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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-07-IH-5371
)
In the Matter of Facility ID No. 63979
)
Sunshine Broadcasters, Inc. FRN No. 0003754843
)
NAL/Acct. No. 200832080093
)
)
ORDER
Adopted: August 1, 2008 Released: August 6, 2008
By the Investigations and Hearings Division, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (the "Bureau") and Sunshine
Broadcasters, Inc., licensee of Station WIGN(AM) Bristol, Tennessee
(Facility ID No. 63979) (the "Licensee"). The Consent Decree
terminates the Bureau's investigation regarding whether the Licensee
violated Section 310(d) of the Communications Act of 1934, as amended
(the "Act"), and Section 73.3540 of the Commission's rules by engaging
in a stock transfer that resulted in a transfer of control of the
Licensee without first obtaining Commission approval.
2. The Bureau and Licensee have negotiated the terms of the Consent
Decree that resolve this matter. A copy of the Consent Decree is
attached hereto and incorporated herein 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
adopting the Consent Decree and terminating the investigation.
4. 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 Licensee possesses the basic
qualifications including, but not limited to, those related to
character, to hold or obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the Act
and 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 above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that all third-party complaints against Sunshine
Broadcasters, Inc. before the Enforcement Bureau related to the
above-captioned investigation as of the date of this Consent Decree
ARE DISMISSED.
8. IT IS FURTHER ORDERED that Sunshine Broadcasters 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, 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). Sunshine Broadcaster will also
send an electronic notification on the date each said payment is made
to: Hillary DeNigro (Hillary.Denigro@fcc.gov), Rebecca Hirselj
(Rebecca.Hirselj@fcc.gov) and William Knowles-Kellett
(William.Knowles-Kellett@fcc.gov).
9. IT IS FURTHER ORDERED that Sunshine Broadcasters, Inc. will file
reports with the Commission 12 months, 24 months, and 36 months after
the Effective Date, as that term is defined in the attached Consent
Decree, unless the Station License is assigned after prior approval by
the Commission. In each report, Sunshine Broadcasters, Inc. shall
confirm that it has complied with the compliance plan set forth in the
Consent Decree. Each report shall include a compliance certificate
from an officer, as an agent of Sunshine Broadcasters, Inc., stating
that the officer has personal knowledge that Sunshine Broadcasters,
Inc. has complied with the provisions of the compliance plan in the
Consent Decree together with an accompanying statement explaining the
basis for the officer's compliance certification. All reports shall be
submitted to Hillary S. DeNigro, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554, and, if practicable, also
via e-mail at Hillary.Denigro@fcc.gov.
10. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail, postage prepaid, and certified
mail, return receipt requested, to Timothy Brady, Esquire, P.O. Box
930, Johnson City, Tennessee, 37605-0930.
FEDERAL COMMUNICATIONS COMMISSION
Hillary DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-IH-5371
In the Matter of
) Facility ID No. 63979
Sunshine Broadcasters, Inc.
) FRN No. 0003754843
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Sunshine Broadcasters, Inc.
("Sunshine Broadcasters" or the "Licensee"), by their authorized
representatives, hereby enter into this Consent Decree for the purpose of
terminating the Bureau's investigation into whether Sunshine Broadcasters,
Inc. violated Section 310(d) of the Communications Act of 1934, as
amended, and Section 73.3540 of the Commission's rules by engaging in a
stock transfer that resulted in a transfer of control of the Licensee.
I. DEFINITIONS
1. For the 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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Complaint" means any third-party complaint that may have been
received by or is otherwise in the possession of the Commission or
Bureau alleging that Sunshine Broadcasters, Inc. engaged in an
unauthorized transfer of control.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
f. "Effective Date" means the date on which the Commission releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's
Investigations and Hearings Division's January 11, 2008, Letter of
Inquiry regarding whether Sunshine Broadcasters, Inc. engaged in an
unauthorized transfer of control with respect to Station WIGN(AM).
h. "Investigations and Hearings Division" means the Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, acting on behalf of the Enforcement Bureau.
i. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
j. "Parties" means Sunshine Broadcasters, Inc. and the Bureau.
k. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
l. "Sunshine Broadcasters" or "Licensee" means Sunshine Broadcasters,
Inc. licensee of Station WIGN(AM), Bristol, Tennessee Facility ID No.
63979.
m. "Station" means Station WIGN(AM), Bristol, Tennessee, Facility ID No.
63979.
n. "Station License" means the FCC license for Station WIGN(AM), Bristol,
Tennessee, Facility ID No. 63979.
II. BACKGROUND
2. Pursuant to Section 310(d) of the Act, control of a station license
may not be transferred "except upon application to the Commission and
a finding that the public interest, convenience, and necessity are
served thereby." Section 73.3540 of the Commission's rules provides
that prior consent of the Commission is required to voluntarily
transfer control of a broadcast license.
3. On January 11, 2008, the Bureau issued a letter of inquiry ("LOI") to
Sunshine Broadcasters. Upon receiving the LOI and in apparent response
thereto, Sunshine Broadcasters admitted that it engaged in a stock
transfer involving a transfer of control of the Company without having
obtained prior Commission approval. Sunshine Broadcasters informed the
Commission that it reversed the transaction at issue after realizing
that prior approval was required. Sunshine Broadcasters asserted that
it was unaware such approval was necessary and that, by failing to
request such authorization, it did not intend to deceive the
Commission regarding the stock transfer. In apparent support of this
assertion, Sunshine Broadcasters noted that it reported that the
transfer had occurred in FCC applications. Sunshine Broadcasters
proposed resolution of this matter by consent decree.
III. TERMS OF AGREEMENT
4. Adopting Order. 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
without change, addition, modification, or deletion.
5. Jurisdiction. Sunshine Broadcasters agrees that the Bureau has
jurisdiction over it and the matters contained in this Consent Decree
and has the authority to enter into and adopt this Consent Decree.
6. Effective Date: Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the FCC 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
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission Order.
7. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
Investigation and dismiss the Complaint. In consideration for the
termination of said Investigation and dismissal of the Complaint,
Sunshine Broadcasters agrees to the terms, conditions, and procedures
contained herein. The Bureau further agrees that in the absence of new
material evidence, the Bureau will not use the facts developed in this
Investigation through the Effective Date of the Consent Decree, or the
existence of this Consent Decree, to institute, on its own motion, any
new proceeding, formal or informal, or take any action on its own
motion against Sunshine Broadcasters concerning the matters that were
the subject of the Investigation. The Bureau also agrees that it will
not use the facts developed in this Investigation through the
Effective Date of this Consent Decree, or the existence of this
Consent Decree, to institute on its own motion any proceeding, formal
or informal, or take any action on its own motion against Sunshine
Broadcasters with respect to Sunshine Broadcasters' basic
qualifications, including its character qualifications, to be a
Commission licensee.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Sunshine Broadcasters agrees to maintain a Compliance Plan
related to future compliance with the Act, the Commission's Rules, and
the Commission's Orders for a period of three years. The Plan will
include, at a minimum, the following components:
The President of Sunshine Broadcasters will conduct a compliance
examination of Sunshine Broadcasters using the AM Station Checklist
published by the Commission's Media Bureau. Such examination will be
conducted, at a minimum, every six months, beginning on the Effective
Date, and concluding three years thereafter. The President shall also
consult with the Licensee's telecommunications counsel regarding the
Station's overall compliance with the Commission's rules on an annual
basis if not more frequently.
9. Compliance Reports. Sunshine Broadcasters will file compliance reports
with the Commission 12 months, 24 months, and 36 months following the
Effective Date. Each compliance report shall include a compliance
certificate from an officer, as an agent of Sunshine Broadcasters,
stating that the officer has personal knowledge that Sunshine
Broadcasters has complied with the compliance plan set forth herein,
together with an accompanying statement explaining the basis for the
officer's compliance certification. All compliance reports shall be
submitted to Hillary S. DeNigro, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554, and, if practicable, also
via e-mail at Hillary.Denigro@fcc.gov.
10. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire three years from the Effective Date.
11. Voluntary Contribution. Sunshine Broadcasters agrees that it will make
a voluntary contribution to the United States Treasury in the amount
of Five Thousand Dollars ($5,000). Such contribution shall be made in
five monthly payments of One Thousand Dollars ($1,000) each. The first
payment is to be made within ten calendar days of the Effective Date
of the Adopting Order. The payment must include the NAL/Account Number
and FRN Number referenced in the caption to the Adopting 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. Payments 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). Sunshine Broadcaster will also
send an electronic notification on the date each said payment is made
to: Hillary DeNigro (Hillary.Denigro@fcc.gov), Rebecca Hirselj
(Rebecca.Hirselj@fcc.gov) and William Knowles-Kellett
(William.Knowles-Kellett@fcc.gov).
12. Waivers. Sunshine Broadcasters 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 adopting this Consent Decree, provided
the Commission issues an Order adopting the Consent Decree without
change, addition, modification, or deletion. Sunshine Broadcasters
shall retain the right to challenge Commission interpretation of the
Consent Decree or any terms contained herein. 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 Sunshine Broadcasters
nor the Commission shall contest the validity of the Consent Decree or
the Adopting Order, and Sunshine Broadcasters shall waive any
statutory right to a trial de novo. Sunshine Broadcasters hereby
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: 1.1501 et
seq., relating to the matters addressed in this Consent Decree.
13. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be determined to be or
otherwise held invalid or unenforceable, such invalidity or
unenforceability shall not invalidate or render unenforceable the
entire Adopting Order or Consent Decree, but rather the entire
Adopting Order or Consent Decree shall be construed as if not
containing the particular invalid or unenforceable provision or
provisions, and the rights and obligations of the Parties shall
continue in full force and effect and construed and enforced
accordingly. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
proceeding.
14. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted
by the Commission (except an Order specifically intended to revise the
terms of this Consent Decree to which Sunshine Broadcasters does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
15. Successors and Assigns. Sunshine Broadcasters agrees that the
provisions of this Consent Decree shall be binding on its successors,
assigns, and transferees.
16. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
19. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
20. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
Hillary S. DeNigro
Chief, Investigations and Hearings Division
________________________________
Date
________________________________
Rick Mitchell
President
Sunshine Broadcasters, Inc.
________________________________
Date
See 47 U.S.C. S: 310(d).
See 47 C.F.R. S: 73.3540.
See 47 U.S.C. S: 154(i); 47 C.F.R. S:S: 0.111, 0.311.
See 47 U.S.C. S: 310(d).
See 47 C.F.R. S: 73.3540.
See Letter from Rebecca Hirselj, Assistant Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to Sunshine Broadcasters, Inc., January 11, 2008.
See 47 U.S.C. S: 310(d); 47 C.F.R. S: 73.3540.
47 U.S.C. S: 310(d).
See 47 C.F.R. 73.3540.
See 47 C.F.R. S: 73.3540(a).
See Letter from Timothy K. Brady, Esq., counsel for Sunshine Broadcasters,
to Rebecca Hirselj, Assistant Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, dated February 11,
2008.
See id. at 2.
Federal Communications Commission DA 08-1668
2
Federal Communications Commission DA 08-1668