Click here for Microsoft Word Version
********************************************************
NOTICE
********************************************************
This document was converted from
WordPerfect or Word to ASCII Text format.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).
*****************************************************************
CONSENT DECREE
1. The Enforcement Bureau (the ``Bureau'') of the Federal
Communications Commission (``Commission'' or ``FCC'') and
Natchez Communications, Inc. (``Natchez'') hereby enter
into this Consent Decree for the purpose of terminating
forfeiture proceedings arising from an investigation
related to Natchez's alleged failure to paint and light
properly the tower for Natchez's FM radio station WTYJ,
Fayette, Mississippi (the ``Station'').
BACKGROUND
2. On March 19, 1999, an agent from the FCC's New Orleans
Field Office (``Field Office'') inspected the Station and
determined that the Station was not in compliance with
the Commission's Rules (``Rules'') in that the antenna
structure registration number was not displayed, the
structure's lights were not functioning and the
structure's paint was faded and chipped such that it no
longer provided sufficiently good visibility. On March
31, 1999, the Field Office issued a Notice of Violation
(``NOV'') to Natchez citing these deficiencies.
3. Natchez responded to the NOV. On July 8, 1999, the
Field Office issued a Notice of Apparent Liability
(``NAL''), which proposed imposing a monetary forfeiture
of Ten Thousand Dollars ($10,000) for willful violation
of Section 73.1213(b) of the Rules (antenna tower with
defective paint and non-functioning lighting).1 On
August 9, 1999, Natchez opposed the NAL on the basis that
the violations were not willful and, in the alternative,
requested reduction in the forfeiture to $1,000, citing
financial hardship of the Station.
4. On March 3, 2000, the Bureau released its Forfeiture
Order,2 in which it reduced the forfeiture to $5,000.
Natchez sought reconsideration of the Forfeiture Order.
5. On August 17, 2000, the Bureau issued a Memorandum
Opinion and Order in which it denied Natchez's petition
for reconsideration and affirmed the imposition of the
$5,000 forfeiture.3
6. On September 7, 2000, the Field Office issued a new
Notice of Apparent Liability for Forfeiture (``NAL
II''),4 in which it cited Natchez for continuing
violations of Sections 17.4(g) and 17.50 of the Rules and
concluded that Natchez was apparently liable for a
forfeiture of $16,000. This action was based on a July
21, 2000, inspection of the Station.
7. On September 12, 2000, Natchez reported to the FCC's
Mass Media Bureau that it intended temporarily to cease
operation of the Station in order to dismantle the
original antenna tower that was the subject of the
Forfeiture Order and move the Station's transmission
equipment to a new antenna site and tower.5
8. On September 14, 2000, Natchez completed the demolition
of the antenna tower that had been the subject of the
Forfeiture Order.
9. On September 18, 2000, Natchez filed a petition for
further reconsideration of the Forfeiture Order and the
Memorandum Opinion and Order.
10. On September 29, 2000, Natchez reported to the FCC that
it completed construction of its modified facilities6 and
had resumed operation of the Station pursuant to program
test authority, 17 days after discontinuing operations.
11. Natchez is currently the defendant in a condemnation
and ejectment action brought by the Mississippi
Department of Transportation (``MDOT''), which seeks to
condemn the existing Natchez tower site.7 Presently,
Natchez has accrued approximately $50,000 in expenses
that it will seek to have reimbursed by MDOT, but for
which there is no certainty that MDOT will reimburse.
MDOT has informed Natchez that it will have to return to
court to obtain reimbursement of such expenses.
DEFINITIONS
12. For the purposes of this Consent Decree, the following
definitions shall apply:
(a) The ``Commission'' or ``FCC'' means the Federal
Communications Commission.
(b) The ``Bureau'' means the Enforcement Bureau of the
FCC.
(c) ``Natchez'' means Natchez Communications, Inc., a
FCC licensee in the FM radio broadcast service.
(d) ``First Enforcement Proceeding'' means the
investigation of and the series of FCC orders
concerning the conduct cited in the NOV, culminating
with the Forfeiture Order.
(e) ``Second Enforcement Proceeding'' means the
investigation of and the series of FCC orders
concerning the conduct cited in the NAL II.
(f) The ``Order'' means the Bureau's order adopting
this Consent Decree.
(g) The ``Act'' means the Communications Act of 1934,
as amended, 47 U.S.C. §§ 151 et seq.
(h) The ``Station'' refers to Natchez's FM radio
station, WTYJ, Fayette, Mississippi.
(i) ``Effective Date'' refers to the date upon which
the Order is released by the FCC.
AGREEMENT
13. Natchez 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.
14. Natchez 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 Natchez arising out of the First and Second
Enforcement Proceedings.
15. Natchez shall make a voluntary contribution to the
United States Treasury in the amount of $8,000 (the
``Contribution Payment''), payable in installments as
follows: (a) $4,000 within 45 calendar days of the
Effective Date; and (b) $4,000 within 90 days of the
Effective Date.
16. Natchez agrees to implement procedures to ensure that
the Station's antenna tower remains in compliance with
the Rules regarding antenna tower painting and lighting,
including contracting for regular maintenance of the new
antenna tower, and will secure the antenna tower site to
prevent vandalism or other damage to the antenna tower
that might prevent the tower from being properly lighted
at all times (the ``Compliance Program''). Natchez
agrees either to maintain a daily log of tower light
observations for one year following the Effective Date or
present a certification to the FCC that it has installed
an automatic alarm system that would notify its staff of
tower light outages or other problems. On request,
Natchez will make either the daily log or automatic alarm
system records available to the FCC.
17. Natchez has participated in the Alternative Broadcast
Inspection Program (``ABIP'') and received a Certificate
of Compliance dated November 20, 2000, following an
inspection of the Station facilities. Notwithstanding
Natchez's ABIP Certificate of Compliance, the FCC
expressively reserves its right to inspect the Station
(and related structures) for tower-related violations.
Nothing in this Consent Decree and adopting order limit
the FCC's right to inspect the Station (and related
structures) for Act or Rule violations.
18. Further, Natchez will further designate one Natchez
employee as the point of contact for all matters related
to the license, and will notify the FCC of this
assignment. Natchez hereby designates Diana Nutter, Vice
President of Natchez, as the employee initially
responsible for the Compliance Program. Natchez shall
notify the Enforcement Bureau at such time as a new
employee is responsible for the Compliance Program.
19. Natchez and the Bureau acknowledge and agree that this
Consent Decree shall constitute a final settlement
between them of the First and the Second Enforcement
Proceedings.
20. In express reliance on the covenants and
representations contained in this Consent Decree, the
Bureau agrees to terminate the First and the Second
Enforcement Proceedings at such time as the Bureau adopts
this Consent Decree.
21. In consideration for the termination of the First and
Second Enforcement Proceedings, Natchez agrees to the
terms, conditions, and procedures detailed in this
Consent Decree.
22. In the absence of material new evidence, the Bureau
agrees not to institute, on its own motion, any new
proceeding, formal or informal, of any kind against
Natchez for the specific violations which are the subject
of the First and Second Enforcement Proceedings.
23. In the event that the FCC or its delegated authority
find that Natchez violates Sections 17.4(g), 17.50, and
73.1213(b) of the Rules subsequent to the release of this
Consent Decree and Order, Natchez agrees that the FCC or
its delegated authority may consider the violations
documented in the First and Second Enforcement
Proceedings when determining an appropriate sanction.
24. Natchez 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 modification.
25. Natchez 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.
26. Natchez 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.
27. Natchez and the Bureau agree that, if the FCC, or the
United States on behalf of the FCC, brings a judicial
action to enforce the terms of the Order adopting this
Consent Decree, neither Natchez nor the FCC will contest
the validity of the Consent Decree or Order, and Natchez
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 Consent Decree.
28. Natchez 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.
29. Natchez agrees that any violation of the Consent Decree
or the Order adopting this Consent Decree will constitute
a separate violation of a FCC order, entitling the FCC to
exercise any rights and remedies attendant to the
enforcement of a FCC order.
30. Any provision of this Consent Decree affected by or
inconsistent with any subsequent Rule or order adopted by
the FCC will be superseded by such FCC Rule or order.
31. This Consent Decree may be signed in counterparts.
FEDERAL COMMUNICATIONS COMMISSION
By:
David H. Solomon Date
Chief, Enforcement Bureau
NATCHEZ COMMUNICATIONS, INC.
By:
James Nutter Date
President
_________________________
1 47 C.F.R. § 73.1213(b), which requires broadcast
licensees to comply with the FCC's tower painting and
lighting rules. See 47 C.F.R. §§ 17.23 and 17.1213.
2 Natchez Communications, Inc., 15 FCC Rcd 4628 (Enf.
Bur. 2000).
3 Natchez Communications, Inc., 15 FCC Rcd 18798 (Enf.
Bur. 2000) (hereinafter ``Memorandum Opinion and Order'').
4 Natchez Communications, Inc. File No. EB-00-OR-134
(Enf. Bur., New Orl. Office, rel. Sept. 7, 2000).
5 See File No. BMPH-1990511IE. See also Public Notice,
Report No. 94078, released July 7, 1999, wherein the Mass
Media Bureau approved an application for minor modification
of the Station's facilities to relocate the antenna and
transmitter to a new tower.
6 See File No. BMPH-1990511IE.
7 MDOT, through the Mississippi Transportation
Commission, moved for a formal ejectment of the Station from
its original location. Mississippi Transportation
Commission v. Natchez Communications, Inc., Chancery Court
of Jefferson County, Mississippi, Cause No. 98-0152.