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CONSENT DECREE
I. INTRODUCTION
1. The Enforcement Bureau ("the Bureau") of the Federal Communications
Commission (the "FCC" or "Commission") and Farmworker Educational
Radio Network, Inc. ("Farmworker"), licensee of radio station KCEC-FM,
in Wellton, Arizona, by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating an enforcement
proceeding relating to whether Farmworker violated Section 11.35 of
the Commission's Rules ("Rules") by failing to ensure the operational
readiness of the KCEC-FM's Emergency Alert System ("EAS") equipment.
I. DEFINITIONS
2. For purposes of this Consent Decree, the following definitions shall
apply:
1. "Act" means the Communications Act of 1934, as amended, Title 47 of
the United States Code.
2. "Adopting Order" means an order of the Bureau adopting the terms and
conditions of this Consent Decree.
3. "Application for Review" means the application for review filed by
Farmworker on April 2, 2007, concerning the Western Region's
Forfeiture Order.
4. "Bureau" means the Commission's Enforcement Bureau.
5. "Commission" or "FCC" means the Federal Communications
Commission.
6. "Effective Date" means the date the Adopting Order is released by
the Bureau.
7. "Enforcement Proceeding" means the FCC investigation into the
alleged Rule violation by Farmworker culminating in the Notice of
Apparent Liability for Forfeiture.
8. "Farmworker" means Farmworker Educational Radio Network, Inc., its
subsidiaries, affiliates, and any successors or assigns.
9. "Forfeiture Order" means the order released by the Western Region of
the Enforcement Bureau, assessing an $8,000 forfeiture to
Farmworker: Farmworkers Educational Radio Network, Inc., Forfeiture
Order, 21 FCC Rcd 6959 (EB 2006).
10. "License" means broadcast radio station KCEC-FM, Wellton, Arizona.
11. "Memorandum Opinion and Order" or "MO&O" means the order released by
the Enforcement Bureau, affirming the Western Region's assessment of
an $8,000 forfeiture to Farmworker: Farmworkers Educational Radio
Network, Inc., Memorandum Opinion and Order, 22 FCC Rcd 4133 (EB
2007).
12. "Notice of Apparent Liability for Forfeiture" or "NAL" means
Farmworkers Educational Radio Network, Inc., Notice of Apparent
Liability for Forfeiture, NAL/Acct. No. 200532940003 (Enf. Bur.,
Western Region, San Diego Office, released July 20, 2005).
13. "Parties" means Farmworker and the Bureau.
14. "Radio Facility" means the facility authorized under the License.
15. "Rules" means the Commission's Rules found in Title 47 of the Code
of Federal Regulations.
I. BACKGROUND
3. On April 8, 2005, an agent from the Commission's San Diego Office
conducted an inspection at the main studio of KCEC-FM located at 670
E. 32nd Street, Suite 12A, Yuma, Arizona. Although EAS equipment was
installed, the agent found that it was not operational at the time of
inspection. It was subsequently determined, and conceded by
Farmworker, that the EAS receiver was not plugged in. Initially,
during the inspection, the agent determined that no audio from the EAS
receiver for the designated first and second local primary stations
("LP-1" and "LP-2") could be heard. At the request of the agent, the
designated LP-1 and LP-2 stations ran a required weekly test ("RWT")
during this inspection and the station's EAS equipment did not detect
the activation. A review of the EAS log and printouts generated by the
EAS encoder/decoder indicated that from January 2004 through April
2005, only four monthly tests ("RMT") were received from the local
primary stations and none of these tests were retransmitted. EAS logs
also indicated that numerous RWTs were not transmitted by KCEC-FM and
numerous RWTs were not received from either designated LP-1 or LP-2
stations during this same period. No entries were made by KCEC-FM
staff in the EAS log to identify the causes of these failures or what
steps were taken to remedy any failures.
4. On April 22, 2005, the San Diego agent spoke with KCEC-FM's Chief
Engineer. The Chief Engineer acknowledged that problems were found
with the EAS equipment during the engineer's inspection of the
station's EAS equipment on April 9, 2005. Specifically, he indicated
that the EAS equipment was originally set for the automatic mode to
receive and to forward the information received for the tests from the
local primary stations. However, the EAS equipment was switched to the
manual mode, requiring a staff person to manually resend the RMT.
Also, the Chief Engineer indicated that the EAS receiver was not
connected properly to a power source which explained why the tests
sent by the LP-1 and LP-2 had not been received by KCEC-FM.
5. On July 20, 2005, the Enforcement Bureau's San Diego Office issued a
Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
$8,000 to Farmworker, finding that Farmworker apparently repeatedly
failed to ensure the operational readiness of the KCEC-FM EAS
equipment. Farmworker filed a response to the NAL on August 22, 2005
("Response"). On June 29, 2006, after reviewing Farmworker's Response,
the Western Region, Enforcement Bureau, released the Forfeiture Order,
and imposed an $8,000 forfeiture on Farmworker for its repeated
violation of Section 11.35 of the Rules. On July 31, 2006, Farmworker
filed a petition for reconsideration of the Forfeiture Order. The
petition was denied by the Bureau in the Memorandum Opinion and Order,
released March 2, 2007. On April 2, 2007, Farmworker filed an
Application for Review of the Memorandum Opinion and Order.
I. TERMS OF SETTLEMENT
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 the Adopting Order.
7. The Parties agree that this Consent Decree shall not constitute an
adjudication on the merits or a factual or legal determination
regarding any compliance or noncompliance with the Act or the Rules.
The Parties further agree that this Consent Decree is for settlement
purposes only and that by agreeing to this Consent Decree, Farmworker
does not admit or deny any noncompliance, violation, or liability
associated with or arising from its acts or omissions involving the
Rules that are the subject of this Consent Decree.
8. The Parties agree that this Consent Decree shall become binding on the
Parties on the Effective Date. Upon release, the Adopting Order and
this Consent Decree shall have the same force and effect as any other
final order of the Commission and any violation of the terms or
conditions of this Consent Decree shall constitute a violation of a
Commission order entitling the Commission to exercise any rights and
remedies attendant to the enforcement of a Commission order.
9. The Parties acknowledge and agree that this Consent Decree shall
constitute a final and binding settlement between Farmworker and the
Bureau regarding possible violations of the Rules with respect to the
operation of radio station KCEC-FM prior to the Effective Date of this
Consent decree. In express reliance on the covenants and
representations contained herein, and in order to avoid the potential
expenditure of additional public resources, the Bureau agrees to
terminate the Enforcement Proceeding and cancel the Memorandum Opinion
and Order.
10. In consideration for the termination by the Bureau of the Enforcement
Proceeding and in accordance with the terms of this Consent Decree,
Farmworker agrees to the terms, conditions and procedures contained
herein, and agrees to withdraw the Application for Review within 30
calendar days of the Effective Date.
11. Farmworker acknowledges that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
12. Farmworker to make a voluntary contribution to the United States
Treasury in the amount of four thousand dollars ($4,000) within 30
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 NAL/Account
Number and FRN Number referenced in the caption to the Order. Payment
by check or money order may be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by
wire transfer may be made to ABA Number 021030004, receiving bank
TREAS/NYC, and account number 27000001. For payment by credit card, an
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the NAL/Account number in block number 23A
(call sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). Farmworker shall also send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
13. Farmworker also agrees that within one month of the Effective Date,
the following Compliance plan will be put into place:
a. Management staff from Farmworker's headquarters will hold a meeting at
KCEC-FM studios in Wellton, Arizona, with all local station employees,
to review FCC requirements for EAS systems generally. The review will
focus on operational and documentation procedures as outlined in the
FCC's current EAS Handbook. In addition, the meeting will include a
hands-on demonstration of how KCEC-FM's EAS system is supposed to
function and how to confirm that the system is working properly.
b. At that same meeting, one KCEC-FM employee will be designated as
primarily responsible for EAS compliance, and another will be
designated with back-up responsibility, in the absence of the person
with primary responsibility.
c. If in the future another staff person is hired as a replacement for a
current station employee charged with responsibility for EAS
compliance, the new hire will be fully trained by an employee with
experience with the system.
d. For the first two months following the meeting, the KCEC-FM
employee(s) designated as responsible for EAS compliance will perform
twice-weekly checks confirming that the station's EAS system is
capable of, and in fact is, (a) properly receiving and (b) properly
transmitting the required EAS signals. Documentation that the checks
have been completed and that the system is working properly will be
noted on an EAS log, initialed by the responsible employee, and faxed
to licensee headquarters at the end of each month.
e. After the first two months, similar checks will be conducted and
documented on a weekly basis, with the results faxed to licensee
headquarters at the end of each month. This procedure, with monitoring
by licensee headquarters management, will be implemented on a
continuing basis for a period of one year, after which weekly logging
will continue but monthly reporting will cease.
f. Any anomalies in the functioning of KCEC-FM EAS equipment will be
noted by a dated entry in the station's EAS log, and a telephone call
reporting the problem will immediately be placed to licensee
headquarters and documented in the log. The licensee will follow up to
make sure that steps necessary to correct any such identified problem
are taken promptly.
g. KCEC-FM staff will retain all EAS log sheets with its business records
at the station, for the duration of the license term.
14. The Bureau agrees that, in the absence of new material evidence, it
will not entertain, or institute on its own motion, any new
proceeding, formal or informal, or take any action on its own motion
against Farmworker for any alleged violation of the Act or the Rules
regarding the matters that were the subject of the Enforcement
Proceeding. The Bureau also agrees that, in the absence of new
material evidence, it will not initiate or recommend to the Commission
any new proceeding, formal or informal, against Farmworker regarding
the matters that were the subject of the Enforcement Proceeding. The
Bureau further agrees that, in the absence of new material evidence,
it will not use the facts developed in the Enforcement Proceeding
through the Effective Date to initiate on its own motion, or recommend
to the Commission any new proceeding, formal or informal, or take any
action on its own motion against Farmworker with respect to Farmworker
basic qualifications to hold Commission licenses or authorizations.
Nothing in this Consent Decree shall prevent the Commission from
instituting investigations or enforcement proceedings against
Farmworker in the event of any other alleged misconduct that violates
this Consent Decree or which violates any provision of the Act or the
Rules.
15. The Parties agree that each 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 Farmworker fails to satisfy any condition, in the absence of
Commission alteration of the condition, it will be deemed noncompliant
and may be subject to possible future enforcement action with respect
to such failure to satisfy the condition.
16. The Parties agree that any provision of this Consent Decree which
conflicts with any subsequent rule, order of general applicability or
other decision of general applicability adopted by the Commission will
be superseded by such Commission rule, order or other decision.
17. Farmworker'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, modification, or deletion.
18. The Parties waive 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 that the Adopting Order adopts the
Consent Decree without change, addition, or modification.
19. The Parties agree that if any court of competent jurisdiction renders
this Consent Decree invalid, it shall become null and void and may not
be used in any manner in any legal proceeding.
20. The Parties agree that if either party (or the United States on behalf
of the Commission) brings a judicial action to enforce the terms of
the Adopting Order, neither Farmworker nor the Commission shall
contest the validity of the Consent Decree or the Adopting Order, and
Farmworker and the Commission shall waive any statutory right to a
trial de novo with respect to any matter upon which the Adopting Order
is based, and shall consent to a judgment incorporating the terms of
the Consent Decree.
21. Farmworker agrees to waive any claims it may otherwise have under the
Equal Access to Justice Act, Title 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501
et seq., relating to matters discussed in this Consent Decree.
22. This Consent Decree cannot be modified without the advance written
consent of
both Parties.
23. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau:
By: __________________________ ________________
George R. Dillon, Associate Chief Date
For Farmworker Educational Radio Network, Inc.:
By: __________________________ ________________
President Date
We note that the FCC authorization for KCEC-FM lists the licensee as
Farmworkers Educational Radio Network, Inc., however, the correct name of
the entity is Farmworker Educational Radio Network, Inc.
47 C.F.R. S: 11.35.
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