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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-04-IH-0487
Kenneth Wayne Diebel ) Facility No. 34020
Licensee of Station KHMB(FM) ) NAL/Acct. No. 200732080006
Hamburg, Arkansas ) FRN: 0008673386
)
ORDER
Adopted: November 21, 2006 Released: November 21, 2006
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau, Kenneth Wayne Diebel, ("Diebel"),
Licensee of Station KHMB(FM), Hamburg, Arkansas, and R&M Broadcasting,
Inc., ("R&M"). The Consent Decree terminates an investigation
initiated by the Enforcement Bureau to determine whether control of
Station KHMB(FM) was transferred without Commission authorization from
Diebel to R&M, in violation of, inter alia, Section 310(d) of the Act,
47 U.S.C. S 310(d), and Section 73.3540 of the Commission's rules, 47
C.F.R. S 73.3540, and to determine whether Diebel complied with
certain requirements of the Commission's rules for broadcast
licensees.
2. The Enforcement Bureau, Diebel and R&M have negotiated the terms of a
Consent Decree that resolve this matter and terminate the
investigation. A copy of the Consent Decree is attached hereto and
incorporated by reference.
3. 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 investigation. In the absence of material new evidence
relating to this matter, we conclude that our investigation raises no
substantial or material questions of fact as to whether Diebel or R&M
possess the basic qualifications, including character qualifications,
to remain a Commission licensee.
4. Accordingly, IT IS ORDERED, 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, that the attached
Consent Decree IS ADOPTED.
5. IT IS FURTHER ORDERED that the above-captioned investigation into the
matters described herein is terminated.
6. IT IS FURTHER ORDERED that copies of this order shall be sent by
regular first class mail and certified mail - return receipt requested
to Scott Cinnamon, Esq., counsel for Diebel and R&M; to Kenneth Wayne
Diebel, 1707 Louisa Street, Rayville, Louisiana 71269; and R&M
Broadcasting, Inc., 203 Fairview Road, Crossett, Arkansas 71635-4537.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-04-IH-0487
Kenneth Wayne Diebel ) Facility No. 34020
Licensee of Station KHMB(FM) ) NAL/Acct. No. 200732080006
Hamburg, Arkansas ) FRN: 0008673386
)
CONSENT DECREE
I. INTRODUCTION
1. This Consent Decree is entered into by the Enforcement Bureau of the
Federal Communications Commission, Kenneth Wayne Diebel, and R&M
Broadcasting, Inc.
II. DEFINITIONS
2. For the Purposes of this Consent Decree, the following definitions
will apply:
a. "Station" means Station KHMB(FM), Hamburg, Arkansas (Facility ID No.
34020);
b. "Diebel" refers to Kenneth Wayne Diebel, the sole owner and licensee
of the Station;
c. "R&M" means R&M Broadcasting, Inc., owned and operated by Jack
Reynolds, President, and Dennis Maxwell, Vice President;
d. "Non-Related Company" means a company or organization in which Diebel
(and/or his spouse) or Jack Reynolds (and/or his spouse) or Dennis
Maxwell (and/or his spouse), individually or collectively, is not an
officer, director, partner, member, manager or holder (directly or
indirectly) of an ownership interest.
e. "Commission" or "FCC" means the Federal Communications Commission.
f. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission;
g. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
Section 151 et seq.;
h. "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations;
i. "Adopting Order" means an order of the Bureau adopting this Consent
Decree;
j. "Effective Date" means the date on which the Adopting Order is
released;
k. "Engineer" means a registered professional engineer who is experienced
in broadcasting operations and regulations and who is retained by the
Licensee;
l. "Investigation" means the investigation conducted by the Bureau
regarding compliance by Diebel and R&M with the Act and the Rules in
connection with the operation of the Station;
m. "Parties" means the Bureau, Diebel and R&M;
n. "Licenses" means all authorizations, permits and licenses issued by
the Commission in connection with the operation of the Station;
o. "Licensee" means the holder of the Licenses;
p. "Application" means the FCC 314 Application For Consent To Assignment
of Broadcast Station Construction Permit Or License, dated November
14, 2005, file number BALH-20051115AAP, that is pending as of the
Effective Date in the Commission's Media Bureau;
q. "Checklists" means the FCC's Broadcast Self-Inspection Checklists
(http://www.fcc.gov/eb/be-chklsts/) as of the Effective Date;
r. "Violations" means violations of section 310(d) of the Act and section
73.3540 of the Rules by Diebel and R&M, and violations of section
73.1125 of the Rules by Diebel, as described in this Consent Decree;
and
s. "Crossett Studio" is a broadcast facility located in Crossett,
Arkansas that is owned and operated by R&M and used as the Station's
main studio.
III. BACKGROUND
3. On October 10, 2004, the Bureau received a complaint alleging that,
for five years, R&M had been operating the Station from the Crossett
Studio; that R&M claimed ownership of the facility and the
broadcasting equipment therein during that time; and that R&M ran the
day-to-day operations of the Station, including paying the Station's
employees and most Station expenses.
4. The complaint resulted in the commencement of an investigation by the
Bureau which revealed apparent Violations with regard to the operation
of KHMB(FM) by Diebel and R&M. Diebel violated section 73.1125 of the
Rules because he failed to notify the Commission that the Crossett
Studio was the Station's main studio location and he failed to provide
any staff for the main studio. Diebel and R&M violated section 310(d)
of the Act and section 73.3540 of the Rules because their oral time
brokerage arrangement put R&M in de facto control of the Station.
5. Diebel, R&M 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 Diebel and R&M with the Act and the
Rules, the Parties hereby enter into this Consent Decree in
consideration of the mutual commitments made herein.
IV. AGREEMENT
6. Diebel and R&M each agree that the Bureau, by delegated authority of
the Commission, has jurisdiction over the matters contained in this
Consent Decree, and the authority to enter into and adopt this Consent
Decree.
7. Diebel and R&M each agree to be legally bound by the terms and
conditions of this Consent Decree. R&M represents and warrants that
its signatory is duly authorized to enter into this Consent Decree on
its behalf.
8. The Parties agree that this Consent Decree will become effective on
the Effective Date. Upon the Effective Date, the Adopting Order and
this Consent Decree will have the same force and effect as any other
order of the Bureau and any violation of the terms of this Consent
Decree will constitute a separate violation of a Bureau order,
entitling the Bureau to subject Diebel and R&M to enforcement action
for such violation, as well as enforcement action with respect to the
Violations.
9. Diebel and R&M hereby admit to having committed the Violations.
10. Diebel and R&M hereby confirm their understanding that their conduct
with respect to the operation and control of station KHMB(FM) was
inconsistent with the requirements of the Communications Act and
assert that they will not engage in such conduct or similar conduct in
connection with any licensed station that they now or may hereafter
control or be associated with in any manner, including station
KMYY(FM).
11. In consideration of the terms and conditions set forth herein, the
Bureau agrees to terminate its Investigation and notify the
appropriate office within the Commission responsible for processing
the Application that the Application may be processed in the ordinary
course of business, without regard to the matters discussed herein in
Paragraphs 3, 4, 9 and 10. From and after the Effective Date, in the
absence of material new evidence, the Bureau agrees that it will not
use the Violations in any action against Diebel or R&M, provided that
they satisfy all of their obligations under this Consent Decree.
Nothing in this Consent Decree will prevent the Bureau from
instituting or recommending to the Commission any new investigation or
enforcement proceeding against either Diebel or R&M or both in the
event of any alleged future misconduct involving violation of this
Consent Decree, or violation of the Act or the Rules.
12. Diebel and R&M agree that within five (5) calendar days after the
Effective Date, each will make a voluntary contribution to the United
States Treasury in the amount of Twenty Thousand Dollars ($20,000),
for a combined contribution totaling Forty Thousand Dollars ($40,000),
as to which Diebel and R&M will be jointly and severally liable. Such
payment will be made by each without further protest or recourse, by
check or similar instrument, payable to the order of the Federal
Communications Commission. Each such payment will include the
NAL/Acct. No. and FRN No. referenced in the Adopting Order. Each
payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Each payment by overnight mail may be sent to Mellon Bank /LB 358340,
500 Ross Street, Room 1540670, Pittsburgh, PA 15251. Each payment by
wire transfer may be made to ABA Number 043000261, receiving bank
Mellon Bank, and account number 911-6106.
13. On or before January 1, 2007 (but no earlier than 30 days prior), and
January 1, 2008 (but no earlier than 30 days prior), the Licensee will
inspect the Station and certify in writing (supported by a written
certification of compliance from the Engineer participating in the
inspection with respect to engineering matters) that it is in
compliance with the Act, 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. The failure by or inability
of the Licensee to so certify will result in enforcement action by the
Bureau against the Licensee, at the Bureau's discretion.
14. All certifications referenced in Paragraph 13 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.
15. Diebel and R&M each agrees that any violation of this Consent Decree,
including but not limited to a failure to make any of the payments
required by Paragraph 12 hereof, will constitute a separate violation
of a Commission order and subject each to appropriate administrative
sanctions.
16. This Consent Decree will be binding on Diebel's and R&M's transferees,
successors and assigns, provided that in the event of an assignment or
transfer of the Licenses to a Non-Related Company, only the
obligations of Paragraph 12 will be binding on the assignee or
transferee.
17. Diebel and R&M 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 Order, provided the Order adopts the Consent Decree without
change, addition or modification.
18. Diebel and R&M each 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.
19. Diebel, R&M and the Bureau each agrees 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.
20. Diebel, R&M and the Bureau each agrees that if Diebel, R&M, 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, none of Diebel, R&M or the Commission will contest the
validity of the Consent Decree or Order, and Diebel, R&M 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.
21. Diebel, R&M 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.
22. 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.
FEDERAL COMMUNICATIONS COMMISSION
________________________________
By: Kris Anne Monteith
Chief, Enforcement Bureau
Date: _______________
LICENSEE OF STATION
___________________________________
Kenneth Wayne Diebel (individually)
Date: _______________
R&M BROADCASTING, INC.
___________________________________
By: Jack Reynolds, President
Date: _______________
These rules include the main studio rule, 47 C.F.R. S 73.1125, the chief
operator rule, 47 C.F.R. S 73.1350 (a)-(c), the station log rules, 47
C.F.R. SS 73.1800, 73.1820, and 73.1840, the public file rule, 47 C.F.R. S
73.3526, and the Emergency Alert System rules, 47 C.F.R. SS 11.35,
73.1250, 73.1300, and 73.1350(h).
47 U.S.C. S 154(i).
47 C.F.R. SS 0.111, 0.311.
See 47 U.S.C. S 310(d); 47 C.F.R. SS 73.3540.
See 47 C.F.R. S 73.1125.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 06-2333
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Federal Communications Commission DA 06-2333