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Alaska Railroad Corporation Order and Consent Decree

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Released: February 14, 2013

Federal Communications Commission

DA 13-131

Before the

Federal Communications Commission

Washington, DC 20554

In the Matter of
)
File No.: EB-12-IH-0019
)
Alaska Railroad Corporation
)
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.1
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,2 and Sections 0.111 and 0.311 of the Commission’s rules,3 the Consent Decree
attached to this Order

IS ADOPTED.

6.

IT IS FURTHER ORDERED

that the above-captioned investigation

IS

TERMINIATED.



1 47 C.F.R. §§ 1.1200–1.1216.
2 47 U.S.C. § 154(i).
3 47 C.F.R. §§ 0.111, 0.311.

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DA 13-131

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
2

Federal Communications Commission

DA 13-131

Before the

Federal Communications Commission

Washington, DC 20554

In the Matter of
)
File No.: EB-12-IH-0019
)
Alaska Railroad Corporation
)
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.1

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.
§ 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


1 47 C.F.R. §§ 1.1200–1.1216.

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DA 13-131

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 letter2 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,3
which amended and reformed the Rules on ex parte presentations made in the course of
Commission proceedings.4 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.5 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.6
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.7 Mr. Arsenault determined that the e-mail and attachments


2 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).
3 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).
4 See id. at 4518.
5 47 C.F.R. § 1.1206; see 47 C.F.R. § 1.1202 (defining presentation and ex parte presentation).
6 47 C.F.R. § 1.1206(b); see 47 C.F.R. § 1.1202 (defining decision-making personnel).
7 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, § 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”).
2

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DA 13-131

addressed the merits of WT Docket 11-79,8 a permit-but-disclose proceeding in which Mr.
Arsenault was a decision-maker.9 Mr. Arsenault informed the Alaska RRC employee that Alaska
RRC must file his e-mail and attachments in WT Docket No. 11-79.10 Alaska RRC failed to file
the required materials within the specified time period.11 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.12 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,


8 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).
9 See OGC Letter.
10 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.
11 See OGC Letter.
12 See id.
3

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DA 13-131

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
4

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DA 13-131

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 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. 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 Rules13 and be subscribed to as true under penalty of perjury in
substantially the form set forth in Section 1.16.


13 47 C.F.R. § 1.16.
5

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(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 William.Kehoe@fcc.gov, and Pam Slipakoff at
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.14 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 :
Ÿ
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.
Ÿ
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


14 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
6

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DA 13-131

Help Desk by phone, 1-877-480-3201, or by e-mail, 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,15 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.
22.

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.


15 See 5 U.S.C. § 504; 47 C.F.R. Part 1, Subpart K.
7

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23.

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
8

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