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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-07-SE-151
In the Matter of )
NAL/Acct. No. 200832100022
Caprock Cellular Limited Partnership )
FRN: 0001665900
)
ORDER
Adopted: March 13, 2008 Released: March 17, 2008
By the Deputy Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Caprock Cellular Limited
Partnership ("Caprock"). The Consent Decree terminates the Bureau's
investigation into Caprock's compliance with Sections 1.1307, 1.1308,
and 1.1312 of the Commission's Rules ("Rules").
2. The Enforcement Bureau and Caprock have negotiated the terms of a
Consent Decree that would resolve these matters and terminate the
investigation. A copy of the Consent Decree is attached hereto and
incorporated by reference.
3. Based on the record before us, we conclude that no substantial or
material questions of fact exist with respect to this matter as to
whether Caprock possesses the basic qualifications, including those
related to character, to hold or obtain any FCC license or
authorization.
4. After 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.
5. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and the authority delegated by
Sections 0.111 and 0.311 of Rules, the Consent Decree attached to this
Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigatory
proceeding IS TERMINATED.
7. IT IS FURTHER ORDERED that Caprock Cellular Limited Partnership shall
make its voluntary contribution to the United States Treasury, as
specified in the Consent Decree, by mailing a check or similar
instrument payable to the order of the Federal Communications
Commission, to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S.
Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza,
St. Louis, MO 63101. Payment by wire transfer may be made to ABA
Number 021030004, receiving bank TREAS/NYC, and account number
27000001. For payment by credit card, an FCC Form 159 (Remittance
Advice) must be submitted. When completing the FCC Form 159, enter the
NAL/Account number in block number 23A (call sign/other ID), and enter
the letters "FORF" in block number 24A (payment type code).
FEDERAL COMMUNICATIONS COMMISSION
Susan McNeil
Deputy Chief, Enforcement Bureau
CONSENT DECREE
I. INTRODUCTION
The Enforcement Bureau ("Bureau") of the Federal Communications Commission
(the "FCC" or "Commission") and Caprock Cellular Limited Partnership
("Caprock"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
regarding Caprock's compliance with the environmental regulations set
forth in Sections 1.1307, 1.1308, and 1.1312 of the FCC's Rules with
respect to the construction of two wireless communications facilities in
Crosbyton and Lockney, Texas.
II. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended;
b. "Adopting Order" means the Bureau's order adopting the terms and
conditions of this Consent Decree;
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission;
d. "Caprock" means Caprock Cellular Limited Partnership and any
telecommunications carrier subsidiary, successor, or communications
carrier controlled by Caprock Cellular Limited Partnership;
e. "Commission" or "FCC" means the Federal Communications Commission;
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order;
g. "Investigation" means the investigation and any related proceedings
commenced by the Wireless Telecommunications Bureau and the Bureau in May
2007 regarding construction of two communications facilities in Texas with
respect to possible non-compliance by Caprock with the requirements
contained in Sections 1.1307, 1.1308, and 1.1312 of the FCC's Rules;
h. "Parties" means Caprock and the Bureau; and
i. "Rules" means the Commission's regulations set forth in Title 47 of the
Code of Federal Regulations.
III. BACKGROUND
2. Caprock is operated by a general partner, C R Telco, Inc. a wholly
owned subsidiary of Cap Rock Telephone Cooperative, Inc., a rural
company in west Texas. Caprock provides wireless service to
underserved areas of rural Texas. In Lockney, Texas, Caprock is the
only wireless service provider in the area. In Crosbyton, Texas,
Caprock is one of two wireless service providers.
3. In early 2006, Caprock obtained local zoning consent to construct two
communications facilities in Crosbyton (Crosby County) and Lockney
(Floyd County), Texas. Specifically, Caprock constructed a 100-foot
self-supporting tower in Crosbyton, Texas and a 120-foot
self-supporting tower in Lockney, Texas. Caprock began construction on
both the Crosbyton and Lockney towers on March 20, 2006. Construction
of the Crosbyton tower was completed on May 17, 2006 and construction
of the Lockney tower was completed on April 17, 2006.
4. Shortly after the towers were constructed, Caprock realized that the
Section 106 reviews were not fully completed prior to construction.
Caprock immediately contacted Terracon, its environmental consultant,
to conduct archeological studies and complete environmental reviews
for both towers. Terracon assisted Caprock in filing an FCC Form 620,
the "New Tower Submission Packet," for each of the two facilities with
the Texas Historical Commission, the state agency employing the State
Historic Preservation Officer ("SHPO"). Terracon also contacted the
Crosby County Pioneer Museum regarding the subject facilities and
notified federally recognized Indian tribes.
5. With Terracon's assistance, Caprock completed full environmental
reviews, including Section 106 reviews of the sites and concluded that
the sites have no direct effect on historic properties and no adverse
effects on historic properties in the area of potential effects for
visual effects. In addition, Caprock performed archeological surveys
for both sites, which indicated that no cultural resources were
observed during construction or damaged by construction activities at
either the Crosbyton or Lockney tower sites. Caprock also completed
the tribal participation process under the FCC's Nationwide
Programmatic Agreement. No federally recognized Indian tribe indicated
an interest in the subject towers.
6. In response to Caprock's FCC Forms 620, the Texas SHPO replied by
separate letters dated March 21, 2007, stating that it was foreclosed
from reviewing the constructed towers. On April 24, 2007, Caprock sent
a letter to the FCC disclosing that it had constructed two
communications facilities prior to the completion of the Section 106
review and requesting that the FCC initiate consultation with the
Texas SHPO to resolve the instant case. The FCC's Wireless
Telecommunications Bureau has reviewed Caprock's Forms 620 and
supporting documentation, and concurs that the towers do not have an
adverse effect on historic properties.
IV. TERMS OF AGREEMENT
7. Caprock agrees that the Bureau has jurisdiction over it and the
subject matter contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
8. 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.
9. The Parties agree that this Consent Decree shall constitute a final
settlement of the Investigation. In express reliance on the covenants
and representations contained herein and to avoid the further
expenditure of scarce public resources, the Bureau agrees to terminate
the Investigation. In consideration for the termination of these
matters and in accordance with the terms of this Consent Decree,
Caprock agrees to the terms, conditions, and procedures contained
herein.
10. The Parties agree that this Consent Decree shall become binding on the
Parties on the Effective Date. Upon release, the Adopting Order and
this Consent Decree shall have the same force and effect as any other
final order of the Commission and any violation of the terms or
conditions of this Consent Decree shall constitute a violation of a
Commission order.
11. The Parties 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 by Caprock
with the requirements of the Act or the Commission's Rules or orders.
The Parties agree that this Consent Decree is for settlement purposes
only, and that by agreeing to this Consent Decree, Caprock does not
admit or deny any noncompliance, violation, or liability associated
with or arising from its actions or omissions involving the Act or the
Rules which are the subject of this Consent Decree.
12. Caprock agrees that it will make a voluntary contribution to the
United States Treasury in the amount of five thousand five hundred dollars
($5,500.00) for each tower, for a total of eleven thousand dollars
($11,000.00). The payment will be made within 30 days after the Effective
Date of the Adopting Order. The payment must be made by check or similar
instrument, payable to the order of the Federal Communications Commission.
The payment must include the NAL/Account Number and FRN Number referenced
in the caption to the Adopting Order. Payment by check or money order may
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis,
MO 63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted. When
completing the FCC Form 159, enter the NAL/Account number in block number
23A (call sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code).
13. To resolve and terminate the Investigation, and to ensure compliance
with the FCC's environmental rules, Caprock also agrees to the
following conditions.
a. Caprock will implement on a company wide basis detailed procedures to
ensure environmental compliance. These procedures may be altered from time
to time if Caprock determines that other procedures may better enable it
to comply with the FCC environmental requirements. Caprock shall notify
the Bureau and the Wireless Telecommunications Bureau in writing regarding
such modifications at least 25 calendar days before they take effect and
either the Bureau or the Wireless Telecommunications Bureau may disapprove
such modification within 25 calendar days of their receipt of Caprock's
notification.
b. Caprock has recently commissioned and made part of its internal
procedures "A Scope of Work For Compliance With the FCC's Environmental
Rules" manual. The "Scope of Work" manual describes the FCC's
environmental requirements and the federal laws and policies that are
cited in or related to the FCC's environmental rules. It also spells out
in detail the responsibilities for environmental compliance of Caprock's
outside consultants dealing with tower construction and those employees
within Caprock who supervise the consultants and the methods by which
environmental compliance will be assured at each stage of the tower
construction process. Attached to the "Scope of Work" manual are
"checklists" by which responsible Caprock employees may track
environmental compliance for each new and collocated tower.
c. Caprock will provide annual training to its employees responsible for
environmental compliance to ensure that they are aware of their
responsibilities to ensure compliance with environmental requirements by
Caprock. Caprock will oversee any consultant it may employ to ensure
compliance with the environmental requirements.
d. Caprock has recently appointed an experienced Regulatory Compliance
Manager, who is thoroughly familiar with the FCC's environmental
requirements. He will monitor and supervise Caprock's regulatory
compliance efforts.
e. Caprock will submit reports, on an annual basis, to the Enforcement
Bureau and the Wireless Telecommunications Bureau identifying all of
Caprock's Section 106 reviews that were active during the reporting
period. For each such Section 106 review, Caprock will specify the dates
of any FCC Form 620 submission to the State Historic Preservation Officer
and notification to tribes, local government and the public, as well as
the resolution or current status of the review.
14. The Bureau agrees that, in the absence of new material evidence, it
will not institute, on its own motion or in response to third-party
objection, any new proceeding, formal or informal, or take any action
on its own motion against Caprock for possible past violations of the
environmental regulations in Part 1 of the Rules 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, or recommend to the
Commission, any new proceeding, formal or informal, or to take any
action on its own motion, against Caprock concerning the matters that
were the subject of the Investigation. The Bureau further 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, or
recommend to the Commission, any proceeding, formal or informal, or
take any action on its own motion, against Caprock with respect to its
basic qualifications, including its character qualifications, to be a
Commission licensee. Nothing in this Consent Decree shall prevent the
Commission from instituting investigations or enforcement proceedings
against Caprock in the event of any other alleged misconduct that
violates this Consent Decree or that violates any provision of the Act
or Rules.
15. The Parties agree that each is required to comply with each individual
condition of this Consent Decree. Each specific condition is a
separate condition of the Consent Decree as approved. To the extent
that Caprock fails to satisfy any condition, in the absence of
Commission alteration of the condition, it will be deemed noncompliant
and may be subject to possible future enforcement action with respect
to such failure to satisfy the condition.
16. 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 Order adopts this Consent Decree without
change, addition, or modification.
17. The Parties agree that the effectiveness of this Consent Decree is
expressly contingent upon the issuance of the Adopting Order, provided
the Adopting Order adopts the Consent Decree without change, addition
or modification.
18. The Parties agree that if either Party (or the United States on behalf
of the Commission) brings a judicial action to enforce the terms of
the Order adopting this Consent Decree, neither Caprock nor the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and Caprock and the Commission will waive any
statutory right to a trial de novo regarding the terms or validity of
the Consent Decree. Caprock, however, may present evidence that it has
not violated the Consent Decree.
19. Caprock agrees that any material violation of any term 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. 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 consent), that provision will be superseded by such
Commission rule or order.
20. This Consent Decree cannot be modified without the advance written
consent of both Parties.
21. In the event this Consent Decree is rendered invalid by a court of
competent jurisdiction, it shall become null and void and may not be
used in any manner, in any legal proceeding.
22. The Parties agree that the requirements of this Consent Decree shall
expire two (2) years after the Effective Date.
23. The Consent Decree may be signed in counterparts.
For Caprock Cellular Limited Partnership:
___________ _________________________
Date Jim Whitefield
Chief Executive Officer
For the Enforcement Bureau:
___________ _________________________
Date Susan McNeil
Deputy Chief, Enforcement Bureau
47 C.F.R.. S:S: 1.1307, 1.1308, and 1.1312.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111 and 0.311.
47 C.F.R. S:S: 1.1307, 1.1308, and 1.1312.
Section 106 of the National Historic Preservation Act ("NHPA"), 16 U.S.C.
S: 470f, requires a federal agency to 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. In considering such effects, the NHPA requires a federal agency
to consider the views of expert agencies. Specifically, the NHPA requires
the federal agency to consider the views of the Advisory Council on
Historic Preservation, the agency tasked with the responsibility for
implementing the NHPA, the appropriate State Historic Preservation
Officer, and, if affected historic properties are of religious or cultural
significance to Indian tribes or Native Hawaiian organizations, their
representatives. See 16 U.S.C. S:S: 470a(a)(3), (d)(6)(B), 470f, 470i.
Consistent with the Advisory Council's regulations, the Commission's
environmental rules delegate the task of identification and consideration
of the effects that proposed facilities may have on historic properties to
its licensees, permittees and applicants, but the Commission remains
ultimately responsible. See 47 C.F.R. S: 1.1307(a)(4); see also 36 C.F.R.
S: 800.2(a)(3); Nationwide Programmatic Agreement Regarding the Section
106 National Historic Preservation Act Review Process, Report and Order,
20 FCC Rcd 1073 (2004), at 1076-77; clarified, 20 FCC Rcd 17995 (2005),
aff'd, CTIA-The Wireless Ass'n. v. FCC, No. 05-1008 (D.C. Cir. September
26, 2006).
47 C.F.R. Part1, Appendix C, Section IV.
Letters from F. Lawerence Oaks, Texas State Historic Preservation Officer
to David Martin and Julio Aguilar, Terracon (March 21, 2007) (denying
Caprock's request for review of its Crosbyton and Lockney tower sites).
Letter from Marjorie Spivak and Rebecca Murphy, Bennet & Bennet, PLLC to
Dan Abeyta, Assistant Chief, NEPA Adjudications (April 24, 2007)
(notifying the FCC of Caprock's failure to complete the Section 106 review
process).
Federal Communications Commission DA 08-561
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Federal Communications Commission DA 08-561