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1. The Enforcement Bureau of the Federal Communications
Commission (``Commission or FCC'') and Fifth Avenue Broadcasting
Co., Inc. (``Fifth Avenue'') hereby enter into this Consent
Decree for the purpose of terminating a forfeiture proceeding
arising from an investigation of Fifth Avenue, for alleged
violations of Sections 73.1225(d)(1), 73.1350(a), 73.1690(b)(2),
73.3526(e)(1), and 73.3526(e)(12) of the Commission's Rules
2. On September 14, 2000, the Federal Communications
Commission received a complaint that Fifth Avenue had ``...re-
located its AM transmission site into another state without prior
Commission authorization...''. The complainant requested
``...immediate Commission action to require the termination of
the unauthorized and potentially dangerous operations of
WCMI(AM).'' On September 25, 2000, an FCC agent from the FCC's
Detroit, Michigan Field Office (``Field Office'') monitored
Station WCMI(AM) for transmissions. The station, however, was
not on the air at the time. On September 26, 2000, the FCC agent
conducted an inspection of Station WCMI(AM), and Fifth Avenue's
Stations WDGG(FM), and WRVC-FM. The studios of these stations
are co-located in Huntington, West Virginia. As a result of the
inspection, it was determined that WCMI(AM) had been operating
from an unauthorized location from approximately August 18, 1999,
until September 22, 2000. During the inspection, the agent also
determined that Fifth Avenue had violated Sections 73.1225(d)(1),
73.1350(a), 73.1690(b)(2), 73.3526(e)(1), and 73.3526(e)(12) of
3. On November 20, 2000, the Field Office issued a Notice
of Violation (``NOV'') to Fifth Avenue regarding WCMI(AM). On
December 4, 2000, Fifth Avenue filed a request for an extension
of time to reply to the NOV. The request was granted, and on
December 12, 2000, Fifth Avenue filed a reply. On September 21,
2001, the Field Office issued to Fifth Avenue a Notice of
Apparent Liability for Forfeiture in the amount of $20,000 for
willful and repeated violations of Sections 73.1225(d)(1),
73.1350(a), 73.1690(b)(2), 73.3526(e)(1), and 73.3526(e)(12) of
the Rules. The noted violations involved Fifth Avenue's failure
to maintain records, failure to operate WCMI(AM) according to the
terms of the station authorization by constructing and operating
from an unauthorized location, failure to file required forms,
and failure to maintain a public inspection file.
4. For the purposes of the Consent Decree, the following
definitions shall apply:
a. The ``Commission'' means the Federal
b. The ``Bureau'' means the Enforcement Bureau of the
c. ``Fifth Avenue'' means Fifth Avenue Broadcasting
Co., Inc., licensee of Stations
WCMI(AM), Ashland, Kentucky, WDGG(FM), Ashland,
Kentucky, and WRVC-FM, Catlettsburg, Kentucky.
d. The ``Order'' means the Bureau's order adopting
this Consent Decree.
e. ``Enforcement Proceeding'' means the investigation
of alleged rule violations by
Fifth Avenue culminating in the Notice of Apparent
Liability for Forfeiture.
f. ``Notice of Apparent Liability For Forfeiture''
means Fifth Broadcasting Co., Inc., File No. EB-
00-DT-779, NAL/Acct. No. 200132360003 (Enf. Bur.,
Detroit Office, rel. September 21, 2001).
5. Fifth Avenue acknowledges and agrees that the Bureau
has jurisdiction over the matters referenced in this Consent
Decree and that the Bureau has the authority to enter into and
adopt this Consent Decree.
6. Fifth Avenue and the Bureau agree that this Consent
Decree does not constitute an adjudication of the merits, or any
finding on the facts or law regarding any violations committed by
Fifth Avenue arising out of the Enforcement Proceeding, and that
it is not to be construed as an admission of any violation by
7. Fifth Avenue and the Bureau agree to the following:
a. Within thirty (30) days of the release date of the
Order, Fifth Avenue will make a voluntary contribution
to the United States Treasury by paying five (5) equal
payments of Two Thousand Dollars ($2,000.00) for a
total of Ten Thousand Dollars ($10,000.00). The first
installment payment will be due thirty (30) days after
the Order is released, with each of the four (4)
subsequent payments due in thirty (30)-day intervals
b. Fifth Avenue will continue to operate pursuant to
its existing Compliance Plan which it had put in place
upon learning of its violations to ensure that no
further violations of the Commission's Rules will
occur, with particular attention to those violations
set forth in the Notice of Apparent Liability for
Forfeiture. The Compliance Plan is administered by
Fifth Avenue's President and General Manager, with
assistance from Fifth Avenue's Operations Director. An
outline of the Plan is set forth in Attachment A
8. Fifth Avenue and the Bureau acknowledge and agree that
this Consent Decree will constitute a final settlement between
them of the Enforcement Proceeding.
9. In express reliance upon the covenants and
representations contained herein, the Bureau agrees to terminate
the Enforcement Proceeding at such time as both parties sign this
Consent Decree and the Bureau adopts this Consent Decree.
10. In consideration for the termination of the Enforcement
Proceeding, Fifth Avenue agrees to the terms, conditions, and
procedures detailed in this Consent Decree.
11. Fifth Avenue 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 Order adopting this Consent Decree,
provided the Order adopts the Consent Decree without
12. In the event that the Commission or its delegated
authority finds that Fifth Avenue violates Sections
73.1225(d)(1), 73.1350(a), 73.1690(b)(2), 73.3526(e)(1) or
73.3526(e)(12) of the Commission's Rules subsequent to the
release of this Consent Decree and Order, Fifth Avenue agrees
that the Commission or its delegated authority may consider the
violations documented in the Enforcement Proceeding when
determining an appropriate sanction.
13. Fifth Avenue and the Bureau agree that the
effectiveness of this Consent Decree is expressly contingent upon
issuance of the Order, provided the Order adopts the Consent
Decree without modification.
14. Fifth Avenue and the Bureau agree that, in the event
any court of competent jurisdiction renders this Consent Decree
invalid, the Consent Decree shall become null and void and may
not be used in any manner in any legal proceeding.
15. Fifth Avenue and the Bureau agree that, if the
Commission, or the United States on behalf of the Commission,
brings a judicial action to enforce the terms of the Order
adopting this Consent Decree, neither Fifth Avenue nor the
Commission will contest the validity of the Consent Decree or
Order and Fifth Avenue will waive any statutory right to a trial
de novo with respect to the matter upon which the Order is based,
and shall consent to a judgment incorporating the terms of this
16. Fifth Avenue agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, 5 U.S.C.
Section 504 and 47 C.F.R. Sections 1.1501 et seq.
17. Fifth Avenue agrees that any violation of the Consent
Decree or the Order adopting this Consent Decree will constitute
a separate violation of a Commission order, entitling the
Commission to exercise any rights or remedies attendant to the
enforcement of a Commission order.
18. Any provision of this Consent Decree affected by or
inconsistent with any subsequent rule or order adopted by the
Commission will be superseded by such Commission rule or order.
19. Fifth Avenue and the Bureau agree to be bound by the
terms and conditions stated in this Consent Decree.
20. Fifth Avenue and the Bureau agree that the terms and
conditions of this Consent Decree shall remain in effect for a
period of twenty-four (24) months, which shall begin on the
release date of the Order.
21. This Consent Decree may be signed in counterparts.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
FIFTH AVENUE BROADCASTING CO., INC.
Richard Michael Kirtner, President
FIFTH AVENUE BROADCASTING CO., INC.
TWO-YEAR COMPLIANCE PROGRAM
The primary purpose of this Compliance Program (the
``Program'') is to ensure for Fifth Avenue Broadcasting Co., Inc.
(``Fifth Avenue'') that an effective and meaningful procedure is
in place to detect and prevent Fifth Avenue's violation of the
FCC Rules pertaining to the operation of its radio broadcast
stations, with particular attention directed to the matters
relating to the following specified FCC Rules:
· Operation and modification of station transmission
facilities in accordance with station authorizations and filing
appropriate applications for same [Sections 73.1350(a) and
· Maintenance of station authorizations and contour maps
in appropriate station local public inspection files [Sections
73.3526(e)(1) and (4)].
· Organization and maintenance of issues/programs lists
and placement in the appropriate station local public inspection
files [Section 73.3526(e)(12)].
· Maintenance of required records, such as, the logging
of antenna impedance measurements and maintenance of separate
binders in accessible locations at station transmitter sites and
main studio locations [Section 73.1225(d)(1)].
Specifically, in order to effectuate these goals, the
following procedures will be adopted: During each year of the
Program's two (2)-year period, the Kentucky Broadcasters
Association (``KBA''), under contract with Fifth Avenue, will
conduct an inspection of station operations. Fifth Avenue will
forward the results of such inspections (including reports of
noncompliance) to the Director of the FCC Detroit Field Office.
Fifth Avenue will also place copies of the inspection reports in
its local public records file and copies will be retained by
Fifth Avenue's President/General Manager, Director of Operations
and key station staff personnel familiar with the KBA inspections
and the FCC Rules and procedures reviewed in those inspections.
In addition to the KBA annual inspections, Fifth
Avenue will conduct its own monthly compliance
checks to ensure that all appropriate FCC Rules, including but
not limited to those listed above, are being met. The monthly
checks will end when Fifth Avenue has completed twelve (12)
consecutive monthly checks that indicate complete compliance.
For the next twelve (12) months, and also subsequent to the two
(2)-year Program, Fifth Avenue will conduct its own checks on a
random basis. Finally, Fifth Avenue will conduct both during and
after the Program period, an annual training program for its
employees to review Fifth Avenue's standards and the FCC Rules
applicable to station operations.
Fifth Avenue is committed to full and complete compliance
with FCC Rules, and in order to ensure compliance, it will
incorporate this Program into its operational practices.
Ultimate responsibility for the administration of the Program is
to be held by Fifth Avenue's President/General Manager.
Responsibility for the day-to-day supervision of the Program is
to be held by Fifth Avenue's recently-named management-level
Director of Operations, and by Fifth Avenue's consulting
engineer, both of whom are to report regularly to Fifth Avenue's
President/General Manager about the results of the Program.
1 47 C.F.R. §§ 73.1225(d)(1), 73.1350(a), 73.1690(b)(2),
73.3526(e)(1), and 73.3526(e)(12).