Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
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
Microsoft Word or Adobe Acrobat version.
*****************************************************************
CONSENT DECREE
I. INTRODUCTION
1. This Consent Decree is entered into by the
Enforcement Bureau of the Federal Communications
Commission and Brevard Youth Education Broadcasting
Corporation, licensee of noncommercial educational FM
Station WCEE-LP, Melbourne, Florida.
II. DEFINITIONS
2. For the purposes of this Consent Decree, the
following definitions shall apply:
a) ``Brevard'' refers to Brevard Youth Education
Broadcasting Corporation, and its successors and
assigns;
b) ``Bureau'' means the Enforcement Bureau of
the Federal Communications Commission;
c) ``Parties'' means the Bureau and Brevard;
d) ``Commission'' or ``FCC'' means the Federal
Communications Commission;
e) ``Station'' means noncommercial educational
FM Station WCEE-LP (Facility ID No. 13563),
licensed to Melbourne, Florida;
f) ``Act'' means the Communications Act of
1934, as amended, 47 U.S.C. §§ 151 et seq.;
g) ``Rules'' means the Commission's regulations
set forth in Title 47 of the Code of Federal
Regulations;
h) ``Underwriting Laws'' means section 399B of
the Communications Act of 1934, 47 U.S.C. §
399B, and section 73.503(d) of the Commission's
rules, 47 C.F.R. § 73.503(d);
i) ``Complaints'' mean third-party complaints
received by, or in the possession of, the Bureau
alleging violation of the Underwriting Laws by
Brevard, dated September 10 and December 12,
2003;
j) ``Investigation'' means the investigation
of the allegations contained in the Complaints,
including the letters of inquiry from the Bureau
to Brevard, dated November 19, 2003, and April
8, 2004;
k) ``Order'' means an order of the Enforcement
Bureau adopting this Consent Decree;
l) ``Final Order'' means the status of the
Order after the period for administrative and
judicial review has lapsed; and
m) ``Effective Date'' means the date on which
the Bureau releases the Order.
III. BACKGROUND
3. The Bureau received the Complaints alleging that
Brevard has broadcast certain material in violation of the
Underwriting Laws over the Station. The Bureau thereafter
commenced the Investigation to determine whether Brevard
violated the Underwriting Laws in connection with such
broadcasts.
4. Brevard has acknowledged that its broadcasts
violated the Underwriting Laws and has committed to complete
the remedial measures and other undertakings contemplated by
this Consent Decree.
IV. AGREEMENT
5. Brevard and the Bureau agree to be legally bound
by the terms and conditions of this Consent Decree. Brevard
and the Bureau each represent and warrant that its signatory
is duly authorized to enter into this Consent Decree on its
behalf. Brevard agrees that the Commission has jurisdiction
over the matters contained in this Consent Decree.
6. The Parties agree that the provisions of this
Consent Decree shall be subject to final approval by the
Bureau by incorporation of such provisions by reference in
an Order.
7. The Parties agree that this Consent Decree shall
become effective on the Effective Date. Upon the Effective
Date, the 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.
8. Both the Bureau and Brevard acknowledge that any
proceeding that might result from the Investigation will be
time consuming and will require the expenditure of public
and private resources.
9. As part of the Order, the Bureau shall terminate
the Investigation and shall dismiss with prejudice the
Complaints. From and after the Effective Date, the Bureau
shall not, either on its own motion or in response to third-
party objection, initiate any inquiries, investigations,
forfeiture proceedings, hearings, or other sanctions or
actions against Brevard, or the Station, based in whole or
in part on (i) the Investigation, (ii) the Complaints, (iii)
any other similar complaints alleging violation by Brevard
of the Underwriting Laws, with respect to any broadcast of
any of the announcements specified in the Complaints
occurring prior to the Effective Date, or (iv) the
allegations contained in any of the foregoing. The Bureau
agrees that, in the absence of material new evidence, it
will not, on its own motion, initiate or recommend to the
Commission, any new proceeding, formal or informal,
regarding the matters discussed in paragraph 3, above, with
regard to broadcasts prior to the Effective Date. The Bureau
further agrees that, in the absence of material new
evidence, it will not use the facts developed in this
Investigation prior to the Effective Date to initiate on its
own motion, or recommend to the Commission, any proceeding,
formal or informal, or take any action on its own motion
against Brevard with respect to its 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 Brevard, in the event of any
alleged future misconduct for violation of this Consent
Decree or for violation of the Act or the Rules, consistent
with the provisions of this Consent Decree.
10. Brevard admits, solely for the purpose of this
Consent Decree and for FCC civil enforcement purposes, and
in express reliance on the provisions of paragraph 9 hereof,
that its broadcasts of the underwriting announcements at
issue in the Investigation are in violation of the
Underwriting Laws. Notwithstanding any other provision of
this Consent Decree, it is expressly agreed and understood
that if this Consent Decree is breached by the Bureau, or is
invalidated or modified to Brevard's prejudice by the
Commission or by any court, then the provisions of the
immediately-preceding sentence shall be of no force or
effect whatever, and Brevard shall not, by virtue of that
sentence or any other provision of this Consent Decree, be
deemed to have made any admission concerning any
announcements broadcast on the Station.
11. The Parties agree and acknowledge that this
Consent Decree shall constitute a final settlement between
them concerning the Bureau's Investigation of the matters
discussed in paragraph 3, above.
12. In consideration of the Bureau's termination of
its Investigation into these matters, Brevard agrees to the
terms set forth herein.
13. Brevard will make a voluntary contribution to the
United States Treasury in the amount of One Thousand Dollars
($1,000) within five (5) calendar days after the Effective
Date. The payment must be made by check or similar
instrument, payable to the order of the Federal
Communications Commission. The payment must include the
Acct. No. and FRN referenced above. 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. Payment by overnight
mail may be sent to Bank One/LB 73482, 525 West Monroe, 8th
Floor Mailroom, Chicago, Illinois 60661. Payment by wire
transfer may be made to ABA Number 071000013, receiving bank
Bank One, and account number 1165259.
14. As a further condition to this Consent Decree,
Brevard will institute and follow the terms of the
Compliance Plan identified in the Attachment to this Consent
Decree within thirty (30) days of the Effective Date.
15. Brevard agrees that it is required to comply with
each individual condition of this Consent Decree. Each
specific condition is a separate condition of the Consent
Decree as approved. To the extent that Brevard fails to
satisfy any condition, in the absence of Bureau alteration
of the condition, it will be deemed noncompliant and may be
subject to possible enforcement action, including, but not
limited to, designation of the matter for hearing, letters
of admonishment, or forfeitures.
16. Brevard 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 that
the Order adopts the Consent Decree without change, addition
or modification.
17. Brevard 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., relating to the
matters discussed in this Consent Decree.
18. If any Party (or the United States on behalf of
the FCC) brings a judicial action to enforce the terms of
the Order, neither Brevard nor the FCC shall contest the
continuing validity of the Consent Decree or Order. Brevard
and the Bureau further agree that they 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 that 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
FEDERAL COMMUNICATIONS COMMISSION
________________________________ _______________
David H. Solomon, Chief Date
BREVARD YOUTH EDUCATION BROADCASTING CORPORATION
___________________________________
_______________
Randy Bennett, President Date
Compliance Plan
To ensure Station WCEE-LP's full compliance with the
Underwriting Laws, Brevard will do the following:
1. Brevard will establish and maintain a review
procedure for underwriting content to be aired over
Station WCEE-LP, Melbourne, Florida. All scripts of
announcements will be reviewed, prior to broadcast,
for compliance with the Underwriting Laws.
2. Any new employee hired by Brevard will be trained
on acceptable underwriting content that complies with
the Underwriting Laws. In addition, Brevard's
employees will be required to educate themselves on an
annual basis regarding any new guidelines or changes
to the Underwriting Laws.
3. Brevard will also implement and maintain a plain
to educate prospective clients about appropriate
underwriting content and the Underwriting Laws. To
that end, it will provide a written overview of the
Underwriting Laws to each client before it accepts any
contract with the client to air material over Station
WCEE-LP. Brevard will not accept any announcement
that does not comply with the Underwriting Laws.