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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No. EB-07-KC-005
Simmons-Austin, LS, LLC )
FRN 0010736262
Licensee of Station KSLG(AM) )
Ref. Facility ID #74579
St. Louis, Missouri )
)
ORDER
Adopted: June 18, 2007 Released: June 20, 2007
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Simmons-Austin, LS, LLC
("Simmons"), licensee of station KSLG(AM), St. Louis, Missouri. The
Consent Decree terminates an investigation by the Bureau into whether
Simmons violated Section 301 of the Communications Act of 1934, as
amended ("Act"), and Sections 73.1350 and 73.1745 of the Commission's
Rules ("Rules").
2. The Bureau and Simmons have negotiated the terms of a Consent Decree
that would 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 and evaluating the
facts before us, we find that the public interest would be served by
approving 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 Simmons possesses the basic qualifications,
including character qualifications, to be or remain a Commission
licensee.
4. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 503(b)
of the Communications Act of 1934, as amended, and the authority
delegated in Sections 0.111 and 0.311 of the Commission's Rules, the
Consent Decree attached to this Order IS ADOPTED.
5. IT IS FURTHER ORDERED that the Bureau's investigation in this
proceeding IS TERMINATED.
6. IT IS FURTHER ORDERED that Simmons-Austin, LS, LLC shall make its
voluntary contribution to the United States Treasury, as specified in
the Consent Decree, by mailing a check or similar instrument, payable
to the order of the 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. The payment, regardless of how sent, must include the
FRN No. referenced above.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to counsel for Simmons, John R. Feore, Jr., Esquire, Dow
Lohnes PLLC, 1200 New Hampshire Ave., Suite 800, Washington, D.C.
20036 and to Simmons at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission ("Bureau")
and Simmons-Austin, LS, LLC. ("Simmons") hereby enter into this Consent
Decree regarding possible violations of Section 301 of the Communications
Act of 1934, as amended ("Act"), and Sections 73.1350 and 73.1745 of the
Commission's Rules ("Rules"), concerning Simmons' operation of Station
KSLG(AM).
Definitions
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Adopting Order" means the order of the Enforcement Bureau adopting
this Consent Decree;
b. "Act" means the Communications Act of 1934, as amended, Title 47 of
the United States Code;
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission;
d. "Commission" means the Federal Communications Commission;
e. "Final Order" means the Adopting Order that is no longer subject to
administrative or judicial reconsideration, review, appeal, or stay;
f. "Investigation" means the investigation conducted by the Bureau
concerning (i) whether Simmons complied with the provisions of the Act
and the Rules requiring the Station to operate in accordance with the
terms of its license for the period beginning October 1, 2006 and
ending on January 31, 2007, and (ii) whether Simmons issued a
corporate directive to the Station to operate outside of the terms of
its license.
g. "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations;
h. "Simmons" means Simmons-Austin, LS, LLC and any other commonly owned
entity, including Simmons Media Group, LLC; and
i. "Station" means KSLG(AM), St. Louis, Missouri.
Background
2. On January 30, 2007, the Bureau sent a letter (the "Letter") to
Simmons. In the Letter, the Bureau indicated that it had commenced an
investigation to determine whether Simmons had operated the Station's
daytime transmitter during nighttime hours between October 1, 2006,
and January 31, 2007.
3. On February 20, 2007, Simmons submitted a response to the Letter (the
"Response"). In the Response, Simmons acknowledged that at certain
times between October 1, 2006 and January 31, 2007, the Station
operated its daytime transmitter outside the daytime hours stated in
its license. The Response also detailed a series of actions that
Simmons had undertaken and thereafter would undertake to better ensure
that the Station and all other commonly owned stations complied with
the Commission's Rules.
4. Simmons and the Bureau acknowledge that any proceeding that might
result from the Investigation will require the significant expenditure
of public and private resources. To conserve such resources and to
promote compliance by Simmons with the Act and the Rules, Simmons and
the Bureau hereby enter into this Consent Decree in consideration of
the mutual commitments made herein.
Terms of Settlement
5. Simmons agrees that the Commission has jurisdiction over the matters
referenced in this Consent Decree and that the Bureau has the
authority to enter into and adopt this Consent Decree.
6. Simmons and the Bureau agree that this Consent Decree does not
constitute either an adjudication on the merits or a factual or legal
finding or determination, regarding the matters discussed in
Paragraphs Two and Three above. Simmons and the Bureau agree that this
Consent Decree is for settlement purposes only.
7. Simmons and the Bureau agree that this Consent Decree shall constitute
a final settlement between them as to the matters discussed in
Paragraphs Two and Three above. In consideration for termination of
the Investigation and in accordance with the terms of this Consent
Decree, Simmons agrees to the terms set forth herein.
8. In express reliance on the covenants and representations in this
Consent Decree, the Bureau shall terminate the Investigation. From and
after the release of the Adopting Order (the "Effective Date"), in the
absence of material new evidence, the Bureau shall not initiate or
recommend to the Commission any new proceeding, informal or formal,
regarding the matters that were the subject of the Investigation.
Nothing in this Consent Decree will prevent the Bureau from
instituting or recommending to the Commission any new investigation or
enforcement proceeding against Simmons in the event of any alleged
future misconduct involving violation of this Consent Decree, or
violation of the Act or the Rules.
9. Simmons admits, solely for the purpose of this Consent Decree and for
FCC civil enforcement purposes, and in express reliance on the
provisions of Paragraph Eight hereof, that Simmons operated the
Station in violation of Sections 73.1350 and 73.1745 of the Rules as
described in its Response. Notwithstanding any other provision of this
Consent Decree, it is expressly agreed and understood that if this
Consent Decree, or Paragraph Eight hereof, or both, are breached by
the Bureau, or are invalidated or modified to Simmons' prejudice by
the Commission or by any court, then and in that event the provisions
of the immediately-preceding sentence shall be of no force or effect
whatever, and Simmons shall not, by virtue of that sentence or any
other provision of this Consent Decree, be deemed to have made any
admission concerning the Investigation.
10. Simmons has implemented a comprehensive internal program to ensure its
future compliance with the Act, the Rules, and the Commission's
policies, as set forth below:
Automation Equipment. Simmons identified, ordered, received, and installed
new automation equipment for the Station. This new equipment turns the
daytime and nighttime transmitters on and off at the times specified in
the Station's license automatically, i.e., without the need for human
involvement or the risk of human error. Simmons has identified which other
radio stations require repairs to existing automation equipment and which
require installation of entirely new automation equipment. As of March 31,
2007, all of Simmons' stations have fully functioning automation equipment
installed and operating.
Internal Controls and Monitoring Equipment. Simmons has adopted internal
controls to detect instances in which a radio station might deviate from
its licensed parameters. As of March 31, 2007, Simmons has installed
computerized monitoring systems at all of its stations. These systems will
report any operating variations or discrepancies directly to Simmons'
Corporate Director of Engineering. Promptly following a report of any such
variations, the Corporate Director of Engineering will work with the
appropriate chief engineer or operator to identify and rectify the
problem.
Weekly Reporting System. Simmons has implemented a weekly reporting
system. Every chief engineer or operator will now prepare a weekly,
written report identifying any variances or discrepancies from his or her
station's or stations' licensed parameters, as well as any discrepancies
regarding EAS announcements and tower painting and lighting requirements.
These reports will be delivered to the local general managers, the
Corporate Director of Engineering, and the President of Simmons Media
Group, LLC.
Internal Inspections. Simmons has augmented its internal inspection
procedures. Simmons already inspects its radio stations periodically to
ensure compliance with the Commission's public inspection file and EAS
rules. Simmons has now retained an independent engineering firm to perform
random inspections of technical facilities at every Simmons station, at
least once each year. The firm will prepare a written report (the "Audit
Report") on its findings and deliver it promptly to the station's general
manager, the station's chief engineer, the Corporate Director of
Engineering, and the President of Simmons Media Group, LLC. The first such
inspections began in March 2007. Simmons shall retain all Audit Reports
for at least two years from the Effective Date. The Audit Reports will be
available to the Bureau, upon written request in connection with any
proceeding against Simmons concerning an alleged violation of this Consent
Decree.
11. Simmons shall make a voluntary contribution to the United States
Treasury in the amount of twenty-five thousand dollars ($25,000)
within 10 days after the Adopting Order becomes a Final Order. Such
payment will be made without further protest or recourse, by check or
similar instrument, payable to the order of the Federal Communications
Commission. Such payment will include the FRN No. referenced in the
Adopting Order. Such payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Such payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251.
Such payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 9116229.
12. Simmons 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 the Order adopts the Consent Decree without
modification.
13. The effectiveness of this Consent Decree is expressly contingent upon
issuance of the Adopting Order, provided the Adopting Order adopts the
Consent Decree without modification. Simmons will continue the weekly
reporting system and internal inspection, described in paragraph 10,
for at least 2 years from the Effective Date.
14. In the event any court of competent jurisdiction renders this Consent
Decree invalid, the Consent Decree shall become null and void and may
not be used in any manner in any legal proceeding.
15. If the Commission, or the United States on behalf of the Commission,
brings a judicial action to enforce the terms of the Adopting Order,
neither Simmons nor the Commission will contest the validity of the
Consent Decree or Adopting Order, and Simmons will waive any statutory
right to a trial de novo.
16. Simmons agrees to waive any claims it may otherwise have under the
Equal Access to Justice Act, 5 U.S.C. S 504 and 47 C.F.R. SS 1.1501 et
seq.
17. Any violation of the Consent Decree, including but not limited to a
failure to make a payment required by Paragraph 11 hereof, or the
Adopting Order will constitute a separate violation of a Commission
order, entitling the Commission to exercise any rights and remedies
attendant to the enforcement of a Commission order.
18. Simmons and the Bureau agree to be bound by the terms and conditions
stated herein.
19. This Consent Decree may be signed in counterparts.
ENFORCEMENT BUREAU
FEDERAL COMMUNICATIONS COMMISSION
By: _________________________________ ___________
Kris Anne Monteith Date
Chief
SIMMONS-AUSTIN, LS, LLC
By: _________________________________ ___________
G. Craig Hanson Date
Manager
47 U.S.C. S 301.
47 C.F.R. SS 73.1350 and 73.1745.
47 U.S.C. SS 4(i) and 503(b).
47 C.F.R. SS 0.111 and 0.311.
47 U.S.C. S 301.
47 C.F.R. SS 73.1350, and 73.745.
Federal Communications Commission DA 07-2590
1
Federal Communications Commission DA 07-2590
Federal Communications Commission DA 04-2342