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CONSENT DECREE
I. INTRODUCTION
1. The Enforcement Bureau of the Federal Communications
Commission, ART Licensing Corp., and First Avenue
Networks, Inc., by their authorized representatives,
hereby enter into this Consent Decree to resolve an
investigation by the Bureau regarding suspected
violations of the Commission's Spectrum Manager Leasing
Arrangements Rule, as defined herein. The investigation
was undertaken pursuant to sections 4(i), 4(j), and 403
of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), and 403.
II. DEFINITIONS
2. For the Purposes of this Consent Decree, the following
definitions shall apply:
a. ``Act'' means the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151 et seq.;
b. ``Adopting Order'' means an Order of the Bureau
adopting this Consent Decree without change, addition or
modification;
c. ``ART'' means ART Licensing Corp. and includes any
affiliate, predecessor-in-interest, parent company and
any direct or indirect subsidiary of such parent company,
or other affiliated company or business, and their
successors and assigns;
d. ``ART Applications'' means the three applications that
ART filed on May 6, 2004, on FCC Forms 603, notifying the
Commission that it had entered into spectrum leasing
arrangements, bearing the following file numbers:
1726569, 1726577, and 1726591;
e. ``Bureau'' means the Enforcement Bureau of the Federal
Communications Commission;
f. ``Commission's Rules'' means the Commission's
regulations set forth in Title 47 of the Code of Federal
Regulations;
g. ``Effective Date'' means the date on which the Adopting
Order is released;
h. ``First Avenue'' means First Avenue Networks, Inc. and
includes any affiliate, predecessor-in-interest, parent
companies and any direct or indirect subsidiary of such
parent company or other affiliated company or business,
and their successors and assigns;
i. ``First Avenue Applications'' means the 12 applications
that First Avenue filed between May 6 and June 10, 2004,
on FCC Forms 603, notifying the Commission that it had
entered into spectrum leasing arrangements, bearing the
following file numbers: 1726597, 1726607, 1735203,
1760932, 1763864, 1763873, 1771933, 1760853, 1760861,
1760945, 1760958, and 1767597;
j. ``FCC'' or the ``Commission'' means the Federal
Communications Commission;
k. ``Final Order'' means that, with respect to the
Adopting Order: (1) no request for stay or similar
request is pending, no stay is in effect, the Adopting
Order has not been vacated, reversed, set aside, annulled
or suspended, and any deadline for filing such request
that may be designated by statute or regulation has
passed; (2) no timely petition for rehearing or
reconsideration of the Adopting Order, or protest of any
kind, is pending before the FCC and the time for filing
any such petition or protest is passed; (3) the FCC does
not have the Adopting Order under reconsideration or
review on its own motion and the time for such
reconsideration or review has passed; and (4) the
Adopting Order is not then under judicial review, there
is no notice of appeal or other application for judicial
review pending, and the deadline for filing such notice
of appeal or other application for judicial review has
passed;
l. ``Investigation'' means the investigation conducted by
the Bureau of compliance by ART and First Avenue with the
Spectrum Manager Leasing Arrangements Rule, in connection
with the arrangements disclosed in the ART Applications
and the First Avenue Applications;
m. ``Parties'' means the Bureau, ART, and First Avenue;
and,
n. ``Spectrum Manager Leasing Arrangements Rule'' means
Section 1.9020 of the Commission's Rules, 47 C.F.R. §
1.9020.
III. BACKGROUND
3. ART and First Avenue are commonly-owned, commercial
and/or private licensees that hold exclusive use rights
in one or more of the Wireless Radio Services referenced
in Section 1.9005 of the Commission's Rules, 47 C.F.R. §
1.9005.
4. On May 6, 2004, ART filed the ART Applications, and
between May 6 and June 10, 2004, First Avenue filed the
First Avenue Applications. Thereafter, at the request of
the Wireless Telecommunications Bureau, the Bureau
commenced the Investigation of ART's and First Avenue's
compliance with the notification requirements of the
Spectrum Manager Leasing Arrangements Rule, pursuant to
which, for spectrum manager leasing arrangements of one
year or less, the licensee must provide notification to
the Commission within 14 days of execution of the
spectrum leasing arrangement and at least ten days in
advance of commencing operation; and, for all other
spectrum manager leasing arrangements, such notification
must be provided within 14 days of execution of the
spectrum manager leasing arrangement and at least 21 days
in advance of commencing operation.
5. ART, First Avenue, and the Bureau acknowledge that any
proceeding that might result from the Investigation will
require the significant expenditure of public and private
resources. In order to conserve such resources and to
promote compliance by ART and First Avenue with the Act
and the Commission's Rules, the Parties hereby enter into
this Consent Decree in consideration of the mutual
commitments made herein.
IV. AGREEMENT
6. ART and First Avenue each agrees that the Bureau, by
delegated authority of the Commission, has jurisdiction
over it and the matters contained in this Consent Decree,
and the authority to enter into and adopt this Consent
Decree.
7. ART and First Avenue each represents and warrants that
the person executing this Consent Decree on its behalf is
a corporate officer thereof and fully authorized to bind
ART and First Avenue, respectively, to the terms and
conditions of this Consent Decree.
8. The Parties agree that this Consent Decree shall be
subject to final approval by the Bureau and shall not
take effect unless and until adopted by the Bureau in an
Adopting Order.
9. The Parties agree that this Consent Decree shall become
effective on the Effective Date. Upon the Effective
Date, the Adopting Order and this Consent Decree shall
have the same force and effect as any other order of the
Bureau and any violation of the terms of this Consent
Decree shall constitute a separate violation of a Bureau
order, entitling the Bureau to exercise any rights and
remedies attendant to the enforcement of a Bureau order.
10. In consideration for the terms and conditions set forth
herein, the Bureau agrees to terminate the Investigation.
From and after the Effective Date, in the absence of
material new evidence, the Bureau will not, on its own
motion or in response to any petition to deny or other
third-party complaint or objection, initiate, or
recommend to the Commission the initiation of, any new
proceeding against ART or First Avenue or both, formal or
informal, regarding the matters discussed in paragraph 4,
above. The Bureau further agrees that, in the absence of
material new evidence, it will not use the facts
developed in the Investigation prior to the Effective
Date to initiate on its own motion, or recommend to the
Commission, the initiation of any proceeding, formal or
informal, or take any action on its own motion against
either ART or First Avenue or both with respect to their
respective basic qualifications to be or remain a
Commission licensee. Nothing in this Consent Decree
shall prevent the Bureau from instituting, or
recommending to the Commission, new investigations or
enforcement proceedings against either ART or First
Avenue or both in the event of any alleged future
misconduct for violation of this Consent Decree, or for
violations of the Act or of the Commission's Rules,
consistent with the provisions of this Consent Decree.
11. ART and First Avenue each admits, solely for the purpose
of this Consent Decree and for FCC civil enforcement
purposes, that, in connection with the arrangements
disclosed in some of the ART Applications and the First
Avenue Applications, respectively, each acted in a manner
that was not in compliance with the notification
requirements of the Spectrum Manager Leasing Arrangements
Rule.
12. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement among them
concerning the Investigation of the matters discussed in
paragraph 4, above.
13. In consideration of the Bureau's termination of the
Investigation into the matters discussed in paragraph 4,
above, ART and First Avenue each agrees to the terms set
forth herein.
14. ART and First Avenue agree that they shall make a
voluntary contribution to the United States Treasury, for
which they shall be jointly and severally liable, in the
total amount of Twenty Thousand Dollars ($20,000), within
five (5) calendar days after the Effective Date. Such
payment shall be made by check or similar instrument,
payable to the order of the Federal Communications
Commission. Such payment shall 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.
15. ART and First Avenue each represents that it has adopted,
and is currently in the process of implementing, a
compliance plan for the purpose of ensuring future
compliance with the Commission's spectrum leasing
provisions set forth in Part 1, Subpart X of the
Commission's Rules, 47 C.F.R. § 1.9001 et seq. A summary
of each compliance plan is set forth in Attachment A
hereto. ART and First Avenue each agrees to implement
its compliance plan, to the extent that it has not
already done so, within thirty (30) days of the Effective
Date and to keep such compliance plan in effect for three
(3) years thereafter.
16. ART and First Avenue each agrees that it is required to
comply with each individual condition of this Consent
Decree. Each specific condition of this Consent Decree
is a separate condition of this Consent Decree, as
approved. To the extent that ART and/or First Avenue
fails to satisfy any condition, in the absence of Bureau
alteration of the condition, ART and/or First Avenue will
be deemed noncompliant and may be subject to possible
enforcement action, including, but not limited to,
designation of the matter for hearing, issuance of an
admonishment or imposition of a forfeiture.
17. ART and First Avenue each waives any claims that 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., relating to
the matters discussed in this Consent Decree.
18. ART and First Avenue each 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 Adopting Order. If any Party, or the United
States on behalf of the Federal Communications
Commission, brings a judicial action to enforce the terms
of this Consent Decree, the Adopting Order or both, none
of the Parties nor the Federal Communications Commission
shall contest the continuing validity of the Consent
Decree or the Adopting Order. The Parties further agree
to waive any statutory right to a trial de novo with
respect to any matter upon which the Adopting Order is
based, and they will consent to a judgment incorporating
the terms of this Consent Decree.
19. In the event that this Consent Decree is rendered invalid
by any court of competent jurisdiction, this Consent
Decree shall 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.
ENFORCEMENT BUREAU
________________________________ _______________
Kris Anne Monteith, Chief Date
ART LICENSING CORP.
___________________________________ _______________
Date
FIRST AVENUE NETWORKS, INC.
___________________________________ _______________
Date
ATTACHMENT A
COMPLIANCE PLAN OF FIRST AVENUE NETWORKS, INC.
First Avenue Networks, Inc. (``First Avenue'' or ``Company'') is
committed to full and complete compliance with the rules and
policies of the Federal Communications Commission (``FCC'' or
``Commission''). In order to ensure such compliance, and in
connection with the Consent Decree between the Enforcement Bureau
and First Avenue, to which this document is appended, as
Attachment A thereto, within thirty (30) days of the Effective
Date (as defined in the Consent Decree), First Avenue will
implement, and keep in effect for a term of three (3) years
thereafter, the following Compliance Plan Regarding Spectrum
Leasing Arrangements and Agreements (the ``Compliance Plan''):
1. Within ninety (90) days of the Effective Date, counsel
familiar with FCC spectrum leasing rules and policies will
conduct training sessions for all First Avenue personnel
engaged in spectrum leasing arrangements and agreements
(``Covered Employees''). In addition, all new Covered
Employees of First Avenue will undergo such training within
sixty (60) days of the commencement of their employment.
First Avenue also will provide refresher training for all
Covered Employees on at least an annual basis. First Avenue
will consult with private attorneys familiar with FCC spectrum
leasing rules and policies in connection with the obligations
set forth in this Consent Decree, including this Compliance
Plan.
2. First Avenue will prepare and distribute, to all Covered
Employees, a written compliance guide that sets forth First
Avenue and Commission rules and policies for spectrum leasing
arrangements and agreements. First Avenue will update the
guide, as necessary.
3. First Avenue will designate an employee familiar with the
Commission's rules and policies relating to spectrum leasing
arrangements and agreements to review all spectrum leasing
arrangements and agreements before they are entered by the
parties (the ``Compliance Officer'').
4. The Compliance Officer will review each spectrum leasing
arrangement and agreement to identify whether the arrangement
or agreement is a de facto transfer or spectrum manager
arrangement or agreement in accordance with the FCC's rules
and policies.
5. The Compliance Officer will review each spectrum leasing
arrangement and agreement to ensure that it complies with the
requirements contained in Section 1.9000 et seq. of the
Commission's rules, 47 C.F.R. § 1.9000 et seq., as such rules
may be amended from time to time during the term of this
Compliance Plan, including, but not limited to, inclusion of
Commission-mandated provisions in each arrangement or
agreement and assurance that each spectrum leasing arrangement
or agreement does not constitute an assignment, or sale of the
license or transfer of control of the license holder.
6. The Compliance Officer will review each spectrum leasing
arrangement or agreement to ensure that it is signed by
authorized personnel of each signatory thereto.
7. Upon execution of each spectrum leasing arrangement or
agreement, the Compliance Officer will ensure that all
required documents, including, but not limited to all
applications and notifications, are filed in a timely manner
with the FCC in accordance with FCC rules and policies.
8. The Compliance Officer will ensure that a copy of each
spectrum lease arrangement and/or agreement is maintained in
the Company's records and will make it available to the
Commission, promptly upon request.
9. The Compliance Officer will ensure that the FCC is notified
in writing regarding any substantial and significant change in
the information furnished by First Avenue in each application,
notification and/or other submission relating to a spectrum
leasing arrangement and/or agreement.
10. The Compliance Officer will ensure that each spectrum
leasing arrangement and agreement complies with all rules and
policies regarding spectrum leasing that the FCC has
promulgated or will promulgate during the term of the
Compliance Plan.
COMPLIANCE PLAN OF ART LICENSING CORP.
ART Licensing Corp. (``ART'' or ``Company'') is committed to full
and complete compliance with the rules and policies of the
Federal Communications Commission (``FCC'' or ``Commission'').
In order to ensure such compliance, and in connection with the
Consent Decree between the Enforcement Bureau and ART, to which
this document is appended, as Attachment B thereto, within thirty
(30) days of the Effective Date (as defined in the Consent
Decree), ART will implement, and keep in effect for a term of
three (3) years thereafter, the following Compliance Plan
Regarding Spectrum Leasing Arrangements and Agreements (the
``Compliance Plan''):
1. Within ninety (90) days of the Effective Date, counsel
familiar with FCC spectrum leasing rules and policies will
conduct training sessions for all ART personnel engaged in
spectrum leasing arrangements and agreements (``Covered
Employees''). In addition, all new Covered Employees of ART
will undergo such training within sixty (60) days of the
commencement of their employment. ART also will provide
refresher training for all Covered Employees on at least an
annual basis. ART will consult with private attorneys
familiar with FCC spectrum leasing rules and policies in
connection with the obligations set forth in this Consent
Decree, including this Compliance Plan.
2. ART will prepare and distribute, to all Covered Employees, a
written compliance guide that sets forth ART and Commission
rules and policies for spectrum leasing arrangements and
agreements. ART will update the guide, as necessary.
3. ART will designate an employee familiar with the
Commission's rules and policies relating to spectrum leasing
arrangements and agreements to review all spectrum leasing
arrangements and agreements before they are entered by the
parties (the ``Compliance Officer'').
4. The Compliance Officer will review each spectrum leasing
arrangement and agreement to identify whether the arrangement
or agreement is a de facto transfer or spectrum manager
arrangement or agreement in accordance with the FCC's rules
and policies.
5. The Compliance Officer will review each spectrum leasing
arrangement and agreement to ensure that it complies with the
requirements contained in Section 1.9000 et seq. of the
Commission's rules, 47 C.F.R. § 1.9000 et seq., as such rules
may be amended from time to time during the term of this
Compliance Plan, including, but not limited to, inclusion of
Commission-mandated provisions in each arrangement or
agreement and assurance that each spectrum leasing arrangement
or agreement does not constitute an assignment, or sale of the
license or transfer of control of the license holder.
6. The Compliance Officer will review each spectrum leasing
arrangement or agreement to ensure that it is signed by
authorized personnel of each signatory thereto.
7. Upon execution of each spectrum leasing arrangement or
agreement, the Compliance Officer will ensure that all
required documents, including, but not limited to all
applications and notifications, are filed in a timely manner
with the FCC in accordance with FCC rules and policies.
8. The Compliance Officer will ensure that a copy of each
spectrum lease arrangement and/or agreement is maintained in
the Company's records and will make it available to the
Commission, promptly upon request.
9. The Compliance Officer will ensure that the FCC is notified
in writing regarding any substantial and significant change in
the information furnished by ART in each application,
notification and/or other submission relating to a spectrum
leasing arrangement and/or agreement.
10. The Compliance Officer will ensure that each spectrum
leasing arrangement and agreement complies with all rules and
policies regarding spectrum leasing that the FCC has
promulgated or will promulgate during the term of the
Compliance Plan.