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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No.: EB-09-SE-080
Airadigm Communications, Inc. ) Acct. No.: 201132100035
dba AirFire Mobile ) FRN: 0002701688
)
)
ORDER
Adopted: September 30, 2011 Released: September 30, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Airadigm Communications,
Inc. dba AirFire Mobile ("Airadigm"). The Consent Decree resolves and
terminates the Bureau's investigation into Airadigm's compliance with
sections 1.1307(a)(4) and 1.1312(a) of the Commission's Rules
concerning Airadigm's obligation to assess the potential effect on the
environment of the construction of a wireless communications facility.
2. The Bureau and Airadigm 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 that our investigation raises no substantial or material
questions of fact as to whether Airadigm 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 sections 4(i) and 503(b)
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 certified mail, return receipt requested,
to Linda J. Springer, Director of Finance and Accounting, Airadigm
Communications, Inc. dba AirFire Mobile, 2301 Kelbe Dr., 206, Little
Chute, WI 54140-1201, and counsel for Airadigm, Todd Slamowitz, Esq.,
counsel for Airadigm Communications, Inc., Lukas, Nace, Gutierrez &
Sachs, LLP, 1650 Tysons Blvd., Suite 1500, McLean, Virginia 22102.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No.: EB-09-SE-080
Airadigm Communications, Inc. ) Acct. No.: 201132100035
dba AirFire Mobile ) FRN: 0002701688
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
Airadigm Communications, Inc., dba AirFire Mobile, by their authorized
representatives, hereby enter into this Consent Decree for the purpose of
terminating the Enforcement Bureau's investigation into possible
violations of sections 1.1307(a)(4) and 1.1312(a) of the Commission's
rules, pertaining to the required assessment of the potential effect on
the environment of the construction of a wireless communications facility.
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. "Airadigm" means Airadigm Communications, Inc., dba AirFire Mobile,
and its predecessors-in-interest and successors-in-interest.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Airadigm is subject by virtue of its business activities,
including but not limited to, the Environmental Laws.
g. "Compliance Plan" means the compliance obligations and compliance
program described in this Consent Decree at paragraph 8.
h. "Covered Employees" means all employees and agents of Airadigm who
perform duties, or supervise, oversee, or manage the performance of
duties, that relate to Airadigm's responsibilities under the
Environmental Rules.
i. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
j. "Environmental Rules" means sections 1.1307(a)(4) and 1.1312(a) of the
Rules and other Communications Laws implementing the National
Environmental Policy Act of 1969, as amended.
k. "Investigation" means the investigation commenced by the Bureau upon
receipt of a referral from the Wireless Telecommunications Bureau
regarding Airadigm's possible violation of sections 1.1307(a)(4) and
1.1312(a) of the Rules.
l. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by Airadigm to
implement the Compliance Plan.
m. "Parties" means Airadigm and the Bureau, each of which is a "Party".
n. "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 applicants and 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"). This obligation
expressly applies to facilities for which no pre-construction
authorization is required. In considering the potential effects on
historic properties, applicants and licensees must, under section
1.1307(a)(4) of the Rules, follow the prescribed procedures
established by the Programmatic Agreements for collocated antennas and
for historic preservation review. The Collocation Agreement and the
Nationwide Agreement are designed to tailor and streamline in the
context of communications tower and antenna construction 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. Airadigm, a Tier III wireless carrier serving rural areas in
Wisconsin, constructed a 150-foot monopole tower in Red River,
Wisconsin ("Red River site") on July 1, 2005, prior to performing the
required, pre-construction historic preservation review. Several years
after construction of the tower, Airadigm hired a consultant to
evaluate the Red River site for compliance with the Nationwide
Agreement. Based on this evaluation, Airadigm submitted an FCC Form
620 environmental assessment to the Commission's Wireless
Telecommunications Bureau ("WTB") and to the relevant Wisconsin State
Historic Preservation Officer ("SHPO") concluding that the constructed
Red River site did not have adverse direct or visual effects on
historic properties located in the area of potential effects. WTB
reviewed Airadigm's FCC Form 620 and supporting documentation,
including the evaluation by the Wisconsin SHPO, and concurred that
this Airadigm tower did not have an adverse effect on historic
properties. WTB then 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.
5. Jurisdiction. Airadigm agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and that the Bureau
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 Effective Date as defined herein. As of
the Effective Date, 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 the
Investigation. In consideration for the termination of the
Investigation, Airadigm 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 the Investigation through the Effective Date, 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 Airadigm concerning the matters that were the subject
of the Investigation. The Bureau also agrees that it will not, in the
absence of new material evidence, use the facts developed in the
Investigation through the Effective Date, 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 Airadigm
with respect to Airadigm's basic qualifications, including its
character qualifications, to be a Commission licensee.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Airadigm shall within sixty (60) calendar days after the
Effective Date, develop and implement a Compliance Plan to help ensure
future compliance with the Communications Laws, including the
Environmental Rules, and with the terms and conditions of this Consent
Decree. The Compliance Plan shall include, at a minimum, the following
components:
a. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Airadigm shall designate a senior corporate manager
with the requisite corporate and organizational authority to serve as
Compliance Officer and to discharge the duties set forth below. The
person designated as the Compliance Officer shall be responsible for
developing, implementing, and administering the Compliance Plan and
ensuring that Airadigm complies with the terms and conditions of the
Compliance Plan and this Consent Decree. In addition to the general
knowledge of the Communications Laws necessary to discharge his/her
duties under this Agreement, the Compliance Officer shall have
specific knowledge of the Environmental Rules prior to assuming
his/her duties.
b. Operating Procedures on Environmental Rules. Within sixty (60)
calendar days after the Effective Date, Airadigm shall establish
Operating Procedures that all Covered Employees must follow to help
ensure compliance with the Environmental Rules. Airadigm's Operating
Procedures shall include internal procedures and policies specifically
designed to ensure that Airadigm performs the required review of the
potential effects on the environment of any proposed facilities,
including facilities for which no pre-construction authorization is
required, prior to the initiation of construction of such proposed
facilities. Airadigm's Operating Procedures shall incorporate a
Compliance Checklist that describes the steps that a Covered Employee
must follow to determine whether construction of the proposed facility
is categorically excluded from environmental processing under section
1.1306 of the Rules or may have a significant environmental effect, as
defined in section 1.1307 of the Rules.
c. Compliance Manual. Within sixty (60) calendar days after the Effective
Date, the Compliance Officer shall develop and distribute a Compliance
Manual to all Covered Employees. The Compliance Manual shall explain
the Environmental Rules and set forth the Operating Procedures that
Covered Employees shall follow to help ensure Airadigm's compliance
with the Environmental Rules. Airadigm shall periodically review and
revise the Compliance Manual as necessary to ensure that the
information set forth therein remains current and complete. Airadigm
shall distribute any revisions to the Compliance Manual promptly to
all Covered Employees.
d. Compliance Training. Airadigm shall establish and implement a
Compliance Training Program on compliance with the Environmental Rules
and the Operating Procedures. As part of the Compliance Training
Program, Covered Employees shall be advised of Airadigm's obligation
to report any non-compliance with the Environmental Rules under
paragraph 9 of this Consent Decree and shall be instructed on how to
disclose non-compliance to the Compliance Officer. All Covered
Employees shall be trained pursuant to the Compliance Training Program
within sixty (60) calendar days after the Effective Date, except that
any person who becomes a Covered Employee at any time after the
Effective Date shall be trained within thirty (30) calendar days after
the date such person becomes a Covered Employee. Airadigm shall repeat
the compliance training on an annual basis, and shall periodically
review and revise the Compliance Training Program as necessary to
ensure that it remains current and complete and to enhance its
effectiveness.
e. Termination Date. Unless stated otherwise, the requirements of this
paragraph 8 of the Consent Decree shall expire twenty-four (24) months
after the Effective Date.
9. Reporting Non-Compliance. Airadigm shall report any non-compliance
with the Environmental Rules and with the terms and conditions of this
Consent Decree within fifteen (15) calendar days after its discovery
of such non-compliance. Such reports shall include a detailed
explanation of (i) each instance of non-compliance; (ii) the steps
that Airadigm has taken or will take to remedy such non-compliance;
(iii) the schedule on which such proposed remedial actions will be
taken; and (iv) the steps that Airadigm has taken or will take to
prevent the recurrence of any such non-compliance. All reports of
non-compliance shall be submitted to the Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Rm. 3C366, Washington, D.C. 20554, with copies
submitted electronically to Nissa Laughner at Nissa.Laughner@fcc.gov
and JoAnn Lucanik at JoAnn.Lucanik@fcc.gov. The reporting obligations
set forth in this paragraph 9 shall expire twenty-four (24) months
after the Effective Date.
10. Compliance Reports. Airadigm shall file Compliance Reports with the
Commission ninety (90) calendar days after the Effective Date, twelve
(12) months after the Effective Date and twenty-four (24) months after
the Effective Date.
a. Each Compliance Report shall include a detailed description of
Airadigm's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree and the Environmental Rules. In
addition, each Compliance Report shall include a certification by the
Compliance Officer, as an agent of and on behalf of Airadigm, stating
that the Compliance Officer has personal knowledge that Airadigm (i)
has established and implemented the Compliance Plan; (ii) has utilized
the Operating Procedures since the implementation of the Compliance
Plan; and (iii) is not aware of any instances of non-compliance with
the terms and conditions of this Consent Decree, including the
reporting obligations set forth in paragraph 9 hereof.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such certification and must comply
with section 1.16 of the Rules and be subscribed to as true under
penalty of perjury in substantially the form set forth therein.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Airadigm,
shall provide the Commission with a detailed explanation of the
reason(s) why and describe fully (i) each instance of non-compliance;
(ii) the steps that Airadigm has taken or will take to remedy such
non-compliance, including the schedule on which proposed remedial
actions will be taken; and (iii) the steps that Airadigm has taken or
will take to prevent the recurrence of any such non-compliance,
including the schedule on which such preventive action will be taken.
d. All Compliance Reports shall be submitted to the 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 Nissa Laughner
at Nissa.Laughner@fcc.gov and to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov.
11. 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 Airadigm 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
complaints 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 Airadigm with the Act, the Rules, or
Commission orders.
12. Voluntary Contribution. Airadigm agrees that it will make a voluntary
contribution to the United States Treasury in the amount of seven
thousand dollars ($7,000.00). The payment must be made within thirty
(30) calendar days after the Effective Date. 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 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). Airadigm shall also send electronic notification
to Nissa Laughner at Nissa.Laughner@fcc.gov and to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov on the date said payment is made.
13. Waivers. Airadigm 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 as defined herein. Airadigm 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 Airadigm nor the Commission shall contest the
validity of the Consent Decree or of the Adopting Order, and Airadigm
shall waive any statutory right to a trial de novo. Airadigm hereby
agrees to waive any claims it may 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.
14. 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.
15. 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 Airadigm does not expressly
consent) that provision will be superseded by such Rule or Commission
order.
16. Successors and Assigns. Airadigm agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
17. 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, the Rules, or Commission orders.
18. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
19. 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.
20. Authorized Representative. The individual signing this Consent Decree
on behalf of Airadigm represents and warrants that she is authorized
by Airadigm to execute this Consent Decree and to bind the company to
the obligations set forth herein. The FCC signatory represents that he
is signing this agreement in his official capacity and that he is
authorized to execute this Consent Decree.
21. 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.
________________________________
John D. Poutasse
Acting Chief, Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
Linda J. Springer
Director of Finance and Accounting
Airadigm Communications, Inc. dba AirFire Mobile
________________________________
Date
47 C.F.R. S:S: 1.1307(a)(4), 1.1312(a).
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S:S: 1.1307(a)(4), 1.1312(a).
See, e.g., 42 U.S.C. S:S: 4321-4335.
See 47 C.F.R. S:S: 1.1307(a)(4), 1.1312(a).
47 C.F.R. S: 1.1312(a)("In the case of facilities for which no Commission
authorization prior to construction is required by the Commission's rules
and regulations, the licensee or applicant shall initially ascertain
whether the proposed facility may have a significant environmental impact
as defined in S: 1.1307 of this part.").
See 47 C.F.R. Part 1, App. B ("Collocation Agreement"); see also 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).
See 47 C.F.R. Part 1, App. C ("Nationwide Agreement"); see also 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 Report and Order").
Section 1.1307(a)(4) of the Rules incorporates by reference the
Collocation Agreement and the Nationwide Agreement. The Nationwide
Agreement attaches standardized packets for review of collocated antenna
construction (FCC Form 621) and new tower construction (FCC Form 620). See
Nationwide Agreement Report and Order, 20 FCC Rcd at 1180-1201, Appendix
B, Attachments 3 and 4.
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 on Historic Preservation'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 Report and Order, 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 47 C.F.R. S: 1.1307(a)(4).
Id., Appendix A, Nationwide Programmatic Agreement for Review of Effects
on Historic Properties for Certain Undertakings Approved by the Federal
Communications Commission.
47 C.F.R. S: 1.1306.
47 C.F.R. S: 1.1307.
47 C.F.R. S: 1.16.
Federal Communications Commission DA 11-1586
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Federal Communications Commission DA 11-1586