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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File Number EB-05-KC-143
In the Matter of )
NAL/Acct. No. 200632560002
127, Inc. )
File Number EB-07-KC-017
Licensee of Station KLFJ )
NOV No. V20073256002
Facility ID# 17137 )
NAL/Acct No. 200732560001
Springfield, Missouri )
FRN 0011407814
)
)
ORDER
Adopted: August 16, 2007 Released: August 20, 2007
By the Associate Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and 127, Inc. ("127"),
licensee of station KLFJ, Springfield, Missouri. The Consent Decree
terminates an investigation by the Bureau against 127 for possible
violations of Sections 73.1125(a), 73.1745, and 73.3526 of the
Commission's Rules ("Rules").
2. The Bureau and 127 have negotiated the terms of a Consent Decree that
resolves this matter and terminate the investigation. A copy of the
Consent Decree is attached hereto and incorporated by reference.
3. Based on the record before us, and in the absence of material new
evidence relating to this matter, we conclude that there are no
substantial or material questions of fact as to whether 127 possesses
the basic qualifications, including those related to character, to
hold or obtain any Commission license or authorization.
4. After reviewing the terms of the Consent Decree, we find that the
public interest would be served by adopting the Consent Decree.
5. 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.
6. IT IS FURTHER ORDERED that the Bureau's investigation in this
proceeding IS TERMINATED.
7. IT IS FURTHER ORDERED that 127, Inc. 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.
8. 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 127, Inc., David S. Akers, 430C State
Highway 165 South Branson, MO 65616 and to 127, Inc. at its address of
record.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Associate Chief, Enforcement Bureau
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission ("Bureau")
and 127, Inc. ("127") hereby enter into this Consent Decree regarding
possible violations of the Commission's Rules ("Rules"), concerning 127's
operation of Station KLFJ.
Background
1. On March 3, 2006, the Commission's Kansas City Office of the
Enforcement Bureau ("Kansas City Office") issued to 127 a Notice of
Apparent Liability for Forfeiture proposing a forfeiture in the amount
of $21,000 for the apparent willful and repeated violation of Sections
73.1125(a) and 73.1745 of the Rules, and the apparent willful
violation of Section 73.3526(a) of the Rules. On September 6, 2006,
the Enforcement Bureau issued to 127 a Forfeiture Order and reduced
the forfeiture amount from $21,000 to $16,800, based on 127, Inc.'s
history of compliance with the Rules. On February 28, 2007, the
Enforcement Bureau denied the petition for reconsideration filed by
127, Inc. of the Forfeiture Order.
2. On March 7, 2007, the Kansas City Office issued to 127 another Notice
of Apparent Liability for Forfeiture proposing a forfeiture in the
amount of $8,000 for the apparent willful and repeated violation of
Section 73.1745(a) of the Rules.
3. On March 21, 2007, the Kansas City Office issued to 127 a Notice of
Violation for violations of Sections 11.35(a), 73.1125(d)(1),
73.1201(a)(2), 73.44(b), 73.1560, and 73.3615(a) of the Rules.
4. 127 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 127 with the Act and the Rules, 127 and the
Bureau hereby enter into this Consent Decree in consideration of the
mutual commitments made herein.
Definitions
5. 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 forfeiture proceeding regarding NAL/Acct.
No. 200632560002 and the investigations regarding NAL/Acct. No.
200732560001 and NOV No. V20073256002.
g. "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations;
h. "127" means 127, Inc.; and
i. "Station" means KLFJ, Springfield, Missouri.
Terms of Settlement
6. 127 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.
7. 127 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. 127 and the Bureau agree that this Consent Decree is for
settlement purposes only.
8. 127 and the Bureau agree that this Consent Decree shall constitute a
final settlement between them as to the matters discussed in
Paragraphs One through Three above. In consideration for termination
of the Investigation and in accordance with the terms of this Consent
Decree, 127 agrees to the terms set forth herein.
9. 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 127 in the event of any alleged future
misconduct involving violation of this Consent Decree, or violation of
the Act or the Rules.
10. 127 admits, solely for the purpose of this Consent Decree and for FCC
civil enforcement purposes, and in express reliance on the provisions
of Paragraph Nine hereof, that 127 operated the Station in violation
of the Rules as described in NAL/Acct. No. 200632560002, NAL/Acct. No.
200732560001 and NOV No. V20073256002. Notwithstanding any other
provision of this Consent Decree, it is expressly agreed and
understood that if this Consent Decree, or Paragraph Nine hereof, or
both, are breached by the Bureau, or are invalidated or modified to
127's 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 127 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.
11. 127 agrees that as of the release of the Adopting Order:
i. It has installed a new BE transmitter at the Station, and the station
will operate at 28 watts during nighttime hours.
ii. At least two full time employees, currently Shelly O'Brien and
Patricia Pugh, have been hired to manage and operate the Station. These
employees have been given instructions on maintenance of the public file
and required weekly and monthly testing requirements for the station
equipment.
iii. It has notified the Commission's Media Bureau of the relocation of
the main studio to 225 E. Primrose, Springfield, MO 65807.
iv. All regular programming has been edited to insure at least hourly
broadcast station identification, and all future programming shall contain
at least hourly identification.
v. The Station's studio engineer, currently Bob Moore, has successfully
repaired the transmitter so that there are no spurious emissions in
violation of Section 73.44(b) of the Rules and shall maintain the
transmitter by regular inspections.
vi. Prior to or contemporaneously with this Decree, an updated Ownership
Report will be filed with the FCC on Form 323 and an Ownership Report
shall be filed on behalf of the Station every two years thereafter the
date its renewal application was required to be filed.
vii. Copies of all violations and correspondence from the Commission shall
be place in the Station's public file.
viii. The Station's public inspection file has been complete as of July
13, 2007 and is accessible during all business hours.
ix. A fully operational studio capable of original transmission has been
set up at the Springfield main studio.
x. Once each year in 2007, 2008 and 2009, 127 shall conduct a
self-inspection of the Station, using the FCC Broadcast Inspection
Checklist, and submit a certification of compliance with the checklist
items to the Kansas City Office.
12. 127 shall make a voluntary contribution to the United States Treasury
in the amount of eighteen thousand four hundred and fifty dollars
($18,450) 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.
13. 127 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.
14. 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.
15. 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.
16. 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 127 nor the Commission will contest the validity of the
Consent Decree or Adopting Order, and 127 will waive any statutory
right to a trial de novo.
17. 127 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. S:S: 1.1501 et
seq.
18. Any violation of the Consent Decree, including but not limited to a
failure to make a payment required by Paragraph 12 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.
19. 127 and the Bureau agree to be bound by the terms and conditions
stated herein.
20. This Consent Decree may be signed in counterparts.
ENFORCEMENT BUREAU
FEDERAL COMMUNICATIONS COMMISSION
By: _________________________________ ___________
George R. Dillon Date
Associate Chief
127, Inc.
By: _________________________________ ___________
Charles J. Perme Date
President
47 C.F.R. S:S: 73.1125(a), 73.1745, 73.3526.
47 U.S.C. S:S: 4(i) and 503(b).
47 C.F.R. S:S: 0.111 and 0.311.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632560002
(Enf. Bur., South Central Region, Kansas City Office, released March 3,
2006).
127, Inc., Forfeiture Order, 21 FCC Rcd 10003 (2006) ("Forfeiture Order").
127, Inc., Memorandum, Opinion and Order, DA 07-811 (Enf. Bur. rel. Feb.
28, 2007).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732560001
(Enf. Bur., South Central Region, Kansas City Office, released March 7,
2007).
Notice of Violation, NOV No. V20073256002 (Enf. Bur. South Central Region,
Kansas City Office, released March 21, 2007).
Federal Communications Commission DA 07-3641
6
Federal Communications Commission DA 07-3641