**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-06-SE-352

Panhandle Telecommunications Systems, Inc. ) NAL/Acct. No. 200732100002

) FRN \# 0001704246

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted Date: October 19, 2006 Released Date: October 19, 2006**

By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

#### I. INTRODUCTION {#i.-introduction .Style-Heading-4-+-Left}

1.  By this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    Panhandle Telecommunications, Inc. ("Panhandle") apparently liable
    for a forfeiture in the amount of five thousand six hundred dollars
    (\$5,600) for constructing a facility before completing
    environmental review, in apparent willful violation of Sections
    1.1307(a)(3) and 1.1307(a)(4) of the Commission's Rules
    ("Rules").[^1]

#### II. BACKGROUND {#ii.-background .Style-Heading-4-+-Left}

2.  Under the Commission's rules implementing the National Environmental
    Policy Act of 1969, as amended, ("NEPA"),[^2] licensees, permittees
    and applicants (collectively, "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 Rules.[^3] For actions that may have significant
    environmental effects, licensees must prepare and submit to the
    Commission an Environmental Assessment ("EA")[^4] and undergo
    environmental review and any mandatory consultation with expert
    agencies, prior to initiating construction.[^5] This includes
    actions for which no pre-construction authorization is otherwise
    required.[^6]

3.  Section 1.1307(a)(3) provides that an EA is required for proposed
    facilities that may affect listed threatened or endangered species
    or designated critical habitats, or are likely to jeopardize the
    continued existence of any proposed endangered or threatened species
    or likely to result in the destruction or adverse modification of
    proposed critical habitats, as determined by the Secretary of the
    Interior pursuant to the Endangered Species Act of 1973 ("ESA").[^7]
    Thus, applicants and licensees are routinely required to evaluate
    their proposed construction projects for potential adverse effects
    on species that are endangered, threatened, or otherwise subject to
    Section 1.1307(a)(3), and to file an EA if the terms of Section
    1.1307(a)(3) are met. To assist in making this assessment, licensees
    may solicit and consider the comments of the U.S. Fish and Wildlife
    Service (USFWS).[^8]

4.  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[^9] and for
    historic preservation review.[^10] The Collocation and Nationwide
    Agreements[^11] are designed to tailor and streamline the review and
    consultation procedures required by the National Historic
    Preservation Act of 1966, as amended ("NHPA"),[^12] and the
    implementing regulations issued by the Advisory Council on Historic
    Preservation ("Advisory Council").[^13]

5.  The Nationwide Agreement requires licensees[^14] to: (i) determine
    the geographical areas of potential effects ("APE") for both direct
    and visual effects;[^15] (ii) identify historic properties within
    the applicable APE; and (iii) consider the effects a proposed
    facility may have on the identified properties. In the course of
    this process, licensees must, among other things, solicit the views
    of the State Historic Preservation Officer ("SHPO") and, if
    applicable, any Indian tribe or Native Hawaiian organization ("NHO")
    that may attach religious or cultural significance to potentially
    affected historic properties.

6.  Thus, under the Nationwide Agreement, licensees must identify the
    historic properties located within the APE that may be directly or
    visually affected by their proposed facility. The APE for direct
    effects is the area of potential ground disturbance and any property
    that will be physically altered or destroyed by the undertaking; the
    "presumed APE" for visual effects is based on the height of the
    facility.[^16] For a facility that is 200 feet or less in overall
    height, the presumed APE for visual effects is a half mile.[^17] To
    identify historic properties located within the APE for direct and
    visual effects ("nearby historic properties"), licensees must review
    certain records maintained by the appropriate SHPO, gather
    information from interested Indian tribes and NHOs, and make
    additional reasonable good faith efforts at identification within
    the APE for direct effects.[^18] In the course of the identification
    and assessment process, licensees must also solicit and consider the
    views of the local government and the general public.[^19] At the
    conclusion of this process, licensees must provide the SHPO and any
    interested consulting parties with Submission Packets ("Packets")
    detailing their proposals and explaining the effects, if any, their
    proposals may have on nearby historic properties.[^20] Licensees
    must provide the SHPO a 30-day period to review these Packets,
    during which other parties may submit comments.[^21]

7.  In cases where a licensee determines that its proposed facility will
    not involve historic properties,[^22] and the SHPO concurs or does
    not respond within 30 days of receipt of the Packet, the historic
    preservation review process is deemed complete, and the licensee may
    begin construction if all other required review processes have been
    completed.[^23] In cases where a licensee determines that its
    proposed facility will have an effect on nearby historic properties,
    but that the effect is not adverse, and the SHPO does not respond
    within 30 days of receipt of the Packet, the historic preservation
    review process is deemed complete after the licensee provides the
    Commission with a copy of the Packet and allows for the prescribed
    period for Commission review.[^24] Finally, if the licensee or the
    SHPO determines that the proposed facility will have an adverse
    effect on nearby historic properties, the historic preservation
    review process is not complete until the conclusion of a prescribed
    process to address and, if possible, mitigate the effects.[^25] If
    an Indian tribe or NHO disagrees with the licensee's determination
    or does not respond to contacts, the licensee must seek guidance
    from the Commission and cannot proceed without the Commission's
    concurrence.[^26]

8.  As a wireless licensee, Panhandle is subject to the Commission's
    environmental rules, including the specific endangered species,
    historic preservation, and other environmental review requirements.
    On October 21, 2005, Panhandle began construction of an antenna
    structure in Hough, Oklahoma, without first determining whether the
    proposed facility might affect or be likely to jeopardize listed or
    proposed threatened or endangered species or designated critical
    habitats. In addition, Panhandle began construction without first
    completing the requisite pre-construction review pursuant to Section
    106 of the NHPA[^27] to determine if the proposed facilities may
    affect properties listed or eligible for listing in the National
    Register. On November 3, 2005, Panhandle completed construction of
    the antenna structure; however, it was not until November 16, 2005
    that Panhandle notified the Oklahoma SHPO that it had constructed
    the facility.[^28] On December 8, 2005, Panhandle notified the
    Commission of the construction of the antenna structure and fully
    disclosed the violation.[^29]

9.  After it had constructed its antenna structure without first
    completing the requisite endangered species and historic
    preservation pre-construction reviews, Panhandle retained
    environmental consultant Terracon to fulfill its obligations under
    Section 1.1307. Terracon conducted a review of the site and facility
    and determined that the facility had no significant effect on the
    environment. Specifically, Terracon determined that Panhandle's
    facility did not affect species or habitats protected under the
    ESA;[^30] that no historic properties were in the APE for visual or
    direct effects;[^31] that no cultural resources were observed during
    the course of Terracon's survey;[^32] and that no cultural resources
    were damaged by construction activities at the tower location.[^33]
    In the course of this review, Panhandle attempted to obtain the
    views of the Oklahoma SHPO consistent with the Nationwide Agreement,
    but was told that the relevant state agencies would not comment
    because the tower had already been constructed.

10. On December 7, 2005, Panhandle sought to identify interested Indian
    tribes and solicit their views by submitting the site to the
    Commission's Tower Construction Notification System ("TCNS"). The
    TCNS notification was sent by the Commission to all
    federally-recognized Indian tribes that had identified the Hough,
    Oklahoma area as within their area of geographic preference. Several
    of these tribes responded that they had no interest in the site. On
    January 24, 2006, after two unsuccessful attempts by Panhandle to
    contact the Jicarilla Apache Nation, the Wichita and Affiliated
    Tribes, the Cheyenne-Arapaho Tribes of Oklahoma, the Seminole Nation
    of Oklahoma, and the Northern Cheyenne Tribe, Panhandle referred the
    site to the Commission staff for follow-up contact.[^34]
    Accordingly, on February 22, 2006, the Commission staff sent a
    letter to the tribes that failed to respond giving them a final
    20-day period to indicate an interest in the site. This 20-day
    period expired without any response from any of the referenced
    tribes.

11. On February 16, 2006, Terracon submitted a request to USFWS to
    concur with Terracon that the proposed structure had no effect on
    species or habitats protected under the ESA. On March 13, 2006,
    Panhandle submitted to the Commission a Form 620 and a NEPA Land Use
    Checklist. The documentation established that Panhandle's facility
    did not affect proposed or existing threatened or endangered species
    or critical habitats. The documentation also established that no
    listed or determined eligible National Register sites were
    identified within the APE for visual or direct effects, and that
    there was no other evidence of cultural resources in the project
    area.[^35]

12. On August 28, 2006, the Wireless Telecommunications Bureau ("WTB")
    sent Panhandle a Letter of Inquiry ("LOI").[^36] In its response to
    the LOI,[^37] Panhandle acknowledges that it constructed its antenna
    structure before completing the environmental and historic
    preservation review requirements.[^38] According to Panhandle, the
    failure in its process was "completely unintentional and resulted
    from an inadvertent oversight."[^39] Panhandle states that, after
    the company realized its error, it contacted appropriate agencies,
    completed the required documentation, and instituted new policies to
    ensure that all regulatory requirements are met before it constructs
    any new communications facilities.[^40] After receiving Panhandle's
    LOI response, the WTB referred the matter to the Enforcement Bureau
    for possible enforcement action.

#### III. DISCUSSION {#iii.-discussion .Style-Heading-4-+-Left}

13. Under Section 503(b)(1)(B) of the Communications Act of 1934, as
    amended ("Act'),[^41] and Section 1.80(a)(1) of the Rules,[^42] any
    person who is determined by the Commission to have willfully or
    repeatedly failed to comply with any provision of the Act or any
    rule, regulation, or order issued by the Commission shall be liable
    to the United States for a forfeiture penalty.[^43] To impose such a
    forfeiture penalty, the Commission must issue a notice of apparent
    liability, and the person against whom such notice has been issued
    must have an opportunity to show, in writing, why no such forfeiture
    penalty should be imposed.[^44] The Commission will then issue a
    forfeiture if it finds by a preponderance of the evidence that the
    person has violated the Act or a Commission rule.[^45]

14. The record establishes that Panhandle commenced and completed
    construction of its antenna structure in Hough, Oklahoma, prior to
    completing the requisite endangered species review and prior to
    submitting the required Form 620 to the Oklahoma SHPO and receiving
    the recommendation of the Oklahoma SHPO. The record also establishes
    that Panhandle commenced and completed construction at the Hough,
    Oklahoma site prior to notifying interested Indian tribes of its
    intention to construct. Thus, we find that Panhandle commenced and
    completed construction at the Hough, Oklahoma site prior to
    concluding the environmental and historic preservation review
    process in apparent willful violations of Sections 1.1307(a)(3) and
    1.1307(a)(4) of the Rules.[^46] Based on our finding, and consistent
    with Section 503(b)(1)(B) of the Act and Section 1.80(a)(1) of the
    Rules, we find it appropriate to propose a forfeiture penalty
    against Panhandle.[^47]

15. Section 503(b)(2)(B) of the Act authorizes the Commission to assess
    forfeitures against common carriers of up to \$130,000 for each
    violation, or each day of a continuing violation, up to a maximum of
    \$1.325 million for a single act or failure to act.[^48] In
    determining the appropriate forfeiture amount, Section 503(b)(2)(D)
    of the Act[^49] directs the Commission to consider "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."

16. The Commission has established base forfeiture amounts for certain
    violations,[^50] but has not specified a base forfeiture amount for
    constructing a facility prior to completing historic preservation or
    other environmental reviews required under Section 1.1307(a) of the
    Rules. Nevertheless, the Commission has stated that "any omission of
    a specific rule violation from the list \... \[establishing base
    forfeiture amounts\] should not signal that the Commission considers
    any unlisted violation as nonexistent or unimportant. The Commission
    expects, and it is each licensee's obligation to know and comply
    with all Commission's rules."[^51] Thus, the Commission retains its
    discretion to issue forfeitures on a case-by-case basis.[^52] Having
    considered the statutory factors and as explained below, we propose
    a base forfeiture amount of \$7,000.

17. In determining the appropriate base forfeiture amount, we consider
    the nature of Panhandle's violations. The Commission has long
    required licensees to submit environmental assessments, perform
    environmental review and obtain Commission approval before they
    construct facilities that *may* have a significant effect on the
    environment.[^53] The Commission has explained that any construction
    delay resulting from requiring pre-construction environmental review
    "is more than offset by the public interest benefits of ensuring, in
    compliance with Federal environmental statutes, that no potentially
    irreversible harms to the environment occurs."[^54] We also note
    that the Commission has determined that \$10,000 is the appropriate
    base forfeiture amount for violations of other environmental rules,
    specifically, the radio frequency radiation exposure limits set
    forth in Section 1.1307(b), notwithstanding the absence of an
    established base forfeiture amount in the rules.[^55] While we think
    that failure to comply with Sections 1.1307(a)(3**)** and
    1.1307(a)(4) are serious violations and may have a significant
    effect on threatened and endangered species, critical habitats, and
    historic properties, such violations do not potentially jeopardize
    public health and safety, as do violations of the radio frequency
    radiation exposure limits. We thus find that a lower base forfeiture
    amount of \$7,000 is appropriate for violations of the environmental
    and historic preservation review requirements of Sections
    1.1307(a)(3) and 1.1307(a)(4) of the Rules.

18. This \$7,000 base forfeiture amount is subject to adjustment,
    however.[^56] We find that Panhandle is entitled to a downward
    adjustment of the proposed forfeiture based on its voluntary
    disclosures to Commission staff, and prompt efforts to address
    endangered species and historic preservation concerns by consulting
    with relevant expert agencies and Commission staff, *prior* to the
    Commission's initiation of an investigation. Accordingly, consistent
    with precedent,[^57] we reduce the proposed forfeiture amount from
    \$7,000 to \$5,600.

#### IV. CONCLUSION {#iv.-conclusion .Style-Heading-4-+-Left}

19. We propose a forfeiture of \$5,600 against Panhandle for its failure
    to comply with the rules regarding threatened or endangered species
    and critical habitats, as well as the historic preservation review
    requirements, prior to constructing its facility in apparent willful
    violations of Sections 1.1307(a)(3) and 1.1307(a)(4) of the Rules.

    **V. ORDERING CLAUSES**

20. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Section 1.80 of the Rules, Panhandle Telecommunications
    Systems, Inc., **IS** hereby **NOTIFIED** of its **APPARENT
    LIABILITY** **FOR A FORFEITURE** in the amount of \$5,600 for its
    apparent willful violations of Section 1.1307(a)(3) and 1.1307(a)(4)
    of the Rules.

21. **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 for Forfeiture, Panhandle Telecommunications
    Systems, Inc. **SHALL PAY** the full amount of the proposed
    forfeiture or **SHALL FILE** a written statement seeking reduction
    or cancellation of the proposed forfeiture.

22. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within 30 days of the release of this
    Order. If the forfeiture is not paid within the period specified,
    the case may be referred to the Department of Justice for collection
    pursuant to Section 504(a) of the Act.[^58] Payment of the
    forfeiture must be made by check or similar instrument, payable to
    the order of the Federal Communications Commission. The payment must
    include the NAL/Acct. No. and FRN No. referenced above. Payment by
    check or money order may be mailed to Federal Communications
    Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by
    overnight mail may be sent to Mellon Bank/LB 358340, 500 Ross
    Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire transfer
    may be made to ABA Number 043000261, receiving bank Mellon Bank, and
    account number 911-6106. Requests for payment of the full amount of
    the NAL under an installment plan should be sent to: Associate
    Managing Director -- Financial Operations, 445 12^th^ Street, S.W.,
    Room 1-A625, Washington, D.C. 20554.[^59]

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

24. 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 principles; 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.[^60]

25. **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 Marjorie Spivak, Esq.,
    counsel for Panhandle Telecommunications, Inc., Bennet & Bennet
    PLLC, 10 G Street, NE, Washington, DC 20002.

FEDERAL COMMUNICATIONS COMMISSION

Kathryn S. Berthot

Chief, Spectrum Enforcement Division

Enforcement Bureau

[^1]: 47 C.F.R. §§ 1.1307(a)(3) and 1.1307(a)(4).

[^2]: 42 U.S.C. §§ 4321-4335.

[^3]: 47 C.F.R. § 1.1307.

[^4]: *See* 47 C.F.R. § 1.1311.

[^5]: *See* 47 C.F.R. § 1.1308.

[^6]: 47 C.F.R. § 1.1312.

[^7]: 16 USC §§ 1531 *et seq.*

[^8]: *See* 47 C.F.R. § 1.1307(a)(3) and Note. Alternatively, licensees
    may use other sufficient means to determine that species and
    habitats protected under the ESA would not be affected. *See* FCC
    Environmental Checklist,
    http://wireless.fcc.gov/siting/environmental-assessment.html.

[^9]: *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*").

[^10]: *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, CTIA-The Wireless Ass'n. v. FCC,* No.
    05-1008 (D.C. Cir. September 26, 2006) ("*Nationwide
    Agreement*")**.**

[^11]: Section 1.1307(a)(4) of the Rules incorporates by reference the
    Collocation Agreement and the Nationwide Agreement.

[^12]: 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, including the initiation of consultation, to
    its licensees, permittees and applicants, but the Commission remains
    ultimately responsible. *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.

[^13]: *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).

[^14]: The requirements of the Nationwide Agreement apply to Commission
    licensees, permittees, registration holders, and applicants or
    prospective applicants for a wireless or broadcast license,
    authorization or antenna structure registration. *See Nationwide
    Agreement*, 20 FCC Rcd at 1145, Appendix B, Section II. A. 2.

[^15]: "APE" refers to the geographic area within which a proposed
    communication facility "may directly or indirectly cause alterations
    in the character or use" of historic properties. *Nationwide
    Agreement,* 20 FCC Rcd at 1145, Appendix B, Section II. A. 3.

[^16]: *Id.* at 1156, Appendix B, Sections VI. C. 2; VI. C. 4.

[^17]: *Id.* at 1156, Appendix B, Section VI. C. 4. a.

[^18]: *Nationwide Agreement,* 20 FCC Rcd at 1156-1158, Appendix B,
    Section VI. D. The Nationwide Agreement requires licensees to use
    "reasonable and good faith efforts" to identify any Indian tribe or
    NHO that "may attach religious or cultural significance" to the
    nearby historic properties. *Id.* at 1149-50, Appendix B, Section IV
    B. Such efforts may include reference to the Commission's Tower
    Construction Notification System through which such tribes and
    organizations register geographical areas that encompass significant
    religious or cultural historic properties of interest. *Id. See also
    generally Clarification of Procedures for Participation of Federally
    Recognized Indian Tribes and Native Hawaiian Organizations under the
    Nationwide Programmatic Agreement,* Declaratory Ruling, 20 FCC Rcd
    17955 (2005) ("*Declaratory Ruling*").

[^19]: *See Nationwide Agreement,* 20 FCC Rcd at 1153-1154, Appendix B,
    Section V. Notice to the public may be accomplished through local
    zoning or historic preservation review proceedings.

[^20]: *Id.* at 1160, Appendix B, Section VII A. 1. The Nationwide
    Agreement attaches standardized Packets for collocated antenna
    construction (FCC Form 621) and for new tower construction (FCC Form
    620). *See Nationwide Agreement,* 20 FCC Rcd at 1180-1201, Appendix
    B, Attachments 3 and 4.

[^21]: *Id.* at 1160-61, Appendix B, Section VII. A. 2-4.

[^22]: A no effect determination signifies that there are no historic
    properties within the APE, or that there are such properties but the
    proposed facility will not alter their qualifying historic
    character. *See Nationwide Agreement,* 20 FCC Rcd at 1161, Appendix
    B, Section VII. B. 1.

[^23]: *Id.* at 1161, Appendix B, Section VII. B. 1 and 2.

[^24]: *Id.* at 1162, Appendix B, Section VII. C. 2. In cases where the
    SHPO affirmatively concurs with a licensee's determination of no
    adverse effect, the process is complete and the licensee may proceed
    without any submission to the Commission. *Id*. at 1161-62, Appendix
    B, Section VII C. 1.

[^25]: *Id.* at 1162-63, Appendix B, Section VII. C. 3-6 and D. In such
    cases, the licensee must file an EA and may not begin construction
    until the Commission makes a finding of no significant impact on the
    environment. *See* 47 C.F.R. § 1.1308. The NHPA establishes a
    procedural scheme whereby effects on historic properties must be
    considered prior to federal licensing; it does not preclude
    federally licensed actions that alter or impair historic properties.
    *See* 16 U.S.C. § 470f; *see also National Mining Ass'n v. Fowler*,
    324 F.3d 752, 755 (D.C. Cir. 2003) (noting that the NHPA does not
    impose substantive standards on federal agencies; it only requires
    federal agencies to solicit the Advisory Council's views and take
    into account the effects of its licensed actions on historic
    properties); *Davis v. Latscher*, 202 F.3d 359, 368-69 (D.C. Cir.
    2000); *City of Alexandria v. Slater*, 198 F. 3d862, 871 (D.C. Cir.
    1999), *cert. denied sub nom.,* 531 U.S. 820 (2000) (finding that
    the NHPA is a procedural not a substantive statute and thus does not
    bar federally authorized projects that significantly or adversely
    affect historic properties, it only requires that federal agencies
    consider such effects in their decision making); *Amendment of
    Environmental Rules in Response to New Regulations Issued by the
    Council on Environmental Quality, Order,* 60 RR 2d 13, 16 ¶¶ 7-8,
    note 12 (1986) (noting that the Commission may authorize actions
    that adversely affect the environment, where it concludes that "the
    public benefits outweigh the environmental consequences").

[^26]: *Nationwide Agreement*, 20 FCC Rcd at 1152, Appendix B, Section
    IV. G.

[^27]: 16 U.S.C. §§ 470 *et seq.*

[^28]: On November 17, Oklahoma Survey, which performs archaeological
    review for the Oklahoma SHPO, declined to comment on the project
    because construction of the antenna structure had already been
    completed.

[^29]: *See* Letter from Marjorie Spivak, Esq., counsel for Panhandle
    Telecommunications Systems, Inc., to Dan Abeyta, Assistant Chief,
    NEPA Adjudications, Spectrum Competition and Policy Division,
    Wireless Telecommunications Bureau, Federal Communications
    Commission (December 8, 2005).

[^30]: *See* Letter from Rebecca Murphy, Esq., counsel for Panhandle
    Telecommunications Systems, Inc., to Dan Abeyta, Assistant Chief,
    NEPA Adjudications, Spectrum Competition and Policy Division,
    Wireless Telecommunications Bureau, Federal Communications
    Commission (September 14, 2006), page 4.

[^31]: *Id.* at 1.

[^32]: *Id.*

[^33]: *Id.*

[^34]: In the *Declaratory Ruling*, the Commission clarified that once
    an applicant has made two good faith efforts over 40 days to obtain
    a response from an Indian tribe or NHO as specified in the
    Nationwide Agreement, the Commission upon notice will send a letter
    or email to the Indian tribe or NHO seeking an indication of the
    Indian tribe's or NHO's interest in participating in review of the
    proposed construction. If the Indian tribe or NHO does not respond
    within 20 days, it will be deemed to have no interest in
    pre-construction review, and the applicant's obligations with
    respect to that Indian tribe or NHO under the Nationwide Agreement
    are complete. *Declaratory Ruling*, 20 FCC Rcd at 16092.

[^35]: Because the Oklahoma SHPO declined to participate in review of
    this constructed tower, Commission staff has independently reviewed
    the submission and concurs in these determinations.

[^36]: *See* Letter from Dan Abeyta, Assistant Chief, NEPA
    Adjudications, Spectrum Competition and Policy Division, Wireless
    Telecommunications Bureau, Federal Communications Commission, to
    Marjorie Spivak, Esq., counsel for Panhandle Telecommunications
    Systems, Inc. (August 28, 2006).

[^37]: *See* Letter from Rebecca Murphy, Esq., counsel for Panhandle
    Telecommunications Systems, Inc., to Dan Abeyta, Assistant Chief,
    NEPA Adjudications, Spectrum Competition and Policy Division,
    Wireless Telecommunications Bureau, Federal Communications
    Commission (September 14, 2006).

[^38]: *Id.* at 1.

[^39]: *Id.* at 7.

[^40]: *Id.* at 6 and 7.

[^41]: 47 U.S.C. § 503(b)(1)(B).

[^42]: 47 C.F.R. § 1.80(a)(1).

[^43]: 47 U.S.C. § 503(b)(1)(B) and 47 C.F.R. § 1.80(a)(1).

[^44]: *See* 47 U.S.C. § 503(b)(4); 47 C.F.R. § 1.80(f).

[^45]: *See, e.g.,* *SBC Communications, Inc.*, 17 FCC Rcd 7589, 7591, ¶
    4 (2002).

[^46]: Section 312(f)(1) of the Act defines "willful" as "the conscious
    and deliberate commission or omission of \[any\] act, irrespective
    of any intent to violate" the law. 47 U.S.C. § 312(f)(1). The
    legislative history of Section 312(f)(1) of the Act clarifies that
    this definition of willful applies to both Sections 312 and 503(b)
    of the Act, H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982),
    and the Commission has so interpreted the term in the Section 503(b)
    context. *See, e.g., Southern California Broadcasting Co.,* 6 FCC
    Rcd 4387, 4388 (1991) ("*Southern California*"). Because Panhandle
    consciously and deliberately constructed this facility, its failure
    to comply with the environmental review requirements was willful.
    Its claim of inadvertent mistake is not a mitigating factor and does
    not negate a finding of willfulness. *See Emery Telephone,* 13 FCC
    Rcd 23854, 23859 ¶¶ 11-12 (1998), *recon. dismissed in part and
    den'd in part,* 15 FCC Rcd 7181 (1999); *PJB Communications of
    Virginia, Inc.,* 7 FCC Rcd 2088 ¶ 5 (1992); *Bureau D'Electronique
    Appliquee, Inc.,* 20 FCC Rcd 17893, 17896 ¶¶ 9-12 (Enf. Bur. 2005);
    *Eure Family Ltd. Partnership*, 17 FCC Rcd 7042, 7043 ¶¶ 5-7 (Enf.
    Bur. 2002).

[^47]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^48]: 47 U.S.C. § 503(b)(2)(B). The Commission twice amended Section
    1.80(b)(3) of the Rules, 47 C.F.R. § 1.80(b)(3), to increase the
    maxima forfeiture amounts, in accordance with the inflation
    adjustment requirements contained in the Debt Collection Improvement
    Act of 1996, 28 U.S.C. § 2461. *See Amendment of Section 1.80 of the
    Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
    Inflation,* 15 FCC Rcd 18221 (2000) (adjusting the maximum statutory
    amounts from \$100,000/\$1,000,000 to \$120,000/\$1,200,000);
    *Amendment of Section 1.80 of the Commission's Rules and Adjustment
    of Forfeiture Maxima to Reflect Inflation,* 19 FCC Rcd 10945 (2004)
    (adjusting the maximum statutory amounts from \$120,000/\$1,200,000
    to \$130,000/\$1,325,000); *see also* 47 C.F.R. § 1.80(c).

[^49]: 47 U.S.C. § 503(b)(2)(D).

[^50]: *See The Commission's Forfeiture Policy Statement and Amendment
    of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines,* 12 FCC Rcd 17087, 17113-15 (1997), *recon. denied*, 15
    FCC Rcd 303 (1999) ("*Forfeiture Policy Statement*"); *see also* 47
    C.F.R. § 1.80.

[^51]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17099 ¶ 22.

[^52]: *Id.*

[^53]: *See Amendment of Environmental Rules,* First Report and Order,
    Gen. Docket No. 88-387, 5 FCC Rcd 2942, 2294 Appendix 3. (1990)
    (amending Section 1.1312 of the environmental rules to require that
    facilities, which are subject to geographic blanket licenses and
    which may affect the environment, be evaluated and approved "prior
    to the initiation of construction of the facility") (*"First
    Report*"), *modified,* Second Report and Order, 6 FCC Rcd 1716
    (1991) (further amending the rules to require the facilities of
    non-dominant common carriers be subject to the same pre-construction
    environmental review as wireless carriers that operate under
    geographic blanket licenses).

[^54]: *First Report*, 5 FCC Rcd at 2943 ¶ 11.

[^55]: *See A-O Broadcasting Corporation,* 17 FCC Rcd 24184, 24190 ¶ 22
    (2002), *forfeiture ordered,* 31 Communications Reg. (P&F) 411
    (2003), *recon. denied,* 20 FCC Rcd 756 (2005) (determining that the
    \$10,000 base forfeiture amount established for antenna lighting and
    other safety violations should apply to violations of Section
    1.1307(b) violation, given the serious and "public safety nature" of
    the radio frequency radiation maximum exposure limits); *see also
    Americom Las Vegas Limited Partnership,* 17 FCC Rcd 23689, 23694 ¶
    19 (Enf. Bur. 2002), *forfeiture ordered,* 19 FCC Rcd 9643 (Enf.
    Bur. 2003), *review pending*.

[^56]: *See* 47 C.F.R. 1.80(b)(4), Section II. *Adjustment Criteria for
    Section 503 Forfeitures.*

[^57]: *See Local Phone Services, Inc.,* 21 FCC Rcd 9974 ¶ 117 (2006)
    *Emery Telephone,* 13 FCC Rcd at 23858 ¶¶ 5, 10; *Victoria Cellular
    Corp.,* 7 FCC Rcd 7853, 7854 ¶¶ 10-11 (1992); *American Family
    Ass'n*, 17 FCC Rcd 18135, 18137 ¶ 10 (Enf. Bur. 2002), *recon.
    denied*, 18 FCC Rcd 2413 (Enf. Bur. 2003).

[^58]: 47 U.S.C. § 504(a).

[^59]: *See* 47 C.F.R. § 1.1914.

[^60]: *Id.*