MEMORANDUM OF UNDERSTANDING BETWEEN
THE FEDERAL COMMUNICATIONS COMMISSION AND
BNSF RAILWAY COMPANY
1. PURPOSE AND PARTIES
The Federal Communications Commission ("FCC" or "Commission") and BNSF
Railway Company ("Raihoad") (collectively, the "Patties") entei into this Memoiandurn
of Understanding ("MOU") regarding compliance with the Enviroiimental Rules' relating
to the past construction of wireless communications facilities, towers, equipment cabinets
and associated structures for positive train control ('TIC") systems.2 This MOU
dischaiges the Parties' obligation undei the Envuonmental Rules applicable to Railioad's
construction prior to and including May2013 of wireless communications facilities used
for PTC.
The FCC is an independent federal agency created by the Communications Act of 1934,
47 U.S.C. § 151 ci seq. (the "Act"). The Act grants the FCC authority to establish rules
and procedures for the licensing of non-federal government communications services.
lJndei the National Histoiic Pieservation Act ("NHPA"), 16 U S C § 470f, the FCC is
i equtied to take into account the effects of certain of its undet takmgs on histot ic
properties included in or eligible for inclusion in the National Register of Historic Places
("National Registei") Undei the National Envitonmental Policy Act of 1969 ("NEPA"),
42 U.S.C. § 4332, the FCC is requiredto take into account the effect of certain of its
actions on the human environment. As relevant here, under the Act and related FCC
rules, decisions and policies, the FCC regulates the construction of structures built for the
sole oi piimaiy puipose of supporting FCC-licensed antennas and then associated
facilities.
Railroad is a Class 1 freight railroad operating on 32,500 route miles of track in 28 states
and two Canadian piovinces, and is a top tiansportei in North Arneiica of consumei
goods, giain and agucultuial pioducts, low-sulfui coal, and industiial pioducts such as
petroleum, chemicals, and asphalt.
"Environmental Rules" means the National Environmental Policy Act of 1969, Pub. L. No. 9 1-190, 83
Stat 852 (1970), as amended (codified at 42 U S C § 4321 4347) ("NEPA"), the National Histoiic
Pieseivation Act, Pub L No 89 665, 80 Stat 915 (codified at 16 U S C § 470 et seq ) ("NHPA"), the
Communications Act of 1934, 47 U S C § 151 el seq , any othei communications laws implementing
NEPA and/oi NT-IPA, the iegulations of the Advisoiy Council on Histonc Pieservation, and the iules and
regulations of the FCC ("FCC's Rules") as related to NEPA and/or NHPA.
2 This MOU includes wneless communications facilities that weie constiucted foi PTC, as well as
collocations on existing facilities that weic adapted foi PlC use
This MOU includes one attachment, Cultural Resource Fund (Attachment A), which is
incorporated by reference and made a part of this MOU
II. BACKGROUND
The Environmental Rules require applicants and licensees to consider whether their
proposed facilities would have a si:gnificant environmental effect, including whether the
facilities would affect historic properties listed or eligible for listing in the National
Register, including sites of religious and cultural significance to Tribal Nations.3
in 2008, Congress enacted the Rail Safety Improvement Act of 2008 ("RSIA"), Pub. L.
No 110-432, that iequiles all Class I fieight and passengei iailioads by Deceinbei 31,
2015 to deploy and commence opei ation of intel opeiable PTC systems on all lines that
caiiy poison- oi toxic-by-inhalation hazaidoiis mateiials and five million gioss tons oi
more of annual traffic, and on any main rail line tracks over which intercity or commuter
iail passengei tiain seivice is iegulaily piovided Railioad is a Class I fleight iaihoad,
and is required by the RSIA to commence operation of PTC on its covered tracks by the
Congressionally mandated deadline, To deploy PTC, Railroad must construct wireless
communications facilities necessary to support wireless antennas and other
communications equipment.
Prior to and including May2013, Railroad. constructed PTC wireless communications
facilities in compliance with the requnements set foith in the RSIA On Januaiy 31,
2014, Railroad provided the FCC with a letter containing information regarding all
previously constructed wireless communications facilities constructed for PTC
potentially requiring review under the Environmental Rules, including the number of
facilities that had been constructed, the date of each construction, and their location. On
January 23, 2014, the FCC and Railroad entered into a Tolling Agreement to toll the
statute o.f limitations for any applicability of the Environmental Rules to PTC wireless
communications facilities constiucted on oi aftei January 23, 2014
Since May 2013, the FCC has engaged in consultation and discussions with Tribal
Nations, SHPOs, the Advisory Council on Historic Preservation ("AcHP"), and other
stakeholders regarding the applicability of the Enviromnental Rules to the PTC wireless
As used herein, the term "Tribal Nations" encompasses those Indian tribes recognized by the Secretary
of the lntei 101 pui suant to the Fedei ally Recognized Inthaii Ti ibe List Act of 1994, 25 U S C § 479a et
seq.
See Tolling Agieement between Fedeia! Communications Cornniisstoii and BNSF Railway Company
Regaiding the Constiuction of Wiieless Communications Facilities foi Positive ham Contiol (Jan 23,
20 14)("Tolling Agreement").
communications facilities constructed prior to that date. The terms of this MOU
incorporate recommendations that were raised in those consultations and discussions.
III. SCOPE OF AGREEMENT
The Parties agree that this MOU shall discharge all obligations under the Environmental
Rules, including the obligation to eligage in further consultation or discussions with any
other party, related to the Railroad's construction or installation prior to and including
May 2013 of all PlC wireless communications facilities and related components,
including wneless communications facilities and aelated components used foi PTC that
are not encompassed by the Tolling Agreement (collectively, "PTC Wireless
Communications Facilities").
IV. EFFECTIVE DATE
The MOU will become effective upon signature by all Parties below. As of the Effective
Date, the MOU shall have the same force and effect as any other order of the
Commission.
V. CULTURAL RESOURCE FUND
Railroad agrees to establish, together with other railroads subject to the PTC requirement
in the RSJA that constiucted PTC wiieless communications facilities piioi to and
including May 2013 and that have entered into Memoianda of Undei.standing with the
FCC, a Cultural Resource Fund totaling ten million dollars ($10,000,000.00) (the
"Fund") aimed at suppoiting Tubal and State cultutal and histoiic pieselvation piojects
as desciibed in Attachment A Raiutoad furthei agiees to contiibute its agieed shaie of
the Fund in a senes of foui (4) payments ovei an eighteen (18) month peuod Fuithei
details regarding the timing of contributions to the Fund and Fund administration are
provid.ed in Attachment A.
VI. COMPLIANCE PLAN
Within thirty (30) calendar days after the Effective Date, Railroad agrees to designate a
Compliance Officea, who shall be iesponsible foi developing, implementing, and
administering a Compliance Plan and ensuring that Railroad complies with the terms and
conditions of the Compliance Plan and this MOU. The Compliance Officer shall ensure
that the Compliance Plan accoids with cuiient 01 modified Envuonmental Rules and is
periodically reviewed and revised to maintain compliance with current or modified
Environmental Rules, an.d all employees whose duties relate to Environmental Rules
responsibilities are updated as needed.
Within sixty (60) calendar days after the Effective Date, Railroad agrees to establish a
Compliance Plan, including through the review, affirmation or enhancement of an
existing compliance plan, to ensure that all employees of Railroad who perform,
supervise, oversee, or manage the performance of duties that relate to Railroads
iesponsibihties undei the Envnonmental Rules applicable to all Railioad wiieless
communications facilities receive training on, and comply with, the applicable
Environmental Rules, including whether the facilities would affect historic properties
listed or eligible for listing in the National Register, including sites of religious and
cultural significance to Tribal Nations.
The Compliance Plan shall also provide for the creation and monitoring of a process to
ensure compliance with the Environmental Rules for all future construction of wireless
communications facilities The Compliance Plan shall mclude ti aimng mateiials on
building effective relationships with Tribal Nations, and seek to inform Railroad
employees of the unique and rich culture and history of Tribal Nations. A copy of
Railroads Compliance Plan will be filed with the FCC seventy five (75) calendar days
after the Effective Date.
Railroad's Compliance Officer obligations and Compliance Plan obligations under the
MOU shall expue thu ty-six (36) months aftei the Effective Date
VII. REPORTING COMMITMENT
Railroad shall submit to the Commission quarterly reports that shall detail its
performance of its duties and responsibilities under this MOU. The first such quarterly
report shall be due on the first business day that falls three months after the Effective
Date of this MOU This lepoiting commitment shall expire thiee (3) months aftei the end
of the Compliance Plan obligations. Reports shall be submitted to John D. Poutasse,
Chief, Spectrum Enforcement Division, Enforcement Bureau at John,Poutassefcc.gov,
and Jeffrey Steinberg, Deputy Chief, Spectrum & Competition Policy Division, Wireless
Telecommunications Buieau at Jeffiey Stembeig@fcc gov
VIII. SUBSEQUENT RULE, ORDER OR ACTION
The passage of legislation by Congress, and/or a written determination by the AcHP,
and/or a subsequent FCC rule or Order, that the construction of PTC Wireless
Communications Facilities by Railroad prior to and including May2013 does nOt
constitute a Fedeial action and/o a Fedeial undeitaking, and/oi is otherwise not iequiied
to undergo envii onmental 01 histoi ic pieseivation ieview undei any of the Envii onmental
Rules, shall render the MOU moot,, of no further force or effect, and.. no longer subject to
enfoicement on the date of the enactment of that legislation, detei mination, i ale oi Oi dei
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In the event that the MOU is rendered moot, existing contributions, to the Fund will
remain available for disbursement by the Administrator.
IX. INVALIDATION OF MOU BY A COURT OF LAW
If this MOU is invalidated or altered by subsequent judgment of a court of law or a
ielated settlement, and if as a iesult of that action Railioad is tequned to submit any oi all
PTC Wireless Communications Facilities built prior to and including May 2013 to the
FCC, the ACHP, or any other agency for review under any of the Environmental Rules,
or otherwise provide any mitigation or pay any penalty in connection with the PTC
Wiieless Communications Facilities, any undisbuised contubutions made by Rathoad
held by the Fund Administrator will remain available for return by the Administrator to
Railroad.
X. RESOLUTION OF STATUTORY AND REGULATORY
ENVIRONMENTAL AND HISTORIC REVIEW REQUIREMENTS
The Parties agree and acknowledge that this MOU relieves the FCC and Railroad of any
statutory and/or regulatory obligations under any of the EnvironmentaiRules With respect
to the construction prior to and including May 2013 of any PTC Wireless
Communications Facilities and that no furthei ieview undei the Environmental Rules of
such facilities for adverse effects from such construction on the human environment or on
histoiic piopeities, includmg sites of teligious and cultuial significance to Tubal Nations,
shall be iequued The Pat ties fuithei agiee and acknowledge that this MOU dischai ges
the Commission's and Railroad's obligation to engage in further consultation with
stakeholders regarding the construction prior to and including May 2013 of PTC Wireless
Communications Facilities includmg Tubal Nations, SHPOs, and the ACHP
XI. PROHIBITION ON ANY FUTURE ENFORCEMENT ACTION
In consideration of the commitments agreed to in this MOU, the FCC agrees that it will
not institute on its own motion 01 on the motion of any thud patty any new p1 ocee ding,
formal or informal, or take any new action on its own motion against Railroad concerning
any PTC Wueless Communications Facilities constiucted puoi to and including May
2013 in appat ent violation of the Environmental Rules, including the Act, om of any
process, procedure, or guidance of the Commission related to the Environmental Rules or
the Act.
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XII. TERMINATION OF TOLLING AGREEMENT
The Parties agree that the termination dateof the Tolling Agreement will be the Effective
Date as defined in Section IV of this MOU, and that the Tolled Peiiod shall be ended on
that date.
XIII. NO PRIVATE CAUSE OF ACTION and DISCLAIMER
Nothing in this MOU creates a private cause of action for any third party. Nothing in this
MOU constitutes a legal determination concerning the applicability of any statute or law.
Nothing in this MOU waives, modifies, or otherwise changes any Commission rule or
oidei governing Railroad, oi imposes any obligation on Railroad othei than those
commitments explicitly descubed in this MOU
XIV. NO ADMISSION OF LTABILIITY
Nothing in this MOU shall be construed as an admission by Railroad of any violation of
any provision of the Environmental Rules or any provision of the Act or the
Commission's Rules, or of any process, procedure, or guidance of the Commission, nor
does Railioad admit any liability oi wrongdoing ausmg out of any of the foiegoing
Nothing in this MOU shall be construed as an admission by Railroad that the FCC's
interpretafion of the Environmental Rules is legally valid and enforceable.
XV. NON-COMPLIANCE
Should Railroad materially fail to perform any of its obligations under Sections V, VI, or
VII heieundei and fail to iernedy such obligation within thirty (30) calendai days aftei
receiving written notice from the Fc,C of such failure and an opportunity to cure this
alleged failure: (a) the provisions of Sections X and XI above shall become inoperative
and the Commission shall have recourse to any actions and remedies that would
othei wise have been available to it had this MOU not been in effect, and (b) the tei ins of
the Tolling Agi eement shall be temstated foi six (6) months aftei the date of the breach
Railroad shall report any future non-compliance with the Environmental Rules and with
the terms and conditions of this MOU within thirty (30) calendar days after its discovery
of such noncompliance. Such reports shall include a detailed explanation of i) each
instance of such noncompliance; (ii) the steps that Railroad has taken or will take to
iemedy such noncompliance, (iii) the schedule on which such pioposed iemedial actions
will be taken, and (iv) the steps that Raihoad has taken oi will take to pi event the
recurrence of:any such noncompliance. Reports of future non-compliance with the
Envitomnental Rules shall not be deemed a failure to satisfy Raihoad's obligations undei
Section V, VI, oi VII, and shall not iendei the piovisions of Section X and XI
inoperative. All reports of noncompliance shall be submitted to John D. Poutasse, Chief,
Spectrum Enforcement Division, Enforcement Bureau at John.Poutasse.fcc.gov, and
Jeffrey Steinberg, Deputy Chief, Spectrum & Competition Policy Division, Wireless
Telecommunications Bureau at Jeffrey. Steinbergfcc.gov. Railroad's reporting
obligations under this section shall expire thirty-six (36) months after the Effective Date.
XVI. COUNTERPARTS
This MOU 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.
For FEDERAL COMMUNICATIONS COMMISSION:
C. Sherman, Chief, Wireless Telecommunications Bureau
Kris A. Monteith, Acting Chief, Consumer and Governmental Affairs Bureau
Travis LeBlanc, Acting Chief, Enforcement Bureau
Date:
For BNSF RAILWAY COMPANY:
Charles Shewmake
Vice President and General Counsel
BNSF Railway Company
Date:
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ATTACHMENT A:
CULTURAL RESOURCE FUND
Railroad represents that it will establish, together with other railroads subject to the PTC
requirement in the RSIA that constructed PTC Wireless Communications Facilities prior to and
including May 2013 and that have entered into Memoranda of Understanding with the FCC
("Other PTC Railroads"), a cultural Resource Fund totaling ten million dollars ($10,000,000.00)
(the "Fund"), and contribute a total voluntary payment in an amount separately agreed to by
Railioad and the FCC ("Agieed Amount") to that Fund Contiibutions shall be held by an
Administrator in trust or in an appropriate legal vehicle.
At the time Railroad and Other PTC Railroads name the Administrator, Railroad will jointly with
the othei PTC Raihoads ielease a document iegaidmg the adimnistiative piocess of the Fund
("Fund Guidelines and Administrative Procedures"), which will provide additional information
on the structure, implementation, and administration of the Fund, the grant application and award
process, the Administrator tenure and succession, and which shall include the following
elements:
a. Administrator. The Fund shall be administered by. a neutral third party
("Administiator"), to be appointed by Raihoad and the Othei PTC Raihoads on om before
Octobem 31, 2014 SHPOs and Ti thai Nations shall be given the oppoitunity to
recommend potential Administrators and/or any possible. board or committee members
appointed by the Raihoad and Othem PTC Rathoads to woik with the Aclministi atom on
giant-making and othei administiative issues, pi ovided that the Administi atom and any
board or committee shall be selected at the sole discretion of Railroad and the Other PTC
Railroads. Subject to the provisions contained in t.his MOU and the Fund Guidelines and
Administrative Procedures, the Administrator shall have the authority to make all
determinations regarding the disbursement of grants from the Fund, and to resolve any
conflicts arising froin.the administration of the Fund. Any appeals of decisions of the
Administrator, shall be resolved as set forth in the Fund Guidelines and Administrative
Procedures.
b. Administrative Fees. The Administrator's fees and all administrative costs will be. paid
fiom the Fund, and will not constitute mome than 6% of the total Fund amount
c. Payments to the Fund. Railroad will make payments to the Fund in four equal
installments The first payment shall be made on or before June 30, 2014, with additional
payments made on oi befote Januamy 1, 2015, on oi befome June 30, 2015, and on oi
before January 1, 2016.
d, Notice of Payment. Railroad shall send electronic notification of payment to the
Administrator on the date each contributionto the Fund is made with a copy to John D,
Poutasse, Chief, Spectrum Enforcement Division, Enforcement Bureau at
John.Poutasse@fcc.gov, and Jeffrey Steinberg, Deputy Chief, Spectrum & Competition
Policy Division, Wiieless Telecommunications Buieau at Jeffiey Steinbeigfcc gay
Eligibility. All federally-recognized Tribal Nations that registered an interest in
consultation in the FCC' s Tower Construction Notification System ("TCNS") on any
area(s) within a given state on or before December 31, 2013 where PTC Wireless
Communications Facilities were constructed ("Eligible Tribe") will be eligible to apply
for a grant. SHPOs for each state where PTC Wireless Communications Facilities were
constiucted piioi to and including May 2013 will also be eligible to apply foi a giant
The FCC shall issue a Notice of Eligibility to Eligible Tribes and SHPOs that are
qualified to apply for cultural and historic preservation grants from the Fund. The Fund
Guidelines and Administrative Procedures will establish a start and end date for Eligible
Tribes and SHPOs to submit grant applications, and a deadline by which the
Administrator must make all disbursements.
f. Application Deadline. Applications for a cultural and historic preservation grant from the
Fund must be received by the date provided in the Fund Guidelines and Administrative
Pioceduies No applications ieceived aftei that deadline will be consideied foi giants
g. Scope of Grants from Fund. The purpose of the Fund is to support Tribal and State
cultuial and histoiic pieservation piogiams Piogiams eligible foi suppoit flomn the Fund
include existing cultural aiid historic preservation initiatives as well as new projects.
Eligible Tribes and SHPOs can apply for grants from the Fund to conduct or commission
field surveys, ethnographic studies or other cultural resource reports; to purchase or
enhance existing haidwaie and/oi software used foi piocessing histotic pieservation
review requests; to pay the salaries of employees or contractors hiredby an. Eligible Tribe
01 SHPO to inciease the capacity foi conducting any aspect of a cultuial 01 histoiic
pieselvatlon initiative, including futuie histoiic pieseivation ieview, fot cultuial 01
historic preservation staff training; or to engage in other related cultural and historic
preservation activities.
Railroad will provide any SHPO or Eligible Tribe with reasonable access to Railroad
property, including rights of way, for the purpose of activities conducted pursuant to a
grant from the Fund, and limited to areas in close proximity to Locations where PTC
Wireless Communications Facilities were installed. Access to Railroad property shall be
subject to standaid Raihoad safety iequu.ements, iestiictions, fees, and othei
requirements regarding third party access. Railroad retains the right to require that
applications foi access to Railioad pioperty be submitted to Railioad in wi iting oi by e -
mail at least thirty (30) calendar days prior to the requested access date.
As an alternative, Railroad may offer a SHPO or Eligible Tribe the option of
commissioning Railroad to conduct a video field suivey on the sections of tiack foi
which the grant is awarded, and limited to areas in close proximity to locations where
PTC Wneless Communications Facilities weie installed
Further information on projects eligible for grants from the Fund, as well as the basis fOr
the decision, and other considerations relevant to the grant process intended to fulfill the
puipose of this MOU will be piovided in the Fund Guidelines and Admimstiative
Procedures. The Administrator will be charged with making the final determination
regarding the eligibility of a proposal for a grant from the Fund.
Ii. Administrator Reports. The Administrator shall submit to Railroad and Other PTC
Railroads quarterly reports that shall detail disbursements made from the Fund for that
quarter, with copies to the FCC. This reporting requirement shall terminate six (6)
months aftei the last funds aie disbuised
Termination of Fund. The Fund will terminate when all contributions have been
disbuised, subject to the deadlines piovided in the Fund Guidelines and Administiative
Procedures. in the event that money remains in the Fund after all grants have been
processed, the Administrator shall be charged to assign the remaining finds in equal
portions to the National Association of Tribal Historic Preservation Officers
("NATHPO") and the National Confeience of State Historic Pieseivation Officeis
("NCSHPO").
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