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Towerstream Corporation Enters Into Consent Decree With FCC

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Released: June 3, 2013

Federal Communications Commission

DA 13-1114

Before the

Federal Communications Commission

Washington, DC 20554

In the Matter of
)
File Nos.: EB-12-IH-0909
)
EB-FIELDSCR-12-00004030
)

TOWERSTREAM CORPORATION

)
Acct. No.: 201232600017
)
Licensee of Various Authorizations in the
)
FRN: 0007097355
Wireless Radio Service
)
0015467749

ORDER

Adopted: May 31, 2013


Released: June 3, 2013

By the Chief, Enforcement Bureau:
1.
In this Order, we adopt a Consent Decree entered into between the Enforcement Bureau
(Bureau) and Towerstream Corporation (Towerstream). The Consent Decree terminates an investigation
by the Bureau’s Investigations & Hearings Division of Towerstream for possible violations of Section
310(d) of the Communications Act of 1934, as amended (Act), and Sections 1.948, 1.17, and 25.102(a) of
the Commission’s rules (Rules).1 The Consent Decree also terminates an investigation by the Bureau’s
Miami Field Office (Field Office) and cancels a related Notice of Apparent Liability for Forfeiture
(NAL)2 against Towerstream for possible violations of Section 301 of the Act, and Section 25.102(a) of the
Rules.3
2.
A copy of the Consent Decree negotiated by the Bureau and Towerstream is attached
hereto and incorporated herein by reference.
3.
After reviewing the terms of the Consent Decree, we find that the public interest would
be served by adopting the Consent Decree, terminating the investigations, and cancelling the NAL.
4.
In the absence of material new evidence relating to this matter, we conclude that our
investigations raise no substantial or material questions of fact as to whether Towerstream 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 Act,4
and Sections 0.111 and 0.311 of the Rules,5 the Consent Decree attached to this Order

IS ADOPTED

.
6.

IT IS FURTHER ORDERED

that the above-captioned investigations

ARE

TERMINATED.



1 47 U.S.C. § 310(d); 47 C.F.R. §§ 1.948, 1.17, 25.102(a).
2 Towerstream Corporation, Licensee of Fixed Earth Stations KA407 and KA412, Miami, Florida, Notice of
Apparent Liability for Forfeiture, 27 FCC Rcd 11251 (Miami Office, 2012).
3 47 U.S.C. § 301; 47 C.F.R. § 25.102(a).
4 47 U.S.C. §§ 154(i), 503(b).
5 47 C.F.R. §§ 0.111, 0.311.

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DA 13-1114

7.

IT IS FURTHER ORDERED

that Towerstream Corporation, Licensee of Fixed Earth
Stations KA407 and KA412, Miami, Florida, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd
11251 (Miami Office, 2012),

IS CANCELLED

.
8.

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

Jeffrey M. Thompson, CEO,
Towerstream Corporation, 55 Hammarlund Way, Middleton, RI 02842.

FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
2

Federal Communications Commission

DA 13-1114

Before the

Federal Communications Commission

Washington, DC 20554

In the Matter of
)
File Nos.: EB-12-IH-0909
)
EB-FIELDSCR-12-00004030
)

TOWERSTREAM CORPORATION

)
Acct. No.: 201232600017
)
Licensee of Various Authorizations in the
)
FRN: 0007097355
Wireless Radio Service
)
0015467749

CONSENT DECREE

1. The Enforcement Bureau of the Federal Communications Commission (Bureau) and
Towerstream Corporation (Towerstream), by their authorized representatives, hereby enter into this
Consent Decree for the purposes of: (a) terminating the investigation by the Bureau’s Investigations &
Hearings Division into whether Towerstream violated Section 310(d) of the Communications Act of
1934, as amended (Act), and Sections 1.948, 1.17, and 25.102(a) of the Commission’s rules (Rules),
relating to the transfer of control and/or assignment of Commission authorizations;1 (b) terminating the
investigation by the Bureau’s Miami Field Office (Field Office) into whether Towerstream violated
Section 301 of the Act2 and Section 25.102(a) of the Rules,3 relating to operation of a fixed earth station
without Commission authorization; and (c) canceling Towerstream Corporation, Licensee of Fixed Earth
Stations KA407 and KA412, Miami, Florida
, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd
11251 (Miami Office, 2012), arising from the Field Office’s investigation of Towerstream.

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)
“Bureau” means the Enforcement Bureau of the Federal Communications
Commission.
(d) “Commission” and “FCC” mean the Federal Communications Commission and all
of its bureaus and offices.


1 47 U.S.C. § 310(d); 47 C.F.R. §§ 1.948, 1.17, 25.102(a).
2 47 U.S.C. § 301.
3 47 C.F.R. § 25.102(a).

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DA 13-1114

(e) “Communications Laws” means collectively, the Act, the Rules, and the published
and promulgated orders and decisions of the Commission to which Towerstream is
subject by virtue of its business activities.
(f) “Compliance Plan” means the plan described in this Consent Decree at paragraph
16.
(g) “Covered Employees” means all employees and agents of Towerstream who perform,
or supervise, oversee, or manage the performance of, duties that relate to
Towerstream’s responsibilities under the Communications Laws, including Sections
301 and 310(d) of the Act, and Sections 1.948, 1.17, and 25.102(a) of the Rules.
(h) “Effective Date” means the date on which the Bureau releases the Adopting Order.
(i) “Investigations” means the investigations commenced by the Bureau’s Investigations
& Hearings Division in File Nos. EB-12-IH-0909 and by the Bureau’s Miami Field
Office in EB-FIELDSCR-12-00004030, regarding the Company’s possible
violations of Sections 301 and 310(d) of the Communications Act of 1934, as
amended, and Sections 1.948, 1.17, and 25.102(a) of the Commission’s rules.
(j) “NAL” means Towerstream Corporation, Licensee of Fixed Earth Stations KA407
and KA412, Miami, Florida, Notice of Apparent Liability for Forfeiture, 27 FCC
Rcd 11251 (Miami Office, 2012).
(k) “Operating Procedures” means the standard, internal operating procedures and
compliance policies established by Towerstream to implement the Compliance Plan.
(l) “Parties” means Towerstream and the Bureau, each of which is a “Party.”
(m) “Rules” means the Commission’s regulations found in Title 47 of the Code of
Federal Regulations.
(n) “Towerstream” or “Company” means Towerstream Corporation, including all of
Towerstream’s subsidiaries and affiliates, and its predecessors-in-interest and
successors-in-interest.

II.

BACKGROUND

3.
Section 310(d) of the Act states, “[n]o construction permit or station license, or any rights
thereunder, shall be transferred, assigned, or disposed of in any manner, voluntarily or involuntarily,
directly or indirectly, or by transfer of control of any corporation holding such permit or license, to any
person except upon application to the Commission and upon finding by the Commission that the public
interest, convenience, and necessity will be served thereby.”4 Section 1.948 of the Rules similarly
requires Commission consent prior to a transfer of control or assignment of license.5
4.
Section 301 of the Act states that no person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio within the United States, except under and in


4 47 U.S.C. § 310(d).
5 47 C.F.R. § 1.948.
2

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accordance with the Act and with a license granted under the provisions of the Act.6 Section 25.102(a) of
the Rules similarly requires that “[n]o person shall use or operate apparatus for the transmission of energy or
communications or signals by space or earth stations except under, and in accordance with, an appropriate
authorization granted by the Federal Communications Commission.”7
5.
Section 1.17 of the Rules states that no person may provide, in any written statement of
fact, “material factual information that is incorrect or omit material information that is necessary to
prevent any material factual statement that is made from being incorrect or misleading without a
reasonable basis for believing that any such material factual statement is correct and not misleading.”8 In
2003, the Commission expanded the scope of Section 1.17 of the Rules to include written statements that
are made without a reasonable basis for believing the statement is correct and not misleading.9 The
Commission explained that this requirement was intended to more clearly articulate the obligations of
persons dealing with the Commission, ensure that they exercise due diligence in preparing written
submissions, and enhance the effectiveness of the Commission’s enforcement efforts.10 Thus, even in the
absence of an intent to deceive, a false statement provided without a reasonable basis for believing that
the statement is correct and not misleading constitutes an actionable violation of Section 1.17 of the
Rules.11
6.
Towerstream is a publicly traded company that is listed on the New York Stock
Exchange, incorporated in Delaware, and based in Providence, Rhode Island.12 Towerstream states that it
is a “competitive entrant in the wireless broadband market.”13 Towerstream also states that it provides
“affordable and competitive wireless 4G high-speed Internet access to business customers in a number of
major markets, including: Providence, New York City, Boston, Los Angeles, Chicago, the San Francisco
Bay Area, Miami, Seattle, Dallas/Fort Worth, Philadelphia, Nashville, and Las Vegas/Reno.14
7.
On January 12, 2012, Towerstream filed an application for Commission consent to the
transfer of control of 16 authorizations from Color Broadband Communications Inc. (Color Broadband)
to Towerstream. The 16 authorizations consisted of 15 Common Carrier Fixed Point-to-Point Microwave
authorizations and one authorization to operate in the 3650-3700 MHz band.15 Question No. 7(a) of the


6 47 U.S.C. § 301.
7 47 C.F.R. § 25.102(a).
8 47 C.F.R. § 1.17(a)(2).
9 See Amendment of Section 1.17 of the Commission’s Rules Concerning Truthful Statements to the Commission,
Report and Order, 18 FCC Rcd 4016, 4021 (2003), recon. denied, Memorandum Opinion and Order, 19 FCC Rcd
5790, further recon. denied, Memorandum Opinion and Order, 20 FCC Rcd 1250 (2004) (Amendment of Section
1.17).
10 Id.
11 See id. at 4017 (stating that the revision to Section 1.17 of the Rules is intended to “prohibit incorrect statements
of omissions that are the results of negligence, as well as an intent to deceive”).
12 See Letter from Donald L. Herman, Jr., Gregory W. Whiteaker and Susan C. Goldhar Ornstein, Counsel for
Towerstream Corporation., to Marlene H. Dortch, Secretary, Federal Communications Commission, at 22 (Sept. 20,
2012) (LOI Response).
13 Id.
14 Id.
15 See Form 603, File No. 0005027045 (filed Jan. 12, 2012) (Jan. 12, 2012 Transfer of Control Application).
Towerstream also requested consent for the assignment of two pending applications (ULS File Nos. 0005022364
and 0005022365) for Common Carrier Fixed Point-to-Point Microwave authorizations previously filed by Color
Broadband Communications, Inc.
3

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application inquired whether the parties had already consummated the transaction referenced therein.
Despite the fact that Towerstream had previously completed the acquisition of substantially all of the
assets of Color Broadband on December 2, 2011, and issued a press release to that effect, Towerstream
answered “No” in response to Question No. 7(a).16
8.
In July 2012, the Commission’s Wireless Telecommunications Bureau, which was
responsible for processing Towerstream’s application, referred this matter to the Bureau’s Investigations
& Hearings Division (IHD) for possible enforcement action. IHD promptly commenced an investigation
by directing a letter of inquiry (LOI) to Towerstream.17 In its response, Towerstream stated that it had,
since April 2010, consummated three additional corporate transactions involving transfers of control or
assignments of licenses prior to obtaining Commission consent.18
9.
During the course of our investigation, the Field Office was concurrently investigating
Towerstream for other possible violations. On September 26, 2012, the Field Office released the NAL
concluding that Towerstream had operated a fixed earth station in Miami, Florida without Commission
authorization, in apparent willful and repeated violation of Section 301 of the Act and Section 25.102(a)
of the Rules. The NAL proposed a forfeiture of $15,000 against Towerstream.
10.
In light of Towerstream’s response to the LOI and the outstanding NAL, the parties
entered into negotiations to resolve the various matters under investigation.

III.

TERMS OF AGREEMENT

11.

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.
12.

Jurisdiction.

Towerstream 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.
13.

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.
14.

Termination of Investigations.

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 Investigations and cancel the NAL. In consideration for the termination of the Investigations





16 Towerstream subsequently filed an application for Commission consent to the assignment of licenses from Color
Broadband to Towerstream and let the transfer of control application expire. See Jan. 12, 2012 Transfer of Control
Application; Form 603, File No. 0005175767 (filed May 1, 2012) (May 1, 2012 Assignment Application). In the
assignment application, Towerstream appropriately represented in response to Question No. 7(a), that the transaction
had already occurred.
17 See Letter from Gary Schonman, Special Counsel, Investigations & Hearings Division, Enforcement Bureau,
Federal Communications Commission to Arthur G. Giftakis, VP Engineering and Operations, Towerstream,
Corporation, (Aug. 21, 2012) (LOI).
18 See LOI Response at 7-8, http://ir.towerstream.com/releasedetail.cfm?ReleaseID=460646,
http://ir.towerstream.com/releasedetail.cfm?ReleaseID=537426,
http://ir.towerstream.com/releasedetail.cfm?ReleaseID=579210. See also ULS File Nos. 0004235067, 0004544254,
0004773922.
4

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and cancellation of the NAL, Towerstream 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 Investigations 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 Towerstream concerning the matters that were the subject of the Investigations. The
Bureau also agrees that in the absence of new material evidence it will not use the facts developed in the
Investigations 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 Towerstream
with respect to Towerstream’s basic qualifications, including its character qualifications, to be a
Commission licensee or hold Commission licenses or authorizations.
15.

Compliance Officer.

Within sixty (60) calendar days after the Effective Date,
Towerstream 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 Towerstream 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 Sections 301 and 310(d) of Act and Sections 1.948, 1.17, and
25.102(a) of the Rules prior to assuming his/her duties.
16.

Compliance Plan.

For purposes of settling the matters set forth herein, Towerstream
agrees that it shall, within ninety (90) calendar days after the Effective Date, develop and implement a
Compliance Plan designed to ensure future compliance with the Communications Laws, including
Sections 301 and 310(d) of Act and Sections 1.948, 1.17, and 25.102(a) of the Rules, and with the terms
and conditions of this Consent Decree. The Compliance Plan shall implement the following procedures:
(a)

Operating Procedures.

Within ninety (90) calendar days after the Effective Date,
Towerstream shall establish Operating Procedures that all Covered Employees shall
follow to help ensure Towerstream’s compliance with the Commission’s Rules. The
Compliance Manual shall explain the Communications Laws that apply to
Towerstream, including Section 1.65 of the Rules, and set forth the Operating
Procedures that Covered Employees shall follow to help ensure Towerstream’s
compliance with Sections 1.948, 1.17, and 25.102(a) of the Rules. Towerstream
shall also develop a Compliance Checklist that describes the steps that a Covered
Employee must follow to ensure compliance with Sections 301 and 310(d) of Act
and Sections 1.948, 1.17, and 25.102(a) of the Rules.
(b)

Compliance Manual.

Within ninety (90) 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 Towerstream, including Sections 301 and 310(d) of Act and
Sections 1.948, 1.17, and 25.102(a) of the Rules, and set forth the Operating
Procedures that Covered Employees shall follow to help ensure Towerstream’s
compliance with Sections 301 and 310(d) of Act and Sections 1.948, 1.17, and
25.102(a) of the Rules. Towerstream shall periodically review and revise the
Compliance Manual as necessary to ensure that the information set forth therein
remains current and accurate. Towerstream shall distribute any revisions to the
Compliance Manual promptly to Covered Employees. The Compliance Manual
shall require personnel, including Covered Employees, to contact Towerstream’s
Compliance Officer and, if appropriate, regulatory legal counsel with any questions
5

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or concerns that arise with respect to Towerstream’s obligations under Sections 301
and 310(d) of Act and Sections 1.948, 1.17, and 25.102(a) of the Rules.
(c)

Compliance Training Program.

Towerstream shall establish and implement a
Compliance Training Program on compliance with the Communications Laws,
including Sections 301 and 310(d) of Act and Sections 1.948, 1.17, and 25.102(a) of
the Rules, and the Operating Procedures. As part of the Compliance Training
Program, Covered Employees shall be advised of Towerstream’s obligation to report
any noncompliance with Sections 301 and 310(d) of Act and Sections 1.948, 1.17,
and 25.102(a) of the Rules under paragraph 17 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.
Towerstream 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.
17.

Reporting Noncompliance.

Towerstream shall report any noncompliance with Sections
301 and 310(d) of Act and Sections 1.948, 1.17, and 25.102(a) of the 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 Towerstream 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 Towerstream has taken or will take to
prevent the recurrence of any such noncompliance. All reports of noncompliance shall be submitted to
the Chief, Investigations & 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, Gary Schonman at
Gary.Schonman@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.
18.

Compliance Reports.

Towerstream 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 Towerstream’s
efforts during the relevant period to comply with the terms and conditions of this
Consent Decree and Sections 301 and 310(d) of Act and Sections 1.948, 1.17, and
25.102(a) of the Rules. In addition, each Compliance Report shall include a
certification by the Compliance Officer, as an agent of and on behalf of
Towerstream, stating that the Compliance Officer has personal knowledge that
Towerstream (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 17 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
6

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Rules19 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 Towerstream, 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 Towerstream 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 Towerstream 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 & 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, Gary
Schonman at Gary.Schonman.fcc.gov, and to Pam Slipakoff at
Pam.Slipakoff@fcc.gov.
19.

Termination Date

. Unless stated otherwise, the requirements set forth in paragraphs 15
through 18 of this Consent Decree shall expire thirty-six (36) months after the Effective Date
20.

Voluntary Contribution.

Towerstream agrees that it will make a voluntary contribution
to the United States Treasury in the amount seventy thousand dollars ($70,000) within thirty (30) calendar
days after the Effective Date. Towerstream shall also send electronic notification of payment to Theresa
Z. Cavanaugh at Terry.Cavanaugh@fcc.gov, Gary Schonman at Gary.Schonman@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.20 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.
Ÿ
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 –


19 47 C.F.R. § 1.16.
20 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
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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, ARINQUIRIES@fcc.gov.
21.

Waivers.

Towerstream 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. Towerstream 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 Towerstream nor
the Commission shall contest the validity of the Consent Decree or the Adopting Order, and Towerstream
shall waive any statutory right to a trial de novo. Towerstream hereby agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act,21 relating to the matters addressed in this Consent
Decree.
22.

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.
23.

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 Towerstream does not expressly
consent) that provision will be superseded by such Commission rule or order.
24.

Successors and Assigns.

Towerstream agrees that the provisions of this Consent Decree
shall be binding on its successors, assigns, and transferees.
25.

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. The Parties also
agree that this Consent Decree does not constitute an admission of liability by Towerstream or a
concession by the Commission that its investigation was not well-founded.
26.

Modifications.

This Consent Decree cannot be modified without the advance written
consent of both Parties.
27.

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.


21 See 5 U.S.C. § 504; 47 C.F.R. Part 1, Subpart K.
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28.

Authorized Representative.

The individual signing this Consent Decree on behalf of
Towerstream represents and warrants that he is authorized by Towerstream to execute this Consent
Decree and to bind Towerstream 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.
29.

Counterparts.

This Consent Decree may be signed in counterpart and may be delivered
by facsimile or electronic delivery. 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
________________________________
Jeffrey M. Thompson
CEO
Towerstream Corporation
________________________________
Date
9

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