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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-09-SE-032
Texas RSA 1 Limited Partnership dba XIT ) Acct. No. 201032100016
Wireless
) FRN No. 0001678614
)
ORDER
Adopted: April 9, 2010 Released: April 9, 2010
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 Texas RSA 1 Limited
Partnership dba XIT Wireless ("XIT"). The Consent Decree terminates an
investigation by the Bureau against XIT for possible violation of
section 1.1307(a)(4) of the Commission's Rules ("Rules") regarding
the construction of certain wireless communications facilities in
Texas.
2. The Bureau and XIT 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 XIT 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 Texas RSA 1 Limited
Partnership dba XIT Wireless, 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
)
In the Matter of ) File No. EB-09-SE-032
Texas RSA 1 Limited Partnership dba XIT ) Acct. No. 201032100016
Wireless ("XIT")
) FRN No. 0001678614
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Texas RSA 1 Limited Partnership dba
XIT Wireless ("XIT"), by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Bureau's
investigation into whether XIT violated section 1.1307(a)(4) of the
Commission's Rules ("Rules") with respect to the construction of certain
wireless communications facilities in Texas.
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 XIT's possible violation of the Commission's environmental
regulations set forth in section 1.1307(a)(4).
g. "Parties" means XIT and the Bureau.
h. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
i. "Texas RSA 1 Limited Partnership dba XIT Wireless" or "XIT" means
Texas RSA 1 Limited Partnership dba XIT Wireless 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. XIT is a provider of cellular service in the Texas 1 - Dallam Cellular
Market Area. This market is extremely rural, consisting primarily of
open ranchland in the panhandle of Texas. XIT conducted a full due
diligence review of its tower sites and identified several towers
constructed in late 2005 to the fall of 2006 for which XIT did not
complete the historic review under Section 106 of the NHPA prior to
construction. XIT has completed the NEPA review for effects, including
historic preservation, and completed the tribal participation process.
XIT's completed environmental review, including the Section 106
review, concluded that no historic properties are identified in the
Area of Potential Effects for direct effects and that there are no
effects on historic properties identified in the Area of Potential
Effects for visual effects. The Commission's Wireless
Telecommunications Bureau ("WTB") reviewed XIT's Form 620's and
supporting documentation, and concurred that the towers do not have an
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. XIT 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, XIT 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 XIT 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 XIT with respect to XIT'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, XIT 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) XIT will implement on a company-wide basis detailed procedures to
ensure environmental compliance. These procedures may be altered from time
to time if XIT determines that other procedures may better enable it to
comply with the FCC's environmental requirements. XIT 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 XIT's
notification.
(b) XIT 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 XIT's outside consultants
dealing with tower construction and those employees within XIT 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 XIT employees may track environmental compliance for each new
and collocated tower.
(c) XIT 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
XIT. XIT will oversee any consultant it may employ to ensure compliance
with the environmental requirements.
(d) XIT has recently appointed an experienced Regulatory Compliance
Manager, who is thoroughly familiar with the FCC's environmental
requirements. He will monitor and supervise XIT's regulatory compliance
efforts.
(e) Compliance Reports. XIT 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 XIT's Section 106 reviews that were
active during the reporting period. For each such Section 106 review, XIT
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 XIT, stating that the officer has personal
knowledge that XIT 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 XIT 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 XIT of the Act, the rules, or the Order.
10. Voluntary Contribution. XIT 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
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). XIT 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. XIT 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. XIT 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
XIT nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and XIT shall waive any statutory right
to a trial de novo. XIT 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 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 XIT does not expressly consent)
that provision will be superseded by such Commission rule or Order.
14. Successors and Assigns. XIT 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
Texas RSA 1 Limited Partnership dba XIT Wireless
By: _____________________________
Darrell F. Dennis
General Manager
_________________________________
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).
16 U.S.C. S: 470f.
National Environmental Policy Act of 1969, as amended, 42 U.S.C. S:
4321-4335.
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