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Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of Alaska Railroad Corporation ) ) ) ) ) File No.:
EB-12-IH-0019 Acct. No.: 201332080013 FRN: 0001573419
ORDER
Adopted: February 14, 2013 Released: February 14, 2013
By the Chief, Enforcement Bureau:
1. In this Order, we adopt a Consent Decree entered into between the
Enforcement Bureau (Bureau) and Alaska Railroad Corporation (Alaska
RRC). The Consent Decree terminates an investigation by the Bureau
against Alaska RRC for possible violations of the Commission's ex
parte rules.^
2. A copy of the Consent Decree negotiated by the Bureau and Alaska RRC
is attached hereto and incorporated herein by reference.
3. After evaluating the facts before us and reviewing the terms of the
Consent Decree, 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 Alaska RRC 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) 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
TERMINIATED.
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 William Hupprich, General Counsel, Alaska Railroad
Corporation, P.O. Box 107500, Anchorage, AK, 99510-7500.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of Alaska Railroad Corporation ) ) ) ) ) File No.:
EB-12-IH-0019 Acct. No.: 201332080013 FRN: 0001573419
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission and
Alaska Railroad Corporation, by their authorized representatives,
hereby enter into this Consent Decree for the purpose of terminating
the Enforcement Bureau's investigation into whether Alaska Railroad
Corporation violated the Commission's ex parte rules.^
I. DEFINITIONS
2. 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. "Alaska RRC" or "Company" means Alaska Railroad Corporation 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 Alaska RRC is subject by virtue of its business activities,
including but not limited to the Ex Parte Rules.
g. "Compliance Plan" means the plan described in this Consent Decree at
paragraph 11.
h. "Covered Employees" means all employees and agents of Alaska RRC who
perform, or supervise, oversee, or manage the performance of, duties
that relate to Alaska RRC's responsibilities under the Communications
Laws, including the Ex Parte Rules.
i. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
j. "Ex Parte Rules" means Sections 1.1200-1.1216 of the Commission's
rules.
k. "Investigation" means the investigation initiated by the Office of
General Counsel's January 17, 2012 letter^ regarding possible
violations of the Ex Parte Rules.
l. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by Alaska RRC to
implement the Compliance Plan.
m. "Parties" means Alaska RRC and the Bureau, and each is a "Party."
n. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
3. On February 1, 2011, the Commission adopted the Ex Parte Report and
Order,^ which amended and reformed the Rules on ex parte
presentations made in the course of Commission proceedings.^ These
rules took effect on June 1, 2011. They address, among other matters,
written ex parte presentations directed to the merits or outcomes of
permit-but-disclose proceedings.^ The Rules require that anyone who
makes such a presentation to a Commission decision-maker must file a
copy of that presentation, including any attachment, for inclusion in
the record of the underlying proceeding.^
4. On November 29, 2011, an Alaska RRC employee sent an e-mail and
attachments to Richard Arsenault, an official in the Commission's
Wireless Telecommunications Bureau, regarding Alaska RRC potentially
using spectrum in the 220 MHz band to deploy a positive train control
system.^ Mr. Arsenault determined that the e-mail and attachments
addressed the merits of WT Docket 11-79,^ a permit-but-disclose
proceeding in which Mr. Arsenault was a decision-maker.^ Mr. Arsenault
informed the Alaska RRC employee that Alaska RRC must file his e-mail
and attachments in WT Docket No. 11-79.^ Alaska RRC failed to file the
required materials within the specified time period.^ The subject
materials were subsequently filed in WT Docket No. 11-79 by Mr.
Arsenault.
5. On January 17, 2012, the FCC's Office of General Counsel sent a letter
to Alaska RRC stating that there had been an apparent violation of
the Ex Parte Rules and that the matter was being referred to the
Bureau.^ The Bureau and Alaska RRC thereafter entered into settlement
discussions.
III. TERMS OF AGREEMENT
6. 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.
7. Jurisdiction. Alaska RRC 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.
8. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. Upon release, 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 Bureau to
exercise any rights and remedies attendant to the enforcement of a
Commission Order.
9. 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, Alaska RRC 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, 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 Alaska RRC concerning the matter that was 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 this
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 Alaska RRC
with respect to Alaska RRC's basic qualifications, including its
character qualifications, to be a Commission licensee or hold
Commission authorizations.
10. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Alaska RRC shall designate a senior corporate manager
with the requisite corporate and organizational authority to serve as
a 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 Alaska RRC 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 Ex Parte Rules prior to assuming his/her
duties.
11. Compliance Plan. For purposes of settling the matters set forth
herein, Alaska RRC 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,
including the Ex Parte Rules, and with the terms and conditions of
this Consent Decree. The Compliance Plan shall implement the following
procedures:
a. Operating Procedures. Within sixty (60) calendar days after the
Effective Date, Alaska RRC shall establish Operating Procedures that
all Covered Employees shall follow to help ensure Alaska RRC's
compliance with the Ex Parte Rules. Alaska RRC's Operating Procedures
shall include internal procedures and policies specifically designed
to ensure that Alaska RRC files a copy of any presentation, including
any attachment, it makes to a Commission decision-maker directed to
the merit or outcome of permit-but-disclose proceedings, for inclusion
in the record of the underlying proceeding. Alaska RRC shall also
develop a Compliance Checklist that describes the steps that a Covered
Employee must follow to ensure compliance with the Ex Parte Rules.
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 Communications Laws that apply to Alaska RRC, including the Ex
Parte Rules, and set forth the Operating Procedures that Covered
Employees shall follow to help ensure Alaska RRC's compliance with the
Ex Parte Rules. Alaska RRC shall periodically review and revise the
Compliance Manual as necessary to ensure that the information set
forth therein remains current and accurate. Alaska RRC shall
distribute any revisions to the Compliance Manual promptly to Covered
Employees. The Compliance Manual will require personnel, including
Covered Employees, to contact Alaska RRC's Compliance Officer and, if
appropriate, regulatory legal counsel with any questions or concerns
that arise with respect to Alaska RRC's obligations under the Ex Parte
Rules.
c. Compliance Training Program. Alaska RRC shall establish and implement
a Compliance Training Program on compliance with the Communications
Laws, including the Ex Parte Rules, and the Operating Procedures. As
part of the Compliance Training Program, Covered Employees shall be
advised of Alaska RRC's obligation to report any noncompliance with
the Ex Parte Rules under paragraph 12 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 ninety (90) calendar days after the
Effective Date. Any person who becomes a Covered Employee at any time
thereafter shall be trained within thirty (30) calendar days after the
date such person becomes a Covered Employee. Alaska RRC 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.
d. Termination Date. Unless stated otherwise, the requirements of this
Compliance Plan shall expire thirty-six (36) months after the
Effective Date.
12. Reporting Noncompliance. Alaska RRC shall report any noncompliance
with the Ex Parte 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 Alaska RRC
has taken or will take to remedy such noncompliance; (iii) the
schedule on which such remedial actions will be taken; and (iv) the
steps that Alaska RRC has taken or will take to prevent the recurrence
of any such noncompliance. All reports of noncompliance shall be
submitted to the Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, Room 4-C330,
445 12th Street, SW Washington, DC 20554, with a copy submitted
electronically to Theresa Z. Cavanaugh at [1]Terry.Cavanaugh@fcc.gov,
Pamela S. Kane at [2]Pamela.Kane@fcc.gov, William Kehoe at
William.Kehoe@fcc.gov, and Pam Slipakoff at Pam.Slipakoff@fcc.gov. The
reporting obligations set forth in this paragraph shall expire
thirty-six (36) months after the Effective Date.
13. Compliance Reports. Alaska RRC shall file Compliance Reports with the
Commission ninety (90) calendar days after the Effective Date, twelve
(12) months after the Effective Date, twenty-four (24) months after
the Effective Date, and thirty-six (36) months after the Effective
Date.
a. Each Compliance Report shall include a detailed description of Alaska
RRC's efforts during the relevant period to comply with the terms and
conditions of this Consent Decree and the Ex Parte Rules. In
addition, each Compliance Report shall include a certification by the
Compliance Officer, as an agent of and on behalf of Alaska RRC,
stating that the Compliance Officer has personal knowledge that Alaska
RRC (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 12 of this
Consent Decree.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such certification and shall comply
with Section 1.16 of the Rules^ and be subscribed to as true under
penalty of perjury in substantially the form set forth in Section
1.16.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Alaska RRC,
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 Alaska RRC 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 Alaska RRC 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, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission, Room 4-C330, 445 12th Street, SW Washington, DC 20554,
with a copy submitted electronically to Theresa Z. Cavanaugh at
Terry.Cavanaugh@fcc.gov, Pamela S. Kane at Pamela.Kane@fcc.gov,
William Kehoe at [3]William.Kehoe@fcc.gov, and Pam Slipakoff at
[4]Pam.Slipakoff@fcc.gov.
14. Voluntary Contribution. Alaska RRC agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
ten thousand dollars ($10,000) within thirty (30) calendar days after
the Effective Date. Alaska RRC shall also send electronic
notification of payment to Theresa Z. Cavanaugh at
Terry.Cavanaugh@fcc.gov, Pamela S. Kane at Pamela.Kane@fcc.gov,
William Kehoe at William.Kehoe@fcc.gov, and Pam Slipakoff at
Pam.Slipakoff@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 regarding the form of
payment :
* 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.
Questions regarding payment procedures should be addressed to the
Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
e-mail, [5]ARINQUIRIES@fcc.gov.
15. Waivers. Alaska RRC 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 the Adopting
Order as defined in this Consent Decree. Alaska RRC 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 Alaska RRC nor the Commission
shall contest the validity of the Consent Decree or the Adopting
Order, and Alaska RRC shall waive any statutory right to a trial de
novo. Alaska RRC hereby agrees to waive any claims it may otherwise
have under the Equal Access to Justice Act,^ relating to the matters
addressed in this Consent Decree.
16. 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.
17. 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 Alaska RRC does not expressly
consent) that provision will be superseded by such Commission rule or
order.
18. Successors and Assigns. Alaska RRC agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
19. 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 Communications Laws.
20. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
21. 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.
8. Authorized Representative. The individual signing this Consent Decree
on behalf of Alaska RRC represents and warrants that he is authorized
by Alaska RRC to execute this Consent Decree and to bind Alaska RRC to
the obligations set forth herein. The FCC signatory represents that
she is signing this Consent Decree in her official capacity and that
she is authorized to execute this Consent Decree.
22. Counterparts. This Consent Decree may be signed in counterpart
(including by facsimile). Each counterpart, when executed and
delivered, shall be an original, and all of the counterparts together
shall constitute one and the same fully executed instrument.
________________________________ P. Michele Ellison Chief Enforcement
Bureau ______________________________ Date
________________________________ William Hupprich General Counsel Alaska
Railroad Corporation ________________________________ Date
^ 47 C.F.R. SS 1.1200-1.1216.
^ 47 U.S.C. S 154(i).
^ 47 C.F.R. SS 0.111, 0.311.
^ 47 C.F.R. SS 1.1200-1.1216.
^ See Letter from Joel Kaufman, Associate General Counsel and Chief,
Administrative Law Division, FCC Office of General Counsel, to Robert
Turney, Alaska Railroad Corporation (Jan. 17, 2012) (OGC Letter).
^ See Amendment of the Commission's Ex Parte Rules and Other Procedural
Matters, Report and Order and Further Notice of Proposed Rulemaking, 25
FCC Rcd 4517 (2011).
^ See id. at 4518.
^ 47 C.F.R. S 1.1206; see 47 C.F.R. S 1.1202 (defining presentation and ex
parte presentation).
^ 47 C.F.R. S 1.1206(b); see 47 C.F.R. S 1.1202 (defining decision-making
personnel).
^ See E-mail from Robert Turney, Telecom Engineer, Alaska Railroad
Corporation, to Richard Arsenault, Chief Counsel, Mobility Division,
Wireless Telecommunications Bureau, Federal Communications Commission
(Nov. 29, 2011, 2:27 p.m. EDT); OGC Letter; see also Rail Safety
Improvement Act of 2008, Pub. L. No. 110-432, S 104(i)(3), 122 Stat. 4848,
4858 (2008) (defining a positive train control system as "a system
designed to prevent train-to-train collisions, over-speed derailments,
incursions into established work zone limits, and the movement of a train
through a switch left in the wrong position").
^ See Wireless Telecommunications Bureau Seeks Comment on Spectrum Needs
for the Implementation of the Positive Train Control Provisions of the
Rail Safety Improvement Act of 2008, WT Docket 11-70, Public Notice, 26
FCC Rcd 6704 (2011).
^ See OGC Letter.
^ See E-mail from Richard Arsenault, Chief Counsel, Mobility Division,
Wireless Telecommunications Bureau, Federal Communications Commission to
Robert Turney, Telecom Engineer, Alaska Railroad Corporation (Dec. 1,
2011, 4:38 p.m.); Email from Richard Arsenault, Chief Counsel, Mobility
Division, Wireless Telecommunications Bureau, Federal Communications
Commission to Robert Turney, Telecom Engineer, Alaska Railroad Corporation
(Dec. 5, 2011, 5:35 p.m.); OGC Letter.
^ See OGC Letter.
^ See id.
^ 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.
^ See 5 U.S.C. S 504; 47 C.F.R. Part 1, Subpart K.
Federal Communications Commission DA 13-131
2
Federal Communications Commission DA 13-131
Federal Communications Commission DA 13-131
8
Federal Communications Commission DA 13-131
References
Visible links
1. mailto:Terry.Cavanaugh@fcc.gov
2. mailto:Pamela.Kane@fcc.gov
3. mailto:William.Kehoe@fcc.gov
4. mailto:Pam.Slipakoff@fcc.gov
5. mailto:ARINQUIRIES@fcc.gov