carrier or hold Commission authorizations.
9. Compliance Plan. For purposes of settling the matters set forth
herein, T-Mobile 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 historic preservation requirements of the
Act, the Commission's Rules, and the Commission's Orders. The Plan
will include, at a minimum, the following components:
a. Compliance Team. T-Mobile shall appoint a two-person team that will be
responsible for implementation of this Compliance Plan. This team
shall be thoroughly familiar with the FCC's environmental
requirements, including the Collocation Agreement and the historic
preservation review process under the Nationwide Agreement. T-Mobile
shall provide those persons' identities and contact information to the
FCC and ensure that this information is kept current.
b. Compliance Procedures. T-Mobile will periodically review, at least
once during the first twelve months after the Effective Date and once
during the second twelve months after the Effective Date, the
Company's written policies and procedures governing its compliance
with the Commission's historic preservation requirements, and will
make any changes to such policies and procedures, as appropriate, to
assist in compliance with the Act, the Commission's Rules and the
Commission's Orders. These policies and procedures shall spell out in
detail the historic preservation compliance responsibilities of
T-Mobile's outside consultants dealing with wireless facilities
construction and of those employees within T-Mobile who supervise
those consultants, as well as the methods by which historic
preservation compliance will be assured at each stage of the
pre-construction and construction process. As part of these
procedures, to better ensure the completeness and accuracy of its
submissions, for those states where the SHPO is participating,
T-Mobile will encourage its consultants to use the FCC's Electronic
Section 106 Filing System ("E-Section 106 System") for submitting
materials to the State Historic Preservation Officers. T-Mobile shall
provide an executive summary of its written policies and procedures to
the Bureau and the Wireless Telecommunications Bureau within 30 days
of the Effective Date of this Consent Decree.
c. Compliance Training. T-Mobile will periodically conduct, at least once
during the first twelve months after the Effective Date and once
during the second twelve months after the Effective Date, training for
key T-Mobile personnel and consultants who have responsibility for and
involvement in communications tower and antenna siting with regard to
T-Mobile's policies and procedures governing compliance with the FCC's
historic preservation rules and those rules themselves. Relevant new
employees and consultants will also be trained within 90 days of their
employment. The training program shall include detailed information
concerning the Section 106 process, including the FCC Form 620 and
Form 621 Submission Packets and the Tower Construction Notification
System.
d. FCC Monitoring. T-Mobile will monitor FCC developments and decisions
and modify its historic preservation compliance policies as
appropriate. T-Mobile will continue reasonably to cooperate with the
FCC regarding the accuracy of T-Mobile's submittals for tower
construction and collocation.
e. Good Faith Consultation Efforts. T-Mobile will continue to consult in
good faith with the Wireless Telecommunications Bureau and the New
Mexico SHPO regarding the Chimayo, New Mexico site referenced in
paragraph four above.
f. Compliance Reports. T-Mobile 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
official (Vice President or higher), as an agent of T-Mobile, stating
that the official has personal knowledge that T-Mobile has complied
with the terms of the Compliance Plan set forth in this paragraph,
together with an accompanying statement explaining the basis for the
official'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. All reports shall also be submitted
electronically to Jacqueline Ellington, Esq. at
Jackie.Ellington@fcc.gov and to JoAnn Lucanik, Esq. at
JoAnn.Lucanik@fcc.gov.
g. Termination Date. Unless stated otherwise, the requirements of this
paragraph will expire twenty four months from the Effective Date.
10. 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 T-Mobile 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 T-Mobile with the Act, the rules, or
Commission Orders.
10. Voluntary Contribution. T-Mobile agrees that it will make a voluntary
contribution to the United States Treasury in the amount of twenty-five
thousand dollars ($25,000.00). 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). T-Mobile shall also send
electronic notification on the date said payment is made to Jacqueline
Ellington, Esq. at Jackie.Ellington@fcc.gov and JoAnn Lucanik, Esq. at
JoAnn.Lucanik@fcc.gov.
11. Waivers. T-Mobile 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.
T-Mobile 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 T-Mobile nor the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and T-Mobile shall waive any statutory right to a trial de
novo. T-Mobile 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. Invalidity. 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.
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 T-Mobile does not expressly consent) that
provision will be superseded by such Commission rule or Order.
14. Successors and Assigns. T-Mobile 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.
_______________________________
Susan McNeil
Assistant Chief
Enforcement Bureau
________________________________
Date
________________________________
Kathleen O'Brien Ham
Vice President, Federal Regulatory
T-Mobile USA, Inc.
________________________________
Date
47 U.S.C. S: 302a(b).
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 sub nom. CTIA-The Wireless Ass'n. v. FCC, 466 F.3d
105 (D.C. Cir. 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 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).
See Letter from Andres MacDonald, Chief, Division of Preservation
Services, Pennsylvania Historical and Museum Commission to Stephen W.
Tull, URS Corporation (May 10, 2006).
See E-mail from Jeffrey S. Steinberg, Deputy Chief, Spectrum and
Competition Policy Division, Wireless Telecommunications Bureau, to
Katherine Slick, New Mexico State Historic Preservation Officer, et
al. (Nov. 5, 2008).
See Letter from Jeffrey S. Steinberg, Deputy Chief, Spectrum and
Competition Policy Division, Wireless Telecommunications Bureau, to
Charlene Dwin Vaughn, AICP, Assistant Director, Office of Federal
Programs, Federal Permitting, Licensing, and Assistance, Advisory
Council on Historic Preservation (Oct. 3, 2008).
Federal Communications Commission DA 09-36
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