# Before the

# Federal Communications Commission

# Washington, D.C. 20554

+--------------------------------+-------+-----------------------------+
| In the Matter of               | )     | File Nos.: EB-06-SE-344;    |
|                                |       | EB-06-SE-437                |
| T-Mobile USA, Inc.             | )     |                             |
|                                |       | Acct. No. 200732100001      |
|                                | )     |                             |
|                                |       | FRN No. 0004677209          |
|                                | )     |                             |
|                                |       |                             |
|                                | )     |                             |
+--------------------------------+-------+-----------------------------+

# ORDER

**Adopted:** January 15, 2009 **Released:** January 15, 2009

By the Assistant Chief, Enforcement Bureau:

1.  In this Order, we adopt the attached Consent Decree entered into
    between the Enforcement Bureau ("Bureau") and T-Mobile USA, Inc.
    ("T-Mobile"). The Consent Decree is for the purpose of terminating
    the Bureau's investigation into whether T-Mobile violated section
    1.1307(a)(4) of the Commission's Rules ("Rules")[^1] with respect to
    the construction of a wireless communications facilities in
    Philadelphia, Pennsylvania, and Chimayo, New Mexico.

2.  The Bureau and T-Mobile have negotiated the terms of a Consent
    Decree that resolves this matter. A copy of the Consent Decree is
    attached hereto and incorporated by reference.

3.  After reviewing the terms of the Consent Decree and evaluating the
    facts before us, we find that the public interest would be served by
    adopting the Consent Decree and terminating the investigation.

4.  In the absence of material new evidence relating to this matter, we
    conclude there are no substantial or material questions of fact as
    to whether T-Mobile 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 section 4(i) of the
    Act,[^2] and sections 0.111 and 0.311 of the Rules,[^3] the Consent
    Decree attached to this Order **IS ADOPTED**.

6.  **IT IS FURTHER ORDERED** that the above-captioned investigation
    **IS TERMINATED**.

7.  **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by first class mail and
    certified mail return receipt requested to counsel for T-Mobile,
    David H. Solomon, Esq., Wilkinson Barker Knauer, LLP, 2300 N Street,
    NW, Suite 700, Washington, DC 20037.

    FEDERAL COMMUNICATIONS COMMISSION

Susan McNeil

Assistant Chief

Enforcement Bureau

**Before the**

# Federal Communications Commission

# Washington, D.C. 20554

+--------------------------------+-------+-----------------------------+
| In the Matter of               | )     | File Nos.: EB-06-SE-344;    |
|                                |       | EB-06-SE-437                |
| T-Mobile USA, Inc.             | )     |                             |
|                                |       | Acct. No.: 200732100001     |
|                                | )     |                             |
|                                |       | FRN No.: 0004677209         |
|                                | )     |                             |
|                                |       |                             |
|                                | )     |                             |
+--------------------------------+-------+-----------------------------+

**CONSENT DECREE**

The Enforcement Bureau ("Bureau") and T-Mobile USA, Inc. ("T-Mobile" or
the "Company"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Bureau's
investigation into whether T-Mobile violated the historic preservation
regulations set forth in section 1.1307(a)(4)[^4] of the Commission's
Rules and any related rules with respect to the construction of wireless
communications facilities in Philadelphia, Pennsylvania, and Chimayo,
New Mexico.

**I. DEFINITIONS**

1.  For the purposes of this Consent Decree, the following definitions
    shall apply:

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(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.

(e) "Compliance Plan" means the program described in this Consent Decree
    at paragraph nine.

(f) "Effective Date" means the date on which the Bureau releases the
    Adopting Order.

(g) "Investigations" means the investigations initiated by the Bureau
    into whether\
    T-Mobile violated the historic preservation regulations set forth in
    section 1.1307(a)(4) of the Commission's Rules and any related rules
    with respect to the construction of wireless communications
    facilities in Philadelphia, Pennsylvania (EB-06-SE-344), and
    Chimayo, New Mexico (EB-06-SE-437).

(h) "Notice of Apparent Liability" or "NAL" means the Notice of Apparent
    Liability for Forfeiture issued against T-Mobile Northeast, L.L.C.
    on October 19, 2006.\
    *T-Mobile Northeast, L.L.C.,* 21 FCC Rcd 11799 (EB 2006).

(i) "Parties" means T-Mobile and the Bureau.

(j) "Rules" means the Commission's regulations found in Title 47 of the
    Code of Federal Regulations.

(k) "T-Mobile" means T-Mobile USA, Inc., and its subsidiaries,
    affiliates, predecessors-in-interest and successors-in-interest.

**II. BACKGROUND**

2.  Section 1.1307(a)(4) of the Rules requires licensees to consider
    whether their proposed facilities would affect properties listed or
    eligible for listing ("historic properties") in the National
    Register of Historic Places ("National Register"). In considering
    potential effects on historic properties, section 1.1307(a)(4)
    requires licensees to follow the prescribed procedures established
    by the Programmatic Agreements for collocated antennas[^5] and for
    historic preservation review.[^6] The Collocation and Nationwide
    Agreements[^7] are designed to tailor and streamline the review and
    consultation procedures required by the National Historic
    Preservation Act of 1966, as amended ("NHPA"),[^8] and the
    implementing regulations issued by the Advisory Council on Historic
    Preservation ("Advisory Council").[^9]

3.  On October 19, 2006, the Enforcement Bureau issued the Notice of
    Apparent Liability against T-Mobile with respect to T-Mobile's
    compliance with section 1.1307(a)(4) of the Commission's Rules
    regarding collocation of antennas onto the roof of property in
    Philadelphia, Pennsylvania. The NAL noted that T-Mobile voluntarily
    disclosed this matter to Commission staff and took prompt efforts to
    address historic preservation concerns by consulting with the
    Pennsylvania State Historic Preservation Officer ("SHPO"), which
    determined that T-Mobile's facility "would have no effect on
    historic properties."[^10]

4.  The Bureau also has been investigating T-Mobile's compliance with
    section 1.1307(a)(4) of the Commission's rules regarding
    construction and operation of telecommunications facilities in
    Chimayo, New Mexico. The Commission's Wireless Telecommunications
    Bureau has found that

    T-Mobile's tower in Chimayo has an adverse effect on historic
    properties.[^11] The Wireless Telecommunications Bureau also has
    found, in connection with the Chimayo investigation, that

    T-Mobile's "inadvertent errors and admissions do not establish an
    intentional avoidance of NHPA review or an intentional adverse
    effect on a historic property in contravention of Section 110(k)" of
    the NHPA.[^12] T-Mobile has been actively consulting with Commission
    staff and the New Mexico SHPO to address the effects of the Chimayo
    tower.

**III. TERMS OF AGREEMENT**

5.  **[Adopting Order]{.underline}.** 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 without change, addition, modification, or
    deletion.

6.  **[Jurisdiction]{.underline}.** T-Mobile agrees that the Bureau has
    jurisdiction over it and the matters contained in this Consent
    Decree and has the authority to enter into and adopt this Consent
    Decree.

7.  **[Effective Date; Violations]{.underline}.** The Parties agree that
    this Consent Decree shall become effective on the date on which the
    Bureau releases the Adopting Order. Upon release, the Adopting Order
    and this Consent Decree shall have the same force and effect as any
    other Order of the Bureau. Any violation of the Adopting Order or of
    the terms of this Consent Decree shall constitute a separate
    violation of a Bureau Order, entitling the Bureau to exercise any
    rights and remedies attendant to the enforcement of a Commission
    Order.

8.  **[Termination of Investigations]{.underline}.** In express reliance
    on the covenants and representations in this Consent Decree and to
    avoid further expenditure of public resources, the Bureau agrees to
    terminate its investigations without any findings of liability on
    the part of T-Mobile and to cancel the NAL. In consideration for the
    termination of said investigations, T-Mobile 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 these investigations through the
    Effective Date of the Consent Decree, or the existence of this
    Consent Decree, to institute, on its own motion (or recommend to the
    Commission) any new enforcement proceeding, formal or informal, or
    take any action on its own motion against T-Mobile concerning the
    matters that were the subject of the investigations. The Bureau also
    agrees that it will not use the facts developed in the
    investigations through the Effective Date of this Consent Decree, 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 (or recommend to the Commission
    any action) against T-Mobile with respect to T-Mobile's basic
    qualifications, including its character qualifications, to be a
    Commission licensee or authorized common carrier or hold Commission
    authorizations.

9.  **[Compliance Plan]{.underline}.** For purposes of settling the
    matters set forth herein, T-Mobile agrees to create within 30 days
    of the Effective Date of this Consent Decree and maintain a
    Compliance Plan related to future compliance with the historic
    preservation requirements of the Act, the Commission's Rules, and
    the Commission's Orders. The Plan will include, at a minimum, the
    following components:

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(a) **[Compliance Team]{.underline}**. T-Mobile shall appoint a
    two-person team that will be responsible for implementation of this
    Compliance Plan. This team shall be thoroughly familiar with the
    FCC's environmental requirements, including the Collocation
    Agreement and the historic preservation review process under the
    Nationwide Agreement. T-Mobile shall provide those persons'
    identities and contact information to the FCC and ensure that this
    information is kept current.

(b) **[Compliance Procedures]{.underline}**. T-Mobile will periodically
    review, at least once during the first twelve months after the
    Effective Date and once during the second twelve months after the
    Effective Date, the Company's written policies and procedures
    governing its compliance with the Commission's historic preservation
    requirements, and will make any changes to such policies and
    procedures, as appropriate, to assist in compliance with the Act,
    the Commission's Rules and the Commission's Orders. These policies
    and procedures shall spell out in detail the historic preservation
    compliance responsibilities of T-Mobile's outside consultants
    dealing with wireless facilities construction and of those employees
    within T-Mobile who supervise those consultants, as well as the
    methods by which historic preservation compliance will be assured at
    each stage of the pre-construction and construction process. As part
    of these procedures, to better ensure the completeness and accuracy
    of its submissions, for those states where the SHPO is
    participating, T-Mobile will encourage its consultants to use the
    FCC's Electronic Section 106 Filing System ("E-Section 106 System")
    for submitting materials to the State Historic Preservation
    Officers. T-Mobile shall provide an executive summary of its written
    policies and procedures to the Bureau and the Wireless
    Telecommunications Bureau within 30 days of the Effective Date of
    this Consent Decree.

(c) **[Compliance Training]{.underline}**. T-Mobile will periodically
    conduct, at least once during the first twelve months after the
    Effective Date and once during the second twelve months after the
    Effective Date, training for key T-Mobile personnel and consultants
    who have responsibility for and involvement in communications tower
    and antenna siting with regard to T-Mobile's policies and procedures
    governing compliance with the FCC's historic preservation rules and
    those rules themselves. Relevant new employees and consultants will
    also be trained within 90 days of their employment. The training
    program shall include detailed information concerning the Section
    106 process, including the FCC Form 620 and Form 621 Submission
    Packets and the Tower Construction Notification System.

(d) **[FCC Monitoring]{.underline}**. T-Mobile will monitor FCC
    developments and decisions and modify its historic preservation
    compliance policies as appropriate. T-Mobile will continue
    reasonably to cooperate with the FCC regarding the accuracy of
    T-Mobile's submittals for tower construction and collocation.

(e) **[Good Faith Consultation Efforts]{.underline}.** T-Mobile will
    continue to consult in good faith with the Wireless
    Telecommunications Bureau and the New Mexico SHPO regarding the
    Chimayo, New Mexico site referenced in paragraph four above.

(f) **[Compliance Reports]{.underline}.** T-Mobile will file compliance
    reports with the Commission ninety days, twelve months, and twenty
    four months after the Effective Date of the Order adopting this
    Consent Decree. Each compliance report shall include a compliance
    certificate from an official (Vice President or higher), as an agent
    of T-Mobile, stating that the official has personal knowledge that
    T-Mobile has complied with the terms of the Compliance Plan set
    forth in this paragraph, together with an accompanying statement
    explaining the basis for the official's compliance certification.
    All compliance reports shall be submitted to the Chief, Spectrum
    Enforcement Division, Enforcement Bureau, Federal Communications
    Commission, 445 12th Street, S.W., Washington, D.C. 20554. All
    reports shall also be submitted electronically to Jacqueline
    Ellington, Esq. at Jackie.Ellington@fcc.gov and to JoAnn Lucanik,
    Esq. at JoAnn.Lucanik@fcc.gov.

(g) **[Termination Date]{.underline}.** Unless stated otherwise, the
    requirements of this paragraph will expire twenty four months from
    the Effective Date.

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10. **[Section 208 Complaints; Subsequent Investigations]{.underline}.**
    Nothing in this Consent Decree shall prevent the Commission or its
    delegated authority from adjudicating complaints filed pursuant to
    section 208 of the Act against T-Mobile or its affiliates for
    alleged violations of the Act, or for any other type of alleged
    misconduct, regardless of when such misconduct took place. The
    Commission's adjudication of any such complaint will be based solely
    on the record developed in that proceeding. Except as expressly
    provided in this Consent Decree, this Consent Decree shall not
    prevent the Commission from investigating new evidence of
    noncompliance by T-Mobile with the Act, the rules, or Commission
    Orders.

10\. **[Voluntary Contribution]{.underline}.** T-Mobile agrees that it
will make a voluntary contribution to the United States Treasury in the
amount of twenty-five thousand dollars (\$25,000.00). 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 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 Account Number in block number 23A (call
sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). T-Mobile shall also send electronic notification on
the date said payment is made to Jacqueline Ellington, Esq. at
Jackie.Ellington@fcc.gov and JoAnn Lucanik, Esq. at
JoAnn.Lucanik@fcc.gov.

11\. **[Waivers]{.underline}.** T-Mobile 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
an Adopting Order adopting the Consent Decree without change, addition,
modification, or deletion. T-Mobile 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 T-Mobile nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and T-Mobile shall
waive any statutory right to a trial *de novo*. T-Mobile hereby agrees
to waive any claims it may otherwise have under the Equal Access to
Justice Act, 5 U.S.C. § 504 and 47 C.F.R. § 1.1501 *et seq*., relating
to the matters addressed in this Consent Decree.

12\. **[Invalidity]{.underline}.** In the event that this Consent Decree
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.

13\. **[Subsequent Rule or Order]{.underline}.** 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 T-Mobile
does not expressly consent) that provision will be superseded by such
Commission rule or Order.

14. **[Successors and Assigns]{.underline}.** T-Mobile agrees that the
    provisions of this Consent Decree shall be binding on its
    successors, assigns, and transferees.

15. **[Final Settlement]{.underline}.** 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 Act or the
    Commission's Rules and Orders.

16. **[Modifications]{.underline}.** This Consent Decree cannot be
    modified without the advance written consent of both Parties.

17. **[Paragraph Headings]{.underline}.** 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.

18. **[Authorized Representative]{.underline}.** Each party represents
    and warrants to the other that it has full power and authority to
    enter into this Consent Decree.

19. **[Counterparts]{.underline}.** This Consent Decree may be signed in
    any number of counterparts (including by facsimile), each of which,
    when executed and delivered, shall be an original, and all of which
    counterparts together shall constitute one and the same fully
    executed instrument.

+-----------------------------------+-----------------------------------+
| \_\_\_\_\_\_\_\_\_\_\_\_\_\_\     |                                   |
| _\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ |                                   |
|                                   |                                   |
| Susan McNeil                      |                                   |
|                                   |                                   |
| Assistant Chief                   |                                   |
|                                   |                                   |
| Enforcement Bureau                |                                   |
|                                   |                                   |
| \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\   |                                   |
| _\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ |                                   |
|                                   |                                   |
| Date                              |                                   |
|                                   |                                   |
| **                                |                                   |
| \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\ |                                   |
| _\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** |                                   |
|                                   |                                   |
| Kathleen O'Brien Ham              |                                   |
|                                   |                                   |
| Vice President, Federal           |                                   |
| Regulatory                        |                                   |
|                                   |                                   |
| T-Mobile USA, Inc.                |                                   |
|                                   |                                   |
| \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\   |                                   |
| _\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ |                                   |
|                                   |                                   |
| Date                              |                                   |
+-----------------------------------+-----------------------------------+

[^1]: 47 U.S.C. § 302a(b).

[^2]: 47 U.S.C. § 154(i).

[^3]: 47 C.F.R. §§ 0.111, 0.311.

[^4]: 47 C.F.R. § 1.1307(a)(4).

[^5]: *See Wireless Telecommunications Bureau Announces Execution of
    Programmatic Agreement with respect to Collocating Wireless Antennas
    on Existing Structures,* Public Notice, 16 FCC Rcd 5574 (WTB 2001),
    *recon. denied,* 20 FCC Rcd 4084 (WTB 2005) ("*Collocation
    Agreement*").

[^6]: *See Nationwide Programmatic Agreement Regarding the Section 106
    National Historic Preservation Act Review Process,* Report and
    Order, WT Docket No. 03-128, 20 FCC Rcd 1073 (2004), *clarified*, 20
    FCC Rcd 17995 (2005), *aff'd sub nom. CTIA-The Wireless Ass'n. v.
    FCC,* 466 F.3d 105 (D.C. Cir. 2006) ("*Nationwide Agreement*")**.**

[^7]: Section 1.1307(a)(4) of the Rules incorporates by reference the
    Collocation Agreement and the Nationwide Agreement.

[^8]: 16 U.S.C. § 470 *et seq.* The NHPA requires that a federal agency
    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. *See* 16 U.S.C. §§
    470f, 470w(7). In considering such effects, the NHPA further
    requires the 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. §§ 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 for enforcement of
    the environmental rules. *See* 47 C.F.R. § 1.1307(a)(4); *see also*
    36 C.F.R. § 800.2(a)(3); *Nationwide Agreement,* 20 FCC Rcd at
    1076-77 ¶ 5.

[^9]: *See* 36 C.F.R. § 800.1 *et seq.* Under the NHPA and the Advisory
    Council's implementing regulations, a federal agency may, with the
    agreement of the Advisory Council and the relevant State Historic
    Preservation Officer or the National Conference of State Historic
    Preservation Officers, adopt Programmatic Agreements to tailor the
    historic preservation review and consultation procedures, as well as
    exempt actions that are unlikely to affect historic properties.
    *See* 16 U.S.C. § 470v; 36 C.F.R. § 800.14(b), (c).

[^10]: *See* Letter from Andres MacDonald, Chief, Division of
    Preservation Services, Pennsylvania Historical and Museum Commission
    to Stephen W. Tull, URS Corporation (May 10, 2006).

[^11]: *See* E-mail from Jeffrey S. Steinberg, Deputy Chief, Spectrum
    and Competition Policy Division, Wireless Telecommunications Bureau,
    to Katherine Slick, New Mexico State Historic Preservation Officer,
    *et al.* (Nov. 5, 2008).

[^12]: *See* Letter from Jeffrey S. Steinberg, Deputy Chief, Spectrum
    and Competition Policy Division, Wireless Telecommunications Bureau,
    to Charlene Dwin Vaughn, AICP, Assistant Director, Office of Federal
    Programs, Federal Permitting, Licensing, and Assistance, Advisory
    Council on Historic Preservation (Oct. 3, 2008).