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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No.: EB-10-SE-172
In the Matter of
) Acct. No.: 201232100036
Caprock Cellular Limited Partnership
) FRN: 0001665900
)
)
ORDER
Adopted: August 7, 2012 Released: August 7, 2012
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (Bureau) of the Federal Communications
Commission (Commission), Caprock Cellular Limited Partnership, and its
managing general partner, CR Telco, Inc. (Caprock). The Consent Decree
resolves and terminates the Bureau's investigation into Caprock's
compliance with Sections 1.1307(a)(4) and 1.1312(a) of the
Commission's rules (Rules) pertaining to the required assessment of
the potential effect on the environment of the construction of a
wireless communications facility.
2. The Bureau and Caprock have negotiated the Consent Decree that
resolves this matter. A copy of the Consent Decree is attached hereto
and incorporated herein 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 Caprock 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 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 Jim Whitefield, President and Chief Executive Officer,
CR Telco, Inc., Managing General Partner of Caprock Cellular Limited
Partnership, P.O. Box 119, 121 E. Third Street, Spur, Texas 79370, and
to Marjorie Spivak, Esq., counsel for Caprock Cellular Limited
Partnership, Bennet & Bennet, PLLC, 6124 MacArthur Boulevard,
Bethesda, MD 20816.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No.: EB-10-SE-172
In the Matter of
) Acct. No.: 201232100036
Caprock Cellular Limited Partnership
) FRN: 0001665900
)
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
Caprock Cellular Limited Partnership, 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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Caprock Cellular Limited Partnership" or "Caprock" means Caprock
Cellular Limited Partnership and its managing general partner, CR
Telco, Inc., as well as their predecessors-in-interest and
successors-in-interest.
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 Caprock is subject by virtue of its business activities,
including but not limited to, the Environmental Laws.
g. "Compliance Plan" means the compliance obligations, program, and
procedures described in this Consent Decree at paragraph 10.
h. "Covered Employees" means all employees and agents of Caprock who
perform, or supervise, oversee, or manage the performance of, duties
that relate to Caprock'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 in
response to a referral from the Wireless Telecommunications Bureau
regarding Caprock's possible violations 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 Caprock to implement
the Compliance Plan.
m. "Parties" means Caprock 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). Section 1.1307(a)(4) became effective on March 7,
2005.
3. Caprock is a Tier III wireless carrier serving rural areas in Texas.
On March 17, 2005, Caprock notified the FCC via ASR No. 1246558 that
it had completed construction of a replacement tower located at
Barnett Ranch in Guthrie, Texas, on March 15, 2005. At the time
construction was completed, Caprock had not yet performed the required
review of the tower's potential effects on historic properties.
Caprock explained that it believed that construction of the
replacement tower was exempt from the requirements of Section
1.307(a)(4). Caprock subsequently determined that the Burnett Ranch
tower did not qualify as a replacement tower "because the height of
the replacement tower was substantially increased and the boundaries
of the original site were expanded by more than 30 feet."
4. After conducting the required historic preservation review of the
Barnett Ranch tower, Caprock submitted on July 12, 2010, its FCC Form
620 (FCC Wireless Telecommunications Bureau New Tower (NT) Submission
Packet) to the Texas Historic Commission State Historic Preservation
Officer (Texas SHPO). The Texas SHPO subsequently stated that if it
had been consulted prior to construction of the Barnett Ranch tower,
it likely would not have found any adverse effect on historic
properties from the construction of the facility. After reviewing
these substantive environmental filings, including the findings of the
Texas SHPO, WTB referred the matter to the Bureau for investigation
and possible enforcement action. The Bureau and Caprock entered into
tolling agreements to toll the statute of limitations.
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.
6. Jurisdiction. Caprock 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.
7. 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 Commission.
Any violation of the Adopting Order or of the terms of this Consent
Decree shall constitute a separate violation of a Commission order,
entitling the Commission to exercise any rights and remedies attendant
to the enforcement of a Commission order.
8. 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, Caprock 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
Caprock concerning the matters that were the subject of the
Investigation. The Bureau also agrees that in the absence of new
material evidence it 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 proceeding, formal
or informal, or take any action on its own motion against Caprock with
respect to Caprock's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
authorizations.
9. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Caprock 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 Caprock 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 Consent Decree, the Compliance Officer shall have
specific knowledge of the Environmental Rules prior to assuming
his/her duties.
10. Compliance Plan. For purposes of settling the matters set forth
herein, Caprock agrees that it shall within sixty (60) calendar days
after the Effective Date, develop and implement a Compliance Plan
designed to ensure future compliance with the Communications Laws and
with the terms and conditions of this Consent Decree. With respect to
the Environmental Rules, Caprock shall implement the following
procedures:
(a) Operating Procedures on Environmental Rules. Within sixty (60)
calendar days after the Effective Date, Caprock shall establish Operating
Procedures that all Covered Employees must follow to help ensure
compliance with the Environmental Rules. Caprock's Operating Procedures
shall include internal procedures and policies specifically designed to
ensure that Caprock performs the required review of the potential effects
on the environment and on historic properties of any proposed facilities,
including facilities for which no pre-construction authorization is
required, prior to the initiation of construction of such proposed
facilities. In connection with this Consent Decree, Caprock has developed
a Scope of Work for Compliance with the FCC's Environmental Rules (Scope
of Work), which Caprock shall incorporate into its Operating Procedures.
The Scope of Work sets forth the procedures that Caprock's third-party
contractors and Covered Employees who supervise and manage such
third-party contractors shall follow to ensure compliance with the
Environmental Rules at each stage of the tower construction process.
Caprock'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. Caprock shall periodically review and revise the Operating
Procedures, including the Scope of Work, as necessary to ensure that it
remains current and complete and to enhance its effectiveness.
(b) 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 Caprock's compliance with the
Environmental Rules. Caprock shall periodically review and revise the
Compliance Manual as necessary to ensure that the information set forth
therein remains current and complete. Caprock shall distribute any
revisions to the Compliance Manual promptly to all Covered Employees.
(c) Compliance Training. Caprock 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 Caprock's obligation to report any
noncompliance with the Environmental Rules under paragraph 11 of this
Consent Decree and shall be instructed on how to disclose noncompliance 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.
Caprock 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.
11. Reporting Noncompliance. Caprock shall report any noncompliance with
the Environmental Rules and with the terms and conditions of this
Consent Decree within fifteen (15) calendar days after discovery of
such noncompliance. Such reports shall include a detailed explanation
of (i) each instance of noncompliance; (ii) the steps that Caprock has
taken or will take to remedy such noncompliance; (iii) the schedule on
which such proposed remedial actions will be taken; and (iv) the steps
that Caprock has taken or will take to prevent the recurrence of any
such noncompliance. All reports of noncompliance 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 Linda
Nagel at Linda.Nagel@fcc.gov and to Ricardo Durham at
Ricardo.Durham@fcc.gov.
12. Compliance Reports. Caprock 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
Caprock'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 Caprock, stating
that the Compliance Officer has personal knowledge that Caprock (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 noncompliance with
the terms and conditions of this Consent Decree, including the
reporting obligations set forth in paragraph 11 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 Caprock, shall
provide the Commission with a detailed explanation of the reason(s)
why and describe fully (i) each instance of noncompliance; (ii) the
steps that Caprock has taken or will take to remedy such
noncompliance, including the schedule on which proposed remedial
actions will be taken; and (iii) the steps that Caprock has taken or
will take to prevent the recurrence of any such noncompliance,
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 Linda Nagel at
Linda.Nagel@fcc.gov and to Ricardo Durham at Ricardo.Durham@fcc.gov.
13. Termination Date. Unless stated otherwise, the obligations set forth
in paragraphs 9 through 12 of this Consent Decree shall expire
twenty-four (24) months after the Effective Date.
14. 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 Caprock 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 Caprock with the Communications Laws.
15. Voluntary Contribution. Caprock agrees that it will make a voluntary
contribution to the United States Treasury in the amount of six
thousand five hundred dollars ($6,500) within thirty (30) calendar
days after the Effective Date. Caprock shall also send electronic
notification of payment to Linda Nagel at Linda.Nagel@fcc.gov, Ricardo
Durham at Ricardo.Durham@fcc.gov, and Samantha Peoples at
Sam.Peoples@fcc.gov on the date said payment is made. The payment must
be made by check or similar instrument, wire transfer, or credit card,
and must include the NAL/Account number and FRN referenced above.
Regardless of the form of payment, a completed 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).
Below are additional instructions you should follow based on the form
of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
If you have questions regarding payment procedures, please contact the
Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
e-mail, ARINQUIRIES@fcc.gov.
1. Waivers. Caprock 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. Caprock 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 Caprock nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Caprock
shall waive any statutory right to a trial de novo. Caprock hereby
agrees to waive any claims it may have under the Equal Access to
Justice Act relating to the matters addressed in this Consent Decree.
17. 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.
18. 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 Caprock does not expressly
consent), that provision will be superseded by such Rule or Commission
order.
19. Successors and Assigns. Caprock Cellular Limited Partnership and CR
Telco, Inc. agree that the provisions of this Consent Decree shall be
binding on their successors, assigns, and transferees.
20. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Investigation. 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 Communications Laws.
21. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
22. 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.
23. Authorized Representative. The individual signing this Consent Decree
on behalf of Caprock represents and warrants that he is authorized by
Caprock Cellular Limited Partnership and CR Telco, Inc. to execute
this Consent Decree and to bind Caprock to the obligations set forth
herein. The FCC signatory represents that he is signing this Consent
Decree in his official capacity and that he is authorized to execute
this Consent Decree.
24. 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
Chief, Spectrum Enforcement Division
Enforcement Bureau
____________________________
Date
____________________________
Jim Whitefield
President and Chief Executive Officer
CR Telco, Inc., the managing general partner of Caprock Cellular Limited
Partnership
____________________________
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).
National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat.
852 (1970), as amended (codified at 42 U.S.C. S:S: 4321-4347).
See 47 C.F.R. S:S: 1.1307(a)(4), 1.1312(a).
See 47 C.F.R. S: 1.1307(a)(4). Although the current version of Section
1.1307(a)(4) became effective March 7, 2005, the prior version of Section
1.1307(a)(4) also required the preparation of an Environmental Assessment
for "[f]acilities that may affect districts, sites, buildings, structures
or objects, significant in American history, architecture, archeology,
engineering or culture, that are listed, or are eligible for listing, in
the National Register of Historic Places." 47 C.F.R. 1.1307(a)(4) (2004).
Id. 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 id. 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 (Wireless Tele. Bur. 2001), recon. denied,
20 FCC Rcd 4084 (Wireless Tele. Bur. 2005).
See id. 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, 466 F.3d 105 (D.C. Cir. 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 1179-1201, 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
id. 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, para. 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).
Caprock is managed by its general partner, CR Telco, Inc., a wholly owned
subsidiary of Cap Rock Telephone Cooperative, Inc., which provides
communications service to underserved areas of rural Texas.
See Letter from Marjorie Spivak, Esq., Bennet & Bennet PLLC, counsel to
Caprock Cellular Limited Partnership, to Dan Abeyta, Spectrum and
Competition Policy Division, FCC Wireless Telecommunications Bureau (May
20, 2010) (May 20 Letter) (on file in EB-10-SE-172) at 2. However, Caprock
also states that it believes that construction of the Barnett Ranch tower
may have been completed prior to March 7, 2005. Id. We note that similar
NEPA requirements would have applied to the construction of the Barnett
Ranch tower even if construction was completed prior to March 2005. See
supra note 4.
May 20 Letter at 1.
Id. at 2.
Id. The Nationwide Agreement exempts from historic preservation review the
construction of a replacement tower "that does not substantially increase
the size of the existing tower . . . and that does not expand the
boundaries of the leased or owned property surrounding the tower by more
than 30 feet in any direction. . . ." Nationwide Agreement Report and
Order, Appendix B, 20 FCC Rcd at B-1.
See, e.g., Tolling Agreement Extension, File No. EB-10-SE-172, executed by
and between John D. Poutasse, Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau, and Jim Whitefield, General Manager, Managing General
Partner, CR Telco, Inc. (Apr. 13, 2012).
47 C.F.R. S: 1.16.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
Equal Access to Justice Act, Pub L. No. 96-481, 94 Stat. 2325 (1980)
(codified at 5 U.S.C. S: 504); see also 47 C.F.R. S:S: 1.1501-1.1530.
Federal Communications Commission DA 12-1273
3
Federal Communications Commission DA 12-1273