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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
RADIO & INVESTMENTS, INC. ) File No. EB-03-IH-0481
) FRN No. 0006638720
Licensee of Stations KFRA(AM) ) Facility ID No. 22307
and ) Facility ID No. 22310
KDDK(FM), )
Franklin, Louisiana
ORDER
Adopted: January 15, 2005
Released: January 18, 2005
By the Chief, Enforcement Bureau:
1. The Enforcement Bureau (the ``Bureau'') has been
investigating whether Radio & Investments, Inc.
(``RII''), licensee of Stations KFRA(AM) and
KDDK(FM) (formerly KFMV(FM)), Franklin, Louisiana,
has engaged in an unauthorized transfer of control
of the stations and violated various technical
requirements, contrary to the Communications Act of
1934, as amended, and the Commission's rules.
2. By this Order, we adopt the attached Consent
Decree entered into between the Bureau and RII,
which is incorporated by reference herein.
3. We have reviewed the Consent Decree and
evaluated the circumstances underlying the Bureau's
investigation. We believe that the public interest
would be served by adopting the Consent Decree and
terminating the investigation.
4. ACCORDINGLY, IT IS ORDERED that, pursuant to
section 4(i) of the Communications Act of 1934, as
amended,1 and sections 0.111 and 0.311 of the
Commission's rules,2 the Consent Decree attached
hereto IS ADOPTED.
5. IT IS FURTHER ORDERED, that the investigation
by the Enforcement Bureau IS TERMINATED.
6. IT IS FURTHER ORDERED, that copies of this
Order shall be sent by certified mail, return
receipt requested to Kenneth R. Noble II, President,
Radio & Investments, Inc., 308
Verdunville Road, Franklin, Louisiana 70538, and to its
counsel, Aaron Shainis, Esq., Shainis & Peltzman, Chartered,
1850 M Street, N.W., Suite 240, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
CONSENT DECREE
I. Introduction
1. This Consent Decree is entered into by the
Enforcement Bureau of the Federal Communications Commission
and Radio & Investments, Inc., the licensee of Stations
KFRA(AM) and KDDK(FM), Franklin, Louisiana.
II. Definitions
2. For the purposes of this Consent Decree, the
following definitions shall apply:
a) ``RII'' refers to Radio & Investments, Inc.,
a Louisiana corporation, and its successors and
assigns to the extent indicated in Paragraph 14
below;
b) ``Bureau'' means the Enforcement Bureau of
the Federal Communications Commission;
c) ``Parties'' means the Bureau and RII;
d) ``Non-Related Company'' means a company or
organization in which Kenneth R. Noble II, K.
Ray Noble III or R. Joseph Noble, individually
or collectively, is not an officer, director,
partner, member, manager or holder (either
directly or indirectly) of an ownership
interest.
e) ``Commission'' or ``FCC'' means the Federal
Communications Commission;
f) ``Engineer'' means a registered professional
engineer who is experienced in broadcasting
operations and regulations and who is retained
by RII;
g) ``RII Stations'' means Station KFRA(AM)
(Facility ID No. 22307) and Station KDDK(FM)
(formerly KFMV(FM)) (Facility ID No. 22310),
both licensed to Franklin, Louisiana;
h) ``Licenses'' means all authorizations,
permits and licenses issued by the Commission
in connection with the operation of the RII
Stations;
i) ``Act'' means the Communications Act of 1934,
as amended, 47 U.S.C. Section 151 et seq.;
j) ``Rules'' means the Commission's regulations
set forth in Title 47 of the Code of Federal
Regulations;
k) ``Order'' means an order of the Bureau
adopting this Consent Decree;
l) ``Effective Date'' means the date on which
the Bureau releases the Order;
m) ``Checklists'' means the FCC's Broadcast
Self-Inspection Checklists
(http://www.fcc.gov/eb/bc-chklsts/) as of the
Effective Date; and
n) ``Violations'' means the violations of the
Act and the Rules by RII, as set forth in Table
I, attached, which is incorporated herein and
forms a part of this Consent Decree.
III. Background
3. On June 21 and 22, 2001, the Bureau's New Orleans
Field Office attempted an inspection of the RII Stations.
That effort resulted in the commencement of an investigation
by the Bureau which revealed various Violations involving
the RII Stations by RII and its predecessor-in-interest, FM
Radio, L.C., as described in Table I.3
4. RII has committed to complete the remedial
measures and other undertakings contemplated by this Consent
Decree.
IV. Agreement
5. RII and the Bureau agree to be legally bound by
the terms and conditions of this Consent Decree. RII and
the Bureau each represent and warrant that its signatory is
duly authorized to enter into this Consent Decree on its
behalf. RII agrees that the Bureau has jurisdiction over
the matters contained in this Consent Decree.
6. RII hereby admits to having committed the
Violations.
7. In express reliance upon the undertakings
contained herein, the Bureau agrees to terminate its
investigation into the matters discussed in paragraph 3
above. The Bureau agrees that it will not use the
Violations in any action against RII and/or Kenneth R. Noble
II, provided that RII satisfies all of its obligations under
this Consent Decree. In the event that RII fails to satisfy
any of its obligations under this Consent Decree, the Bureau
may take any enforcement action available pursuant to the
Act and the Rules with respect to the Violations, any
further violations of the Act or the Rules by RII or Kenneth
R. Noble II, and/or the violation of this Consent Decree.
8. RII will make a voluntary contribution to the
United States Treasury in the amount of Twenty Thousand
Dollars ($20,000), payable in installments in accordance
with the schedule set forth on Table II, attached, which is
incorporated herein and forms a part of this Consent Decree.
RII will make each installment of this contribution on a
timely basis without further protest or recourse, by check
or similar instrument, payable to the order of the Federal
Communications Commission. Each payment must include Acct.
No. 200532080011 and FRN No. 0006638720. Any payment by
check or money order may be mailed to Forfeiture Collection
Section, Finance Branch, Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482. Any payment
by overnight mail may be sent to Bank One/LB 73482, 525 West
Monroe, 8th Floor Mailroon, Chicago, Illinois 60661. Any
payment by wire transfer may be made to ABA Number
071000013, receiving bank Bank One, and account number
1165259.
9. Within ninety (90) days from the Effective Date,
RII will inspect the RII Stations and certify, in writing
(supported by a written certification from the Engineer
participating in the inspection with respect to engineering
matters), that (a) each Violation has been remedied, and (b)
each station is in compliance with all Rules and all terms
and conditions of its Licenses.4 The Checklists will be
used as a guide for conducting such inspection and making
such certification. For each RII Station that RII either
fails or is unable to certify as having remedied each
Violation, RII must surrender for cancellation all Licenses
for that station at the time that such certification is due
pursuant to Paragraph 11 hereof. For each RII Station that
RII either fails or is unable to certify as being in
compliance with all Rules and all terms and conditions of
its Licenses, for reasons unrelated to the Violations, RII
must certify in writing that such station will come into
compliance in no less than ninety (90) days, and must
provide a written certification of compliance from RII
(supported by a written certification of compliance from the
Engineer with respect to any engineering matters) within
such period. For each RII Station that RII either fails or
is unable to certify as having come into compliance in such
time period, RII must surrender for cancellation all
Licenses for that station at the time that such
certification is due pursuant to Paragraph 11 hereof.
10. On or before January 1, 2006 (but no earlier than
December 1, 2005), and January 1, 2007 (but no earlier than
December 1, 2006), RII will inspect the RII Stations and
certify in writing (supported by a written certification of
compliance from the Engineer participating in the inspection
with respect to engineering matters) that each station is in
compliance with all Rules and all terms and conditions of
its Licenses. The Checklists will be used as a guide for
conducting each inspection and making each certification.
In the event that one or both of the RII Stations has
temporarily discontinued operation pursuant to 47 C.F.R. §
73.1740(a)(4), the inspection and certification will be
delayed until operation is resumed on both stations,
provided that any delay beyond sixty (60) days will be
deemed a failure to certify. The failure by or inability of
RII to so certify in any instance will result in enforcement
action by the Bureau against RII, at the Bureau's
discretion.
11. All certifications referenced in Paragraphs 9 and
10 above must be delivered to the Chief of the
Investigations and Hearings Division of the Bureau within
fourteen (14) days of the applicable inspection deadline.
12. RII will provide the Chief of the Investigations
and Hearings Division of the Bureau with a copy of any time
brokerage agreement, joint sales agreement or any agreement
that contemplates another party providing more than half of
the programming or commercial advertising on either of the
RII Stations, within fourteen (14) days of execution of such
agreement, for a period of five (5) years from the Effective
Date. In addition, RII will simultaneously serve on the
Chief of the Investigations and Hearings Division of the
Bureau a copy of any agreement that it files with the
Commission pursuant to section 73.3613(d) of the Rules. RII
represents and warrants that no agreement subject to this
Paragraph 12 is currently in effect.
13. RII agrees that any violation by it of this
Consent Decree, including but not limited to its failure to
make any of the payments required by Paragraph 8 hereof,
will constitute a separate violation of a Commission order
and subject RII to appropriate administrative sanctions.
14. This Consent Decree will be binding on RII's
successors and assigns, provided that in the event of an
assignment of the Licenses to a Non-Related Company, only
the obligations of Paragraph 8 will be binding on the
assignee.
15. RII 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, provided the Order
adopts the Consent Decree without change, addition or
modification.
16. RII 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. Section 1.1501 et seq., relating to the
matters discussed in this Consent Decree.
17. RII 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 change, addition or modification.
18. RII and the Bureau agree that if RII, 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 RII nor the Commission
will contest the validity of the Consent Decree or Order,
and RII and the Commission will waive any statutory right to
a trial de novo with respect to any matter upon which the
Order is based (provided in each case that the Order is
limited to adopting the Consent Decree without change,
addition, or modification), and will consent to a judgment
incorporating the terms of this Consent Decree.
19. RII and the Bureau agree that, in the event that
this Consent Decree is rendered invalid by any court of
competent jurisdiction, it will become null and void and may
not be used in any manner in any legal proceeding.
20. This Consent Decree may be signed in counterparts
and/or by telecopy and, when so executed, the counterparts,
taken together, will constitute a legally binding and
enforceable instrument whether executed by telecopy or by
original signatures.
RADIO & INVESTMENTS, INC.
By: ___________________________
Kenneth R. Noble II,
President
Date: ___________________________
ENFORCEMENT BUREAU
FEDERAL COMMUNICATIONS COMMISSION
By:
_____________________________
David H. Solomon, Chief
Date: ____________________________ TABLE I
VIOLATIONS
Violation Citation Station(s)
Unauthorized 47 U.S.C. § KFRA, KDDK
Transfer of 310(d)
Control
Failure to 47 C.F.R. §§ KFRA, KDDK
Install/Maintain 11.35, 73.1250,
EAS Equipment 73.1300,
73.1350(h)
Failure to 47 C.F.R. § KDDK
Register Antenna 17.4(a)(1), (g)
Structure and
Post
Registration
Failure to 47 C.F.R. § KFRA, KDDK
Maintain/Staff 73.1125
Main Studio
Failure to 47 C.F.R. §§ KFRA, KDDK
Designate Chief 73.1350(a)-(c),
Operator 73.1870
Excess operating 47 C.F.R. § KDDK
power 73.1560(b)
Failure to 47 C.F.R. § KFRA
conduct 73.1590(a)(6)
equipment
performance
measurements
Failure to 47 C.F.R. §§ KFRA, KDDK
maintain station 73.1800, 73.1820,
logs 73.1840
Failure to 47 C.F.R. § KFRA, KDDK
maintain public 73.3526
file and make
public file
available
TABLE II
PAYMENT SCHEDULE
Date Amount
January 17, $5007
2005
February $1363
15, 2005
March 15, $1363
2005
April 15, $1363
2005
May 16, $1363
2005
June 15, $1363
2005
July 15, $1363
2005
August 15, $1363
2005
September $1363
15, 2005
October 17, $1363
2005
November $1363
15, 2005
December $1363
15, 2005
_________________________
1 47 U.S.C. § 154(i).
2
47 C.F.R. §§ 0.111, 0.311.
3 Both FM Radio, L.C. and RII are controlled by Kenneth R.
Noble II, the President of RII. FM Radio, L.C. was the
licensee of the RII Stations until March 4, 2004, when it
consummated a pro forma assignment of the licenses of those
stations to RII. See FCC File Nos. BAL-20031224AAB and
BALH-20031224AAA.
4
The Parties agree that RII will establish its remediation
of the violation of 47 U.S.C. § 310(d) by
providing the Bureau with an affidavit or declaration from
RII's President that RII is in sole control of the
programming, personnel and finances of each RII Station.
The Parties further agree that a certification of
remediation and a certification of compliance may be made,
notwithstanding any non-material violation(s) by RII of 47
C.F.R. § 73.3526. Any such violation(s) will be deemed non-
material for purposes of this Consent Decree if the public
inspection file is substantially complete. The Parties
further agree that RII will establish its remediation of 47
C.F.R. §§ 73.1800, 73.1820 and 73.1840 by maintaining
station logs in accordance with those rules from and after
the Effective Date.