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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
)
)
In the Matter of )
File Number EB-05-PA-126
New Jersey Broadband, LP )
NAL/Acct. No. 200732400001
and )
FRN 0015296874
New Jersey Broadband, LLC )
)
)
ORDER
Adopted: October 26, 2006 Released: October 30, 2006
By: The Assistant Chief, Enforcement Bureau
1. The Enforcement Bureau ("Bureau") has been investigating a Wireless
Video Distribution System ("System") operated by New Jersey Broadband,
LLC, together with New Jersey Broadband, LP, of which it is the
General Partner (together "Broadband"). The System provides service to
the greater Atlantic City, New Jersey metropolitan area. The purpose
of the investigation was to determine whether Broadband violated (1)
Section 301 of the Communications Act of 1934, as amended ("Act"), 47
U.S.C. S 301, by operating without certain required Commission
authorizations; (2) Section 310(d) of the Act, 47 U.S.C. 310(d), by
participating in an unauthorized transfer of control, and (3) Section
11.35 of the Commission's rules, 47 C.F.R. S11.35, by failing to
install Emergency Alert System equipment.
2. The Bureau and Broadband have negotiated the terms of a Consent
Decree, a copy of which is attached hereto and incorporated herein by
reference. After reviewing the terms of the Consent Decree, we find
that the public interest would be served by adopting the Consent
Decree and terminating the above-captioned investigation concerning
Broadband.
3. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and the authority delegated by
sections 0.111 and 0.311 of the Commission's Rules, the attached
Consent Decree IS ADOPTED.
4. IT IS FURTHER ORDERED that the above-captioned investigation into the
matters described herein IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission and New
Jersey Broadband, LP, together with New Jersey Broadband, LLC, which is
the General Partner of New Jersey Broadband LP, (together "Broadband"),
hereby enter into this Consent Decree for the purpose of resolving the
Enforcement Bureau's investigation of compliance by Broadband with
Sections 301 and 310(d) of the Communications Act of 1934, as amended, 47
U.S.C. SS 301, 310(d), and Section 11.35(a) of the Commission's rules, 47
C.F.R. S11.35(a).
2. For purposes of this Consent Decree, the following definitions shall
apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S 151 et seq.
b. "Adopting Order" means an order of the Bureau, adopting this Consent
Decree, without any modifications adverse to Broadband.
c. "Broadband" means New Jersey Broadband, LP, and any affiliate, parent
company (including, but not limited to New Jersey Broadband, LLC),
wholly or partially owned subsidiary, and/or successors.
d. "Bureau" means the FCC's Enforcement Bureau.
e. "Commission" or "FCC" means the Federal Communications Commission.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "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 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.
h. "Inquiry" means the Bureau's investigation, which commenced with
inspections of July 22, 2004 and November 17, 2004; a telephone
conversation of August 15, 2005; direction finding measurements of
August 17, 2005; and the issuance of letters of inquiry, dated
September 9, 2004, January 4, 2005, and November 1, 2005, from the
Bureau to Broadband relating to: (a) whether Broadband's operation of
a wireless video distribution system in Mamora, New Jersey, complied
with Section 11.35(a) of the Commission's rules, 47 C.F.R. S11.35(a),
which requires the installation of Emergency Alert System equipment;
(b) whether there occurred any unauthorized operation of wireless
video distribution system channels by Broadband in violation of
Section 301 of the Act, 47 U.S.C. S301; and (c) whether there
occurred any unauthorized transfer of control of the wireless video
distribution system in Mamora, New Jersey in violation of Section
310(d) of the Act, 47 U.S.C. S310(d).
i. "Management Consulting Agreement" means the agreement entered into by
and between Orion Broadcasting Systems, Inc. and New Jersey
Broadband, L.P. on March 13, 2000, pursuant to which Broadband would
manage a wireless video distribution system operating with, inter
alia, Broadcast Radio Service and Educational Broadband Service
licenses issued to Orion Broadcasting Systems, Inc.; the agreement
provided that Orion Broadcasting Systems, Inc. would at all times
remain in control of the day-to-day operations of the system.
j. "Parties" means the Bureau and Broadband.
k. "Wireless Video Distribution System" means the system providing
service to the greater Atlantic City, New Jersey metropolitan area
through, inter alia, Broadcast Radio Service and Educational
Broadband Service licenses issued by the FCC to Orion Broadcasting
Systems, Inc. The system operated from a transmitter site in Mamora,
New Jersey, with a repeater site in Wildwood, New Jersey.
I. BACKGROUND
3. New Jersey Broadband, LP is a small, privately-held, limited
partnership, whose General Partner is New Jersey Broadband, LLC. New
Jersey Broadband, LP provided communications services to the public over
the Wireless Video Distribution System it operated in Mamora, New Jersey,
pursuant to the Management Consulting Agreement.
4. On January 5, 2006, the Wireless Telecommunications Bureau consented to
the assignment of the Broadcast Radio Service and Educational Broadband
Service licenses used in the operation of the Wireless Video Distribution
System from Orion Broadcasting Systems, Inc. to Oneida Broadband, LLC. The
assignment was consummated by the parties on March 1, 2006, the acceptance
of which by the Wireless Telecommunications Bureau became effective on
June 8, 2006. Broadband represents that it is in the process of removing
itself from any management role(s) it may have had, or has, with respect
to said Wireless Video Distribution System.
5. Broadband was, and its former operations remain, subject to the
requirements of Sections 301 of the Act, 47 U.S.C. S 301, prohibiting
unauthorized operations, Section 310(d) of the Act, 47 U.S.C. S 310(d),
prohibiting unauthorized transfers of control, and Section 11.35(a) of the
Commission's rules, 47 C.F.R. S11.35(a), requiring the installation of
Emergency Alert System equipment.
6. The Parties acknowledge that any forfeiture proceeding that might
result from the Inquiry would be time consuming and require substantial
expenditure of public and private funds and other resources. In order to
conserve such resources, to resolve the Inquiry, and to promote
Broadband's future compliance with Sections 301 and 310(d) of the Act, and
Section 11.35(a) of the Commission's rules, the Parties are entering into
this Consent Decree in consideration of the mutual commitments made
herein.
II. AGREEMENT
7. Broadband agrees to be legally bound by the terms and conditions of
this consent decree.
8. The Parties agree that the provisions of this Consent Decree shall be
subject to approval by the Bureau, by incorporation of such provisions by
reference in an Adopting Order.
9. The Parties agree that this Consent Decree shall become effective on
the date on which the Bureau releases the Adopting Order. Upon release,
the Adopting Order and this Consent Decree shall have the same force and
effect as any other order of the Commission, and any violation of the
terms of this Consent Decree shall constitute a violation of a Commission
order, entitling the Commission, or the Bureau pursuant to delegated
authority, to exercise any rights and remedies attendant to the
enforcement of a Commission order.
10. Broadband acknowledges that the Commission has jurisdiction to enforce
Sections 301 and 310(d) of the Act, 47 U.S.C. SS 301, 310(d), and Section
11.35(a) of its rules, 47 C.F.R. S11.35(a).
11. Broadband acknowledges that during a period of time while it operated
the Wireless Video Distribution System from a transmission site at Mamora,
New Jersey (with a repeater site at Wildwood, New Jersey), providing
service to the greater Atlantic City, New Jersey metropolitan area, it may
have unintentionally operated on certain frequencies which the system was
not authorized to use. Broadband also acknowledges that, notwithstanding
the Management Consulting Agreement, its operation of the Wireless Video
Distribution System without proper oversight and control by the licensee,
Orion Broadcasting Systems, Inc., may have constituted an unauthorized
transfer of control. Further, Broadband acknowledges that, during the same
time, it operated said facilities without having installed Emergency Alert
System equipment as required by S11.35(a) of the Commission's rules.
12. The Bureau acknowledges that it commenced its Inquiry with inspections
on July 22, 2004 and November 17, 2004, when an agent from its
Philadelphia Office conducted inspections of the 31 channel system
operating respectively at Wildwood and Mamora, New Jersey on frequencies
between 2500 MHz and 2686 MHz, which frequencies are allotted to the
Broadband Radio Service and Educational Broadband Service.
13. As part of the Adopting Order, the Bureau shall terminate the Inquiry.
From and after the Effective Date, in the absence of material new
information, the Bureau agrees that it will not, either on its own motion
or in response to any petition, third-party motion or objection,
complaint, or other information, initiate any inquiries, investigations,
forfeiture proceedings, hearings, or other actions, formal or informal,
against Broadband for alleged or suspected violations of Sections 301 or
310(d) of the Act, 47 U.S.C. SS 301, 310(d), and Section 11.35(a) of its
rules 47 C.F.R. S11.35(a).
14. Broadband represents that it has conducted a thorough review of its
operational procedures and developed the following Compliance Plan to
ensure its future compliance with Sections 301 and 310(d) of the Act, 47
U.S.C. SS 301, 310(d), and Section 11.35(a) of the Commission's rules, 47
C.F.R. S11.35(a).
(a) Commencing immediately upon the Effective Date, as defined in Section
2(f) hereof, Broadband will not (i) become, or request consent to become,
the licensee of any FCC-licensed radio facility; (ii) apply for any FCC
license or authorization; or, (iii) manage, or request approval to manage
any FCC-licensed radio facility. Furthermore, Broadband is in the process
of removing itself from any management role(s) it may have had, or has,
with respect to said Wireless Video Distribution System.
(b) Should Broadband not remove itself from the wireless video
distribution system business within thirty (30) days of the Consent Decree
becoming a "Final Order," then it agrees to establish a company Compliance
Manual consistent with the following:
(i) Compliance Manual. Broadband shall create, maintain and update an FCC
Compliance Manual. Company personnel shall have ready access to the
Compliance Manual and are to follow the procedures contained in it. The
Compliance Manual will, among other things, describe the operational and
equipment requirements of the Broadband Radio Service and the Educational
Broadband Service as they apply to Broadband. The Compliance Manual will
encourage Broadband personnel to contact FCC Legal Counsel with any
questions or concerns that arise with respect to FCC Compliance. Broadband
shall submit to the Bureau a final version of its Compliance Manual within
thirty (30) days after the Consent Decree becomes a "Final Order."
(ii) Designated Contact. In addition, Broadband will designate an employee
as the point of contact for regulatory compliance matters.
(iii) Review. Broadband will review the FCC Compliance Manual periodically
to ensure that it is maintained up-to-date.
15. Broadband agrees to implement its Compliance Plan, to the extent it
has not already done so, immediately upon the Effective Date and to keep
such Compliance Plan in effect for two (2) years after the Effective Date.
16. Broadband agrees that it will make a voluntary contribution to the
United States Treasury in the amount of Twelve Thousand Dollars
($12,000.00), paid in ten (10) equal monthly installments of One Thousand
Dollars ($1,000.00), and an initial payment of Two Thousand Dollars
($2,000.00). The initial payment of $2,000.00 shall be made within fifteen
(15) business days after the Adopting Order becomes a Final Order and
monthly installments thereafter shall be made on the first day of each
month. The payments shall be made by check, money order or similar
instrument, payable to the order of the Federal Communications Commission
and may be mailed to the Federal Communications Commission, P.O. Box
358340, Pittsburgh, PA 15251-8340. The payment should reference NAL/Acct.
No. 200632400003 and FRN 0015296874. Payment by overnight mail may be sent
to Mellon Bank Lockbox 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.
17. Broadband 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, provided no modifications are made to the Consent Decree adverse to
Broadband. If the Bureau, the Commission or the United States acting on
its behalf, brings a judicial action to enforce the terms of the Adopting
Order or this Consent Decree, or both, Broadband will not contest the
validity of this Consent Decree or of the Adopting Order. If Broadband
brings a judicial action to enforce the terms of the Adopting Order or
this Consent Decree, or both, neither the Commission nor the United States
will contest the validity of this Consent Decree or of the Adopting Order.
18. The Parties agree that this Consent Decree and Broadband's voluntary
contribution are for settlement purposes only and do not constitute an
admission, denial, adverse finding, adverse final action, adverse
adjudication on the merits, or waiver of legal rights except as otherwise
expressly set forth herein.
19. Broadband's decision to enter into this Consent Decree is expressly
contingent upon the Bureau's issuance of an Adopting Order that is
consistent with this Consent Decree, and which adopts the Consent Decree
without change, addition or modification.
20. In the event that this Consent Decree is rendered invalid in any court
of competent jurisdiction, it shall become null and void and may not be
used in any manner in any legal proceeding.
21. Broadband agrees to waive any claims it may otherwise have under the
Equal Access to Justice Act, 5 U.S.C. S504 and the Commission's rules, 47
C.F.R. S1.1501 et seq., relating to the matters addressed in this Consent
Decree.
22. Broadband and the Bureau each represent and warrant to the other that
they have full power and authority to enter into this Consent Decree.
23. This Consent Decree may be executed in counterparts.
FEDERAL COMMUNICATIONS COMMISSION
ENFORCEMENT BUREAU
By: ________________________________ Date: October __, 2006
Kris Anne Monteith, Chief
NEW JERSEY BROADBAND, LP
By: ________________________________ Date: October __, 2006
Thomas M. Balun, President of
New Jersey Broadband, LLC, General Partner
NEW JERSEY BROADBAND, LLC
By: _____________________________________ Date: October __, 2006
Thomas M. Balun, President
47 U.S.C. S154(i)
47 C.F.R. SS 0.111, 0.311.
Federal Communications Commission DA 06-2114
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Federal Communications Commission DA 06-2114