**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. EB-02-TS-659        |
|                                  | *) |                              |
| Western Wireless Corporation     | ** | NAL/Acct. No. 200332100004   |
|                                  |    |                              |
| and                              | *  | FRN 0003764719               |
|                                  | *) |                              |
| WWC Holding Co., Inc.,           | ** |                              |
|                                  |    |                              |
| Licensee of Cellular Radio       | *  |                              |
| Station KNKN343,                 | *) |                              |
|                                  | ** |                              |
| CMA583 -- North Dakota 4 --      |    |                              |
|                                  | *  |                              |
| McKenzie RSA                     | *) |                              |
|                                  | ** |                              |
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|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: May 6, 2003 Released: May 12, 2003**

By the Commission: Chairman Powell issuing a separate statement.

I.  **INTRODUCTION**

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1.  In this *Notice of Apparent Liability for Forfeiture* ("*NAL*"), we
    find that Western Wireless Corporation and its wholly owned
    subsidiary, WWC Holding Co., Inc. ("WWC"), cellular radio licensee
    in CMA583 North Dakota 4 -- McKenzie RSA (collectively "Western"),
    apparently willfully and repeatedly violated Section 301 of the
    Communications Act of 1934, as amended ("Act"),[^1] by operating
    radio transmitting equipment from an unauthorized location in
    Medora, North Dakota ("Medora Site" or "Medora Tower").
    Specifically, Western unlawfully constructed and continues to
    operate a facility that has a significant environmental effect
    without obtaining Commission authorization following preparation of
    an Environmental Impact Statement ("EIS").[^2] We conclude, pursuant
    to Section 503(b) of the Act, that Western is apparently liable for
    a forfeiture in the amount of two hundred thousand dollars
    (\$200,000).[^3]

2.  Western's unlawful operation here stems from its failure to comply
    with the Commission's environmental rules. Continued unlawful
    operation may result in additional enforcement action, e.g.,
    increased forfeitures, initiation of a license revocation
    proceeding, or both. In this regard, we order Western to provide a
    sworn statement within 30 days regarding its plan to cease operation
    from the Medora Site or bring that site into compliance with our
    environmental rules. We also remind Western of its obligation to
    file an Environmental Assessment ("EA") if any of its actions in
    response to this NAL or subsequent orders may have a significant
    effect on the environment.

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II. **BACKGROUND**

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3.  Under the Commission's rules implementing the National Environmental
    Policy Act of 1969, as amended, ("NEPA"),[^4] licensees are required
    to assess proposed facilities to determine whether the facilities
    may significantly affect the environment as defined in Section
    1.1307 of the Commission's Rules ("Rules").[^5] The rules provide
    that licensees must prepare and submit to the Commission an EA for
    an action that may have a significant environmental effect.[^6] This
    includes actions for which no pre-construction authorization is
    otherwise required.[^7] In light of the Commission's obligations
    under the National Historic Preservation Act of 1966, as amended
    ("NHPA"),[^8] Section 1.1307(a)(4) of the Rules requires that a
    licensee must prepare and submit to the Commission an EA if a
    planned facility may affect one or more properties listed, or
    eligible for listing, in the National Register of Historic Places
    ("NRHP") ("Historic Properties").[^9] If the Commission finds after
    submission of an EA that a proposed action will not have a
    significant environmental effect, it will issue a finding of no
    significant impact ("FONSI") and process the application.[^10] If a
    proposed action will have a significant environmental effect and the
    applicant does not choose to amend its application,[^11] the
    Commission will not grant the application unless the Commission
    first completes an EIS.[^12]

4.  In August 1999, Western constructed a 180-foot monopole tower on a
    bluff overlooking Medora, North Dakota, for use by WWC in connection
    with its operation of Station KNKN343 in CMA583 - North Dakota 4 --
    McKenzie. In November 1999, the State Historical Society of North
    Dakota ("Historical Society"), which is the State Historic
    Preservation Officer ("SHPO") for North Dakota, submitted a letter
    to the Wireless Telecommunications Bureau ("WTB") regarding the
    tower.[^13] The letter states that Western's tower adversely affects
    properties which are listed in the National Register of Historic
    Places and/or the State Register of Historic Places.[^14] The letter
    indicates that the tower affects the following nearby properties
    through a visual intrusion into their setting: the Chateau de Mores
    State Historic Site, the de Mores Packing Plant State Historic Site,
    the Theodore Roosevelt Maltese Cross Cabin, the Peaceful Valley
    Ranch, and various other historic properties in and around Medora.
    Several of the Historic Properties are within one quarter mile of
    the tower[^15] and the tower is in open view from all of these
    sites.[^16]

5.  In December 1999, WTB informed Western Wireless that Western's tower
    "may have an adverse effect on historic properties . . . ."[^17] The
    Bureau also informed Western that "until the requirements of the
    Commission's environmental rules are met, "construction *and
    operation"* of the facilities "may be in violation of the
    Commission's environmental rules" and "\[a\] company violating these
    rules may be subject to forfeitures . . . ."[^18] The Bureau also
    directed Western to meet with the SHPO.

6.  Western continued to operate at the site. For several years, WTB
    worked with Western and the Historical Society to attempt to resolve
    the matter informally. These efforts having proved unsuccessful, WTB
    referred the matter to the Enforcement Bureau ("EB") for possible
    enforcement action.[^19] On October 17, 2002, EB sent a letter of
    inquiry ("LOI") to Western, requesting information concerning
    Western's efforts to assess whether the tower might have a
    significant effect on the environment and why it did not submit an
    EA and undergo environmental review prior to constructing the
    tower.[^20] Western submitted a response to the LOI on November 1,
    2002.[^21] In its response to the LOI, Western states that it
    complied in good faith with the Commission's rules prior to
    constructing its tower. Western claims that it is now able to
    provide "high-quality" cellular service to Medora and portions of
    I-94 adjacent to Medora. Western argues that prior to construction
    of the tower, the Governor of North Dakota requested that Western
    provide cellular service in Medora for the Western States Governors'
    Conference. According to Western, the lack of cellular coverage
    highlighted the need for cellular service in Medora, and with the
    support of the Mayor of Medora, it sought ways to improve cellular
    coverage in the area. Prior to the submission of a permit
    application for the current tower, argues Western, it worked with
    the City and consulted with the National Park Service to develop a
    set of three alternative sites for a possible tower. Western
    contends that the City selected the third alternative, which is the
    current location, and that this land was made available by the
    Theodore Roosevelt Medora Foundation, a local historic preservation
    group. Western indicates also that the City selected the tower
    location as the alternative farthest from any historic properties
    without being located within the national park, and that according
    to Western's engineer, the nearest historic site to the tower is
    approximately ¼ mile away. Western states that it submitted a "City
    of Historic Medora Zoning -- Development Permit and Application
    Form" ("Application") for consideration by the City Council
    proposing a cellular communications facility. Western also indicates
    that it submitted a scale drawing of the tower and tower site with
    its application.

7.  Western claims that in reviewing zoning applications such as
    Western's, the City Council is charged with examining the possible
    effects of any proposed construction upon the historical integrity
    of the City. Western states that, under the City's Zoning Articles,
    the City Council is directed "to regulate all facets of construction
    to preserve the historical integrity of the City of Medora," and "to
    prevent structures which detract from the aesthetic harmony, style,
    form, color, proportion, texture or materials of the district."[^22]
    Further, Western claims that the Zoning Articles state that "\[i\]n
    order to protect the City's historical integrity, the entire City
    and the areas under its zoning jurisdiction are hereby zoned as a
    Historical Integrity District."[^23] Western states that this
    includes the site where it constructed its tower. Western indicates
    that its zoning application was placed on public notice, the
    community was given five days in which to file comments against the
    proposed tower construction, and no comments were received. Western
    states that subsequently, the Zoning Board unanimously approved its
    application on June 1, 1999.

8.  Western asserts that it applies the criteria set forth in the
    Commission's rules to determine whether a proposed action may have a
    significant effect on the environment. Western also states that one
    of these criteria states that an EA is required if a proposed
    facility "'may affect' a historical property of national
    significance."[^24] Western adds that although the rule does not
    explicitly prescribe how licensees must make this assessment, a note
    following the rules suggests that "inquiries *also may be made* to
    the appropriate State Historic Preservation Officer," and thus such
    inquiry is one option available to licensees.[^25] Western contends
    that in light of the foregoing, and particularly the city's review
    and approval, it believed the tower to be categorically excluded
    from FCC environmental processing on historic preservation
    grounds.[^26] Western states that after its tower was constructed,
    it learned that the Historical Society had raised concerns with the
    Commission regarding the effect of the tower on properties listed or
    eligible for listing in the NRHP. Western claims that when it became
    aware of such concerns it undertook an extensive effort to obtain
    public comment and offered various mitigation measures, but that
    none of these proposals has been satisfactory to all parties.
    Western also states that it remains willing to prepare an EA upon
    Commission request.[^27]

9.  On January 14, 2003, the Enforcement Bureau sent a second LOI to
    Western, requesting it to explain under what authority it believes
    it may provide service from its tower in Medora. In addition,
    Western was directed to explain what steps it took to comply with
    Section 1.1307(a)(4) of the Rules and what efforts it made to
    determine whether the Chateau de Mores, the de Mores Packing Plant,
    the Theodore Roosevelt Maltese Cross Cabin and the Peaceful Valley
    Ranch are listed, or are eligible for listing, in the NRHP.[^28]
    Western submitted a response to the second LOI on February 3,
    2003.[^29] Western indicates that under Section 22.165(c) of the
    Rules, a licensee may operate "additional transmitters at additional
    locations on the same channel or channel block as its existing
    system" without prior Commission approval if certain conditions are
    met.

10. Western contends that although its five year build out period in the
    McKenzie RSA expired before construction of the Medora Tower, the
    service area boundary of that site remained within Western's
    authorized Cellular Geographic Service Area ("CGSA"). Also, Western
    argues that its environmental review under Sections 1.1301 through
    1.1319 of the Rules indicated that construction and operation of the
    Medora site would not have a significant environmental effect.
    Western also states that it relied on the City Council's approval
    process to determine whether its tower would affect historic
    properties listed or eligible for listing in the NRHP. Western
    claims, that with the exception of the Peaceful Valley Ranch, the
    historic properties listed in the Commission's second LOI, as well
    as several other historic properties, are located in areas under the
    City's zoning jurisdiction. Western claims that potential impacts on
    the Peaceful Valley Ranch, located approximately five miles from the
    tower, had not previously been raised as an issue by any parties.
    [^30] Western notes that a complete listing of properties in the
    NRHP is available online, but argues that the focus of its review
    has been whether its tower affected any of these sites. Finally,
    Western summarizes the information it provided in response to the
    first LOI.

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III. **DISCUSSION**

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11. Section 22.165 of the Rules states in part that "a \[Public Mobile
    Services\] licensee may operate additional transmitters at
    additional locations on the same channel or channel block as its
    existing system without obtaining prior Commission approval" if
    certain conditions are met.[^31] One of the conditions that must be
    met is that the "additional transmitters must not have a significant
    environmental effect" under Sections 1.1301 through 1.1319 of the
    Rules.[^32] Similarly, under Section 1.947(a) of the Rules, "\[a\]ll
    major modifications \[of wireless licenses\], as defined in § 1.929
    of \[the Rules\] . . . , require prior Commission approval."[^33]
    Section 1.929(a) classifies the following as a "major" modification
    for all services: "\[a\]pplication or amendment requesting
    authorization for a facility that would have a significant
    environmental effect as defined by §§ 1.1301 through 1.1319 of the
    rules . . . ."[^34]

12. Under Section 1.1312(b) of the Rules, an EA must be submitted to and
    ruled on by the Commission prior to the initiation of construction
    if a proposed facility that is not otherwise subject to
    pre-construction authorization "may have a significant environmental
    impact."[^35] Section 1.1307(a)(4) specifies as one criterion of
    potential significant environmental effect "\[f\]acilities that may
    affect districts, sites, buildings, structures or objects,
    significant in American history, architecture, archeology,
    engineering or culture, that are listed, or are eligible for
    listing, in the National Register of Historic Places."[^36] Where
    approval of an application requiring an EA would have a significant
    environmental effect and a FONSI therefore cannot be issued, Section
    1.1305 of the Rules requires the preparation of a Draft
    Environmental Impact Statement (DEIS) and Final Environmental Impact
    Statement (FEIS) (collectively referred to as EISs) prior to
    Commission action.[^37]

13. Here, Western's construction of the Medora Tower not only *may have*
    had a significant environmental effect but, in fact, *did* have and
    continues to have such an effect. It is undisputed that Western
    constructed its tower near, and in plain view of, sites that are
    listed, or eligible for listing, in the NRHP, including the Chateau
    de Mores State Historic Site, the de Mores Packing Plant State
    Historic Site, and the Theodore Roosevelt Maltese Cross Cabin. It is
    also undisputed that the Historical Society did not conclude prior
    to construction that the tower would not have an adverse effect on
    Historic Properties. Therefore, we conclude that construction of the
    tower *may have* had a significant environmental effect under
    Section 1.1307(a)(4) of the Rules.[^38] Our conclusion is supported
    by the fact that the Historical Society, which is the relevant SHPO,
    concluded after the fact that the tower *has* an adverse effect on
    historic properties. Consequently, at a minimum, Commission approval
    following the filing of an EA was required prior to construction and
    operation. As a result, contrary to Western's assertion, it was
    required to prepare and submit to the Commission an EA, and receive
    Commission authorization, prior to the construction of its tower and
    operation from that location.[^39]

14. Moreover, in this instance not only was Western required to file an
    EA and obtain Commission authorization prior to construction, but
    because the constructed tower actually has significant environmental
    effects, it was required to await completion of an EIS.[^40] Based
    on the Historical Society's recommendation, other documents in the
    record, and our independent assessment, we find that the Medora
    Tower has an adverse effect on at least four sites listed in the
    NRHP -- Saint Mary's Church, the Medora Doll House, the Old Billings
    County Courthouse, and the de Mores Packing Plant Ruins -- and on at
    least one eligible site, the Maltese Cross Cabin. With respect to
    each of these sites, all of which are located within approximately
    one half mile or less of the tower, the tower on the bluff presents
    a modern intrusion that looms over these Historic Properties, thus
    introducing an obtrusive incongruous element into a setting that
    otherwise retains largely the same feel that it had at the time the
    structures were built. Hence, under Section 800.5(a)(1) of the ACHP
    Regulations, 36 C.F.R. § 800.5(a)(1),[^41] the tower has an adverse
    effect on Historic Properties.

15. In view of our finding that Western's Medora tower not only may
    have, but has had and continues to have, a significant environmental
    effect, we reject Western's argument that it has authority under
    Section 22.165 of the Rules[^42] to operate its tower. Specifically,
    Section 22.165 provides that licensees may operate additional
    transmitters for existing systems only if, *inter alia*, the
    additional transmitters do not have a significant environmental
    effect.[^43] Thus, under Section 22.165, a licensee may not operate
    additional transmitters without prior Commission approval if its
    action may have a significant environmental effect. Because
    Western's tower, in fact, has a significant environmental effect, it
    could not have met the Commission's requirements for authorization
    without prior approval under Section 22.165 of the Rules. In
    addition, Western has violated Section 1.947(a) of the Rules,[^44]
    which required Western to secure prior Commission approval of its
    construction of the Medora Tower because that tower "would have a
    significant environmental effect" and is, therefore, a major
    modification of Western's license under Section 1.929(a)(4) of the
    Rules.[^45] Thus, Western constructed the Medora Tower and continues
    to operate at this site without Commission approval. Accordingly, we
    conclude that Western apparently willfully and repeatedly violated
    Section 301 of the Act by operating radio transmitting equipment
    from an unauthorized location. We note that this violation has
    continued into the one-year limitations period for a
    forfeiture.[^46]

16. The fact that the City Council and others may have considered
    historic preservation issues, or that Western may have worked
    cooperatively with the WTB and others to try to resolve the problem
    after construction and operation of the Medora tower, has no bearing
    on the underlying violation in this case, which occurred before any
    such cooperative efforts and has continued since. In particular, we
    note that the Zoning Board's approval of Western's application is
    irrelevant to whether the tower has a significant environmental
    effect under the Commission's rules. Section 1.1311(c) of the Rules
    states that an EA should be accompanied with evidence of site
    approval obtained from local or Federal land use authorities, thus
    recognizing that such zoning approval does not preclude the need for
    an EA (or, in appropriate cases, an EIS).[^47] Further, Section
    1.1311(e) provides that an EA need not be submitted if another
    Federal Government agency has responsibility for deciding whether a
    proposed facility will have a significant environmental effect, thus
    recognizing that state or local environmental review does not
    replace the need for FCC or other federal environmental review.[^48]

17. Similarly, our finding that Western is in violation of the Act and
    is apparently liable for forfeiture is not affected by Western's
    claim that it offered to file a post-construction EA with the
    Commission and that Commission staff discouraged such a filing. The
    rules require Western to file an EA *before* construction of a
    facility, such as the Medora Tower, that may significantly affect
    the environment.[^49] Accordingly, a post-construction EA would not
    in itself end Western's violation of those rules. Moreover, because
    this tower, in fact, does have a significant impact on the
    environment, the filing of an EA for the existing tower would not
    have led to a FONSI that could have ended the violation. Finally,
    even if Western would have benefited from the filing of an EA but
    chose not to do so in reliance on the staff, such reliance was at
    Western's risk.[^50]

18. Because the Medora Tower has a significant environmental effect
    under the Commission's rules, Western was required to obtain
    Commission approval following preparation of an EIS prior to
    construction of, and operation at, the site. Moreover, because the
    construction may have had a significant environmental effect,
    Western was required to file an EA and obtain a FONSI prior to
    construction and operation. Thus, Western did not have authority to
    operate its tower under Sections 22.165 or 1.947 of the Rules,[^51]
    and its continued unauthorized operation of its tower violates
    Section 301 of the Act.

    **Forfeiture Amount**

19. Section 503(b) of the Act provides that any person who willfully or
    repeatedly fails to comply substantially with the terms and
    conditions of any license, or willfully fails to comply with any of
    the provisions of the Act or of any rule, regulation or order issued
    by the Commission thereunder, shall be liable for a forfeiture
    penalty.[^52] The term "willful" as used in Section 503(b) has been
    interpreted to mean simply that the acts or omissions are committed
    knowingly.[^53] The term "repeated" means that the violation
    occurred on more than one day.[^54] Section 503(b)(2)(B) of the Act
    authorizes the Commission to assess a forfeiture of up to \$120,000
    for each violation by a common carrier, or each day of a continuing
    violation, up to a statutory maximum of \$1,200,000 for a single act
    or failure to act.[^55] In determining the appropriate forfeiture
    amount, we must consider the factors enumerated in Section
    503(b)(2)(D) of the Act, including "the nature, circumstances,
    extent and gravity of the violation, and, with respect to the
    violator, the degree of culpability, any history of prior offenses,
    ability to pay, and such other matters as justice may require."[^56]

20. *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80(b) of the Rules to Incorporate the Forfeiture
    Guidelines* ("*Forfeiture Policy Statement"*)[^57] and Section 1.80
    of the Rules sets a base forfeiture amount of \$4,000 for operation
    at an unauthorized location. However, a significant upward
    adjustment is justified in this case since Western's violation
    continued for three and a half years after WTB informed Western that
    the tower "may have" a significant environmental effect, and
    continues to this date. Western's tower has had and continues to
    have a significant environmental effect on Historic Properties.[^58]
    We therefore consider this to be a very serious instance of a
    Section 301 violation for which a sizable increase in the base
    forfeiture amount under the upward adjustment criteria contained in
    Section 1.80 and the *Forfeiture Policy Statement* is
    warranted.[^59] Accordingly, applying the *Forfeiture Policy
    Statement* and statutory factors to the instant case, we conclude
    that Western is apparently liable for a \$200,000 forfeiture.

21. It is important that Western not be permitted to continue to benefit
    from its failure to comply with the environmental rules.
    Accordingly, Western is hereby directed to file, within 30 days of
    the release of this *NAL*, a sworn statement describing its plans to
    cease operation at its Medora Tower site or bring that site into
    compliance with our environmental rules. The statement must be filed
    either with Western's response to this *NAL*, or separately if it
    does not respond (e.g., if it pays the proposed forfeiture). Failure
    to cease operation will constitute an apparent further continuing
    violation that will subject Western to possible increased
    enforcement action, e.g., higher forfeitures and/or potential
    revocation of its underlying license for the community. We note that
    simply applying for authorization or applying for Special Temporary
    Authority ("STA"), or proposing a remedial plan would not bring
    Western into compliance and would not insulate Western from further
    enforcement action for operation prior to receipt of authorization.
    Finally, should Western plan any changes to its facilities or
    service in the Medora area in response to this NAL or subsequent
    Commission orders, we remind Western of its obligation under Section
    1.1308(a) of the Rules[^60] to file an EA if any of those changes
    may significantly affect the environment under Section 1.1307(a) of
    the Rules.[^61]

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IV. **CONCLUSION**

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22. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act, and Section 1.80 of the Rules,[^62] Western Wireless
    Corporation, is hereby NOTIFIED of its APPARENT LIABILITY FOR A
    FORFEITURE in the amount of two hundred thousand dollars (\$200,000)
    for willfully and repeatedly violating Section 301 of the Act.

23. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
    within thirty days of the release date of this NOTICE OF APPARENT
    LIABILITY, Western Wireless Corporation SHALL PAY the full amount of
    the proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

24. IT IS FURTHER ORDERED THAT, within 30 days of the release of this
    *Notice of Apparent Liability for Forfeiture,* Western file a sworn
    statement in accordance with paragraph 21 above.

25. Payment of the forfeiture may be made by mailing a check or similar
    instrument, payable to the order of the Federal Communications
    Commission, to the Forfeiture Collection Section, Finance Branch,
    Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment must include the FCC Registration Number
    (FRN) and the NAL/Acct. No. referenced in the caption.

26. The response, if any, and the statement referenced in paragraph 21
    above, must be mailed to the Office of the Secretary, Federal
    Communications Commission, 445 12th Street, S.W., Washington, D.C.
    20554, ATTN: Enforcement Bureau - Technical and Public Safety
    Division and must include the NAL/Acct. No. referenced in the
    caption.

27. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting practices ("GAAP"); or (3) some other reliable
    and objective documentation that accurately reflects the
    petitioner's current financial status. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

28. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Chief,
    Revenue and Receivable Operations Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^63]

29. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
    107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a
    two-year tracking process regarding the size of entities involved in
    forfeitures. If you qualify as a small entity and if you wish to be
    treated as a small entity for tracking purposes, please so certify
    to us within thirty (30) days of this NAL, either in your response
    to the NAL or in a separate filing to be sent to the Enforcement
    Bureau -- Technical and Public Safety Division. Your certification
    should indicate whether you, including your parent entity and its
    subsidiaries, meet one of the definitions set forth in the list
    provided by the FCC's Office of Communications Business
    Opportunities ("OCBO") set forth in Attachment A of this Notice of
    Apparent Liability. This information will be used for tracking
    purposes only. Your response or failure to respond to this question
    will have no effect on your rights and responsibilities pursuant to
    Section 503(b) of the Communications Act. If you have questions
    regarding any of the information contained in Attachment A, please
    contact OCBO at (202) 418-0990.

30. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail, Return Receipt Requested
    to Mr. Jim Blundell, Director of External Affairs, Western Wireless
    Corporation, 3650 131^st^ Avenue, SE, #400, Bellevue, WA 98006, and
    to its counsel, Michael Deuel Sullivan, Esq., Wilkinson Barker
    Knauer LLP, 2300 N Street, NW, Suite 700, Washington, DC 20037.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

> October 2002

+--------------------------------+-------------------------------------+
| **FCC List of Small Entities** |                                     |
|                                |                                     |
| **As described below, a "small |                                     |
| entity" may be a small         |                                     |
| organization,**                |                                     |
|                                |                                     |
| **a small governmental         |                                     |
| jurisdiction, or a small       |                                     |
| business.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(1) Small Organization**     |                                     |
+--------------------------------+-------------------------------------+
| **Any not-for-profit           |                                     |
| enterprise that is             |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field.**                       |                                     |
+--------------------------------+-------------------------------------+
| **(2) Small Governmental       |                                     |
| Jurisdiction**                 |                                     |
+--------------------------------+-------------------------------------+
| **Governments of cities,       |                                     |
| counties, towns, townships,    |                                     |
| villages, school districts,    |                                     |
| or**                           |                                     |
|                                |                                     |
| **special districts, with a    |                                     |
| population of less than fifty  |                                     |
| thousand.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(3) Small Business**         |                                     |
+--------------------------------+-------------------------------------+
| **Any business concern that is |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field, *and* meets the         |                                     |
| pertinent size criterion       |                                     |
| described below.**             |                                     |
+--------------------------------+-------------------------------------+
| **Industry Type**              | **Description of Small Business     |
|                                | Size Standards**                    |
+--------------------------------+-------------------------------------+
| ***Cable Services or           |                                     |
| Systems***                     |                                     |
+--------------------------------+-------------------------------------+
| Cable Systems                  | Special Size Standard --            |
|                                |                                     |
|                                | **Small Cable Company** has 400,000 |
|                                | Subscribers Nationwide or Fewer     |
+--------------------------------+-------------------------------------+
| Cable and Other Program        | \$12.5 Million in Annual Receipts   |
| Distribution                   | or Less                             |
+--------------------------------+-------------------------------------+
| Open Video Systems             |                                     |
+--------------------------------+-------------------------------------+
| ***Common Carrier Services and |                                     |
| Related Entities***            |                                     |
+--------------------------------+-------------------------------------+
| Wireline Carriers and Service  | 1,500 Employees or Fewer            |
| providers                      |                                     |
+--------------------------------+-------------------------------------+
| Local Exchange Carriers,       |                                     |
| Competitive Access Providers,  |                                     |
| Interexchange Carriers,        |                                     |
| Operator Service Providers,    |                                     |
| Payphone Providers, and        |                                     |
| Resellers                      |                                     |
+--------------------------------+-------------------------------------+
| **Note:** With the exception   |                                     |
| of Cable Systems, all size     |                                     |
| standards are expressed in     |                                     |
| either millions of dollars or  |                                     |
| number of employees and are    |                                     |
| generally the average annual   |                                     |
| receipts or the average        |                                     |
| employment of a firm.          |                                     |
| Directions for calculating     |                                     |
| average annual receipts and    |                                     |
| average employment of a firm   |                                     |
| can be found in                |                                     |
|                                |                                     |
| 13 C.F.R. §121.104 and 13      |                                     |
| C.F.R. § 121.106,              |                                     |
| respectively.                  |                                     |
+--------------------------------+-------------------------------------+
| ***International Services***   |                                     |
+--------------------------------+-------------------------------------+
| International Broadcast        | \$12.5 Million in Annual Receipts   |
| Stations                       | or Less                             |
+--------------------------------+-------------------------------------+
| International Public Fixed     |                                     |
| Radio (Public and Control      |                                     |
| Stations)                      |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite                |                                     |
| Transmit/Receive Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite Very Small     |                                     |
| Aperture Terminal Systems      |                                     |
+--------------------------------+-------------------------------------+
| Mobile Satellite Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Radio Determination Satellite  |                                     |
| Earth Stations                 |                                     |
+--------------------------------+-------------------------------------+
| Geostationary Space Stations   |                                     |
+--------------------------------+-------------------------------------+
| Non-Geostationary Space        |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Direct Broadcast Satellites    |                                     |
+--------------------------------+-------------------------------------+
| Home Satellite Dish Service    |                                     |
+--------------------------------+-------------------------------------+
| ***Mass Media Services***      |                                     |
+--------------------------------+-------------------------------------+
| Television Services            | \$12 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Low Power Television Services  |                                     |
| and Television Translator      |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| TV Auxiliary, Special          |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Radio Services                 | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio Auxiliary, Special       |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction Special Size Standard --    |
| Service                        |                                     |
|                                | **Small Business** is less than     |
|                                | \$40M in annual gross revenues for  |
|                                | three preceding years               |
+--------------------------------+-------------------------------------+
| ***Wireless and Commercial     |                                     |
| Mobile Services***             |                                     |
+--------------------------------+-------------------------------------+
| Cellular Licensees             | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase |                                     |
| I Licensees                    |                                     |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase | Auction special size standard -     |
| II Licensees                   |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and controlling          |
|                                | principals)                         |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and controlling          |
|                                | principals)                         |
+--------------------------------+-------------------------------------+
| 700 MHZ Guard Band Licensees   |                                     |
+--------------------------------+-------------------------------------+
| Private and Common Carrier     |                                     |
| Paging                         |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | 1,500 Employees or Fewer            |
| Communications Services        |                                     |
| (Blocks A, B, D, and E)        |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | Auction special size standard -     |
| Communications Services (Block |                                     |
| C)                             | **Small Business** is \$40M or less |
|                                | in annual gross revenues for three  |
|                                | previous calendar years             |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three calendar years  |
|                                | (includes affiliates and persons or |
|                                | entities that hold interest in such |
|                                | entity and their affiliates)        |
+--------------------------------+-------------------------------------+
| Broadband Personal             |                                     |
| Communications Services (Block |                                     |
| F)                             |                                     |
+--------------------------------+-------------------------------------+
| Narrowband Personal            |                                     |
| Communications Services        |                                     |
+--------------------------------+-------------------------------------+
| Rural Radiotelephone Service   | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Air-Ground Radiotelephone      |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| 800 MHz Specialized Mobile     | Auction special size standard -     |
| Radio                          |                                     |
|                                | **Small Business** is \$15M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
+--------------------------------+-------------------------------------+
| 900 MHz Specialized Mobile     |                                     |
| Radio                          |                                     |
+--------------------------------+-------------------------------------+
| Private Land Mobile Radio      | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Amateur Radio Service          | N/A                                 |
+--------------------------------+-------------------------------------+
| Aviation and Marine Radio      | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Fixed Microwave Services       |                                     |
+--------------------------------+-------------------------------------+
| Public Safety Radio Services   | **Small Business** is 1,500         |
|                                | employees or less                   |
|                                |                                     |
|                                | **Small Government Entities** has   |
|                                | population of less than 50,000      |
|                                | persons                             |
+--------------------------------+-------------------------------------+
| Wireless Telephony and Paging  | 1,500 Employees or Fewer            |
| and Messaging                  |                                     |
+--------------------------------+-------------------------------------+
| Personal Radio Services        | N/A                                 |
+--------------------------------+-------------------------------------+
| Offshore Radiotelephone        | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Wireless Communications        | **Small Business** is \$40M or less |
| Services                       | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 39 GHz Service                 |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction special size standard       |
| Service                        | (1996) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
|                                |                                     |
|                                | Prior to Auction --                 |
|                                |                                     |
|                                | **Small Business** has annual       |
|                                | revenue of \$12.5M or less          |
+--------------------------------+-------------------------------------+
| Multichannel Multipoint        | \$12.5 Million in Annual Receipts   |
| Distribution Service           | or Less                             |
+--------------------------------+-------------------------------------+
| Instructional Television Fixed |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Local Multipoint Distribution  | Auction special size standard       |
| Service                        | (1998) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 218-219 MHZ Service            | First Auction special size standard |
|                                | (1994) --                           |
|                                |                                     |
|                                | **Small Business** is an entity     |
|                                | that, together with its affiliates, |
|                                | has no more than a \$6M net worth   |
|                                | and, after federal income taxes     |
|                                | (excluding carryover losses) has no |
|                                | more than \$2M in annual profits    |
|                                | each year for the previous two      |
|                                | years                               |
|                                |                                     |
|                                | New Standard --                     |
|                                |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| Satellite Master Antenna       | \$12.5 Million in Annual Receipts   |
| Television Systems             | or Less                             |
+--------------------------------+-------------------------------------+
| 24 GHz -- Incumbent Licensees  | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 24 GHz -- Future Licensees     | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| ***Miscellaneous***            |                                     |
+--------------------------------+-------------------------------------+
| On-Line Information Services   | \$18 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio and Television           | 750 Employees or Fewer              |
| Broadcasting and Wireless      |                                     |
| Communications Equipment       |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Audio and Video Equipment      |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Telephone Apparatus            | 1,000 Employees or Fewer            |
| Manufacturers (Except          |                                     |
| Cellular)                      |                                     |
+--------------------------------+-------------------------------------+
| Medical Implant Device         | 500 Employees or Fewer              |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Hospitals                      | \$29 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Nursing Homes                  | \$11.5 Million in Annual Receipts   |
|                                | or Less                             |
+--------------------------------+-------------------------------------+
| Hotels and Motels              | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Tower Owners                   | (See Lessee's Type of Business)     |
+--------------------------------+-------------------------------------+

**STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

*Re: Western Wireless Corporation and WWC Holding Co., Inc., Licensee of
Cellular Radio Station KNKN343, CMA583 -- North Dakota 4 -- McKenzie
RSA; Notice of Apparent Liability for Forfeiture*

I recently announced a comprehensive, proactive approach for addressing
the Commission's responsibilities in the communications tower-siting
area. Enforcement action, where necessary, will be an integral part of
this approach as demonstrated by our action today.

As I described in the Action Plan, the siting of communications towers
places a number of worthy, but competing, federal interests in tension
\-- widespread deployment of advanced telecommunications networks, the
protection of birds and endangered species, aviation safety, and the
preservation of historic and cultural sites, to name a few. Balancing
these interests requires cooperation from a number of interested parties
\-- including state and federal agencies, Indian tribes, environmental
groups, and the communications and tower industries.

[^1]: 47 U.S.C. § 301.

[^2]: *See* 47 C.F.R. § 1.1305.

[^3]: 47 U.S.C. § 503(b).

[^4]: 42 U.S.C. §§ 4321-4335.

[^5]: 47 C.F.R. § 1.1307.

[^6]: 47 C.F.R. §§ 1.1308 and 1.1311.

[^7]: 47 C.F.R. § 1.1312. *See also* 47 C.F.R. § 22.165(c).

[^8]: 16 U.S.C. §§ 470 *et seq.* In particular, Section 106 of the NHPA
    (16 U.S.C. § 470f) requires Federal agencies, such as the Commission
    ". . . prior to the issuance of any license . . . \[to\] take into
    account the effect of the undertaking on any district, site,
    building, structure or object that \[qualifies as a Historic
    Property\]."

[^9]: 47 C.F.R. § 1.1307(a)(4).

[^10]: 47 C.F.R. § 1.1308(d).

[^11]: *See* 47 C.F.R. §§ 1.1308(c), 1.1309.

[^12]: *See* 47 C.F.R. §§ 1.1305, 1.1314, 1.1315, 1.1317.

[^13]: Letter from Michael E. Simonson, Review & Compliance Coordinator,
    State Historical Society of North Dakota, to Frank Stilwell,
    Commercial Wireless Division, Wireless Telecommunications Bureau
    (November 15, 1999) ("November 15, 1999 Letter").

[^14]: While the Commission's historic preservation rules do not
    expressly refer to properties listed on state or local registers of
    historic properties, such local registers are important sources of
    information. Where such locally-listed properties are found in the
    area of potential effects ("APE"), they should be evaluated for NRHP
    eligibility.

[^15]: Letter from Michael E. Simonson, Review & Compliance Coordinator,
    State Historical Society of North Dakota, to Frank Stilwell,
    Commercial Wireless Division, Wireless Telecommunications Bureau
    (January 31, 2000). *See also* Letter from Michael Deuel Sullivan,
    Esq., to Kathy Harvey, Technical and Public Safety Division,
    Enforcement Bureau (February 3, 2003) ("Western February 2003
    Letter") (stating that the nearest historic site to the tower is
    approximately one quarter of a mile away)

[^16]: *See*, *e.g.*, Letter from Noel R. Poe, Superintendent, National
    Park Service, U.S. Department of the Interior, to Dan Abeyta,
    Commercial Wireless Division, Wireless Telecommunications Bureau
    (March 15, 2001).

[^17]: Letter from Rose Crellin, Commercial Wireless Division, Wireless
    Telecommunications Bureau, to Grant Hoovestos, Western Wireless
    Corporation (December 14, 1999).

[^18]: *Id*. (emphasis added). In February 2000, WTB again informed
    Western that if the situation was not resolved, it "may be subject
    to enforcement action by the Commission."

[^19]: Because the Commission has historically focused its environmental
    enforcement efforts on the kind of informal resolution attempted by
    WTB in this case, WTB and other licensing Bureaus have primary
    responsibility for environmental enforcement. 47 C.F.R. §
    0.111(a)(11) Note. The rules also provide for referral of such
    matters from the licensing bureaus to EB upon mutual agreement of
    the Bureaus. *Id.*, § 0.111(a)(14). We take this opportunity to
    state our strong support for an enforcement-oriented approach in the
    protection of the environment. We direct referrals to EB of
    violations by licensees or tower owners where appropriate and
    continued strong enforcement action by EB where such action is
    appropriate.

[^20]: Letter from Joseph P. Casey, Chief, Technical and Public Safety
    Division, Enforcement Bureau, to Jim Blundell, Director of External
    Affairs, Western Wireless Corporation (October 17, 2002).

[^21]: Letter from Michael Deuel Sullivan, Esq., to Kathy Harvey,
    Technical and Public Safety Division, Enforcement Bureau (November
    1, 2002) ("Western November 2002 Letter")

[^22]: Chapter 6, Article 1, Introduction.

[^23]: Chapter 6, Article 3, § 6.0301.

[^24]: Western November 2002 Letter at 3. More precisely, Section
    1.1307(a)(4) of the Rules, 47 C.F.R. § 1.1307(a)(4), requires an EA
    where a proposed facility "may affect districts, sites, buildings,
    structures or objects, significant in American history,
    architecture, archeology, engineering or culture, that are listed,
    or eligible for listing in the National Register of Historic
    Places."

[^25]: Western November 2002 Letter at 3. *See also* 47 C.F.R. §
    1.1307(a)(4) note (emphasis added).

[^26]: Western November 2002 Letter at 3. *See also* 47 C.F.R. §§
    1.1306(a), 1.1307(a)(4).

[^27]: Western November 2002 Letter . 47 C.F.R. § 1.1307(c) and (d).

[^28]: Letter from Joseph P. Casey, Chief, Technical and Public Safety
    Division, Enforcement Bureau, to Jim Blundell, Director of External
    Affairs, Western Wireless Corporation (January 14, 2003).

[^29]: Western February 2003 Letter.

[^30]: We note that in the Historical Society's November 1999 letter to
    the Wireless Telecommunications Bureau, it asserted that Western's
    tower adversely affected the Peaceful Valley Ranch.

[^31]: 47 C.F.R. § 22.165.

[^32]: 47 C.F.R. §§ 1.1301-1.1319, 22.165(c).

[^33]: 47 C.F.R. § 1.929.

[^34]: 47 C.F.R. §§ 1.1301-1.1319.

[^35]: 47 C.F.R. § 1.1312(b); *see also* 47 C.F.R. §§ 1.1307(a) (EA
    required where facility "may significantly affect the environment),
    1.1308, 1.1311.

[^36]: 47 C.F.R. § 1.1307(a)(4).

[^37]: 47 C.F.R. § 1.1305; *see also* 47 C.F.R. §§ 1.1308(i), 1.1314,
    1.1315, 1.1317.

[^38]: 47 C.F.R. § 1.1307(a)(4).

[^39]: 47 C.F.R. §§ 1.1307(a)(4), 1.1308, 1.1311.

[^40]: Where construction of a facility is deemed a Commission action
    and that facility has an unmitigated adverse effect on one or more
    Historic Properties, the Commission has for some time viewed such a
    facility as having a significant effect on the environment. For
    example, in its 1974 Report and Order implementing NEPA, the
    Commission determined that the following "classes of facilities"
    would be classified as "major" under NEPA: those "\[f\]acilities
    which will affect districts, sites, buildings, structures, or
    objects, significant in American history, architecture, archeology
    or culture which are listed in the National Register of Historic
    Places or are eligible for listing." Implementation of the National
    Environmental Policy Act of 1969, 49 FCC2d 1313, 1319-1320 (1974)
    *recon. granted in part and otherwise denied*, 56 FCC2d 635 (1975).

[^41]: An adverse effect is found when an undertaking may alter,
    directly or indirectly, any of the characteristics of a historic
    property that qualify the property for inclusion in the National
    Register in a manner that would diminish the integrity of the
    property\'s location, design, setting, materials, workmanship,
    feeling, or association. Consideration shall be given to all
    qualifying characteristics of a historic property, including those
    that may have been identified subsequent to the original evaluation
    of the property\'s eligibility for the National Register. Adverse
    effects may include reasonably foreseeable effects caused by the
    undertaking that may occur later in time, be farther removed in
    distance or be cumulative. Section 800.5(a)(1) of the ACHP
    Regulations, 36 C.F.R. § 800.5(a)(1). *See also* 36 C.F.R.
    800.5(a)(2)(v) "Introduction of visual, atmospheric or audible
    elements that diminish the integrity of the property's significant
    historical features."

[^42]: 47 C.F.R. § 22.165.

[^43]: 47 C.F.R. 22.165(c).

[^44]: 47 C.F.R. § 1.947(a).

[^45]: 47 C.F.R. § 1.929(a)(4).

[^46]: 47 U.S.C. § 503(b)(6)(B)**.**

[^47]: 47 C.F.R. § 1.1311(c).

[^48]: 47 C.F.R. § 1.1311 (e). With respect to Western's "consultation"
    with the National Park Service, the National Park Service has
    indicated that, at the time, it was unaware that the FCC had rules
    relating to the location of communications towers. Letter from Noel
    R. Poe, Superintendent, National Park Service, U.S. Department of
    the Interior, to RaeAnn Kelsch, Manager of External Affairs, Western
    Wireless Corporation (July 6, 2000). The National Park Service also
    notes: "It is not the National Park Service, TRMF \[Theodore
    Roosevelt Medora Foundation\], nor the City's responsibility to know
    and abide by FCC Regulations. That responsibility rests solely with
    WW \[Western\]." *Id*.

[^49]: *See* 47 C.F.R. § 1.1308(a).

[^50]: See *Amor Family Broadcasting Group v. FCC,* 918 F.2d 960, 962
    (D.C. Cir. 1991).

[^51]: 47 C.F.R. §§ 22.165, 1.947.

[^52]: 47 U.S.C. § 503(b).

[^53]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that "\[t\]he term 'willful',
    when used with reference to the commission or omission of any act,
    means the conscious and deliberate commission or omission of such
    act, irrespective of any intent to violate any provision of this Act
    or any rule or regulation of the Commission authorized by this
    Act...." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^54]: Section 312(f)(2) of the Act provides that "\[t\]he term
    'repeated,' when used with reference to the commission or omission
    of any act, means the commission or omission of such act more than
    once or, if such commission or omission is continuous, for more than
    one day." 47 U.S.C. § 312(f)(2).

[^55]: 47 U.S.C. § 503(b)(2)(B); *see also* 47 C.F.R. § 1.80(b)(2).

[^56]: 47 U.S.C. § 503(b)(2)(D); *see also* *Forfeiture Policy
    Statement*, 12 FCC Rcd at 17100 (1997); 47 C.F.R. § 1.80(b)(4).

[^57]: 12 FCC Rcd 17087 (1997), *recon denied*, 15 FCC Rcd 303 (1999).

[^58]: In addition, Western failed to obtain prior Commission approval
    for a facility that may have an adverse effect on one or more
    Historic Properties.

[^59]: 47 C.F.R. § 1.80(b)(4), Note to paragraph (b)(4): Section II.
    Adjustment Criteria for Section 503 Forfeitures; *Forfeiture Policy
    Statement*, 12 FCC Rcd at 17117, Appendix A, Section II.

[^60]: 47 C.F.R. § 1.1308(a).

[^61]: 47 C.F.R. § 1.1307(a).

[^62]: 47 C.F.R. § 1.80.

[^63]: *See* 47 C.F.R. § 1.1914.