Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
+-+
+
+-+
)
In the Matter of )
)
OP LLC, Licensee, Station WPYQ831 ) File No.: EB-08-SE-647
) Acct. No. 200832100067
and ) FRN # 0008617136
)
TVCC One Six Holdings LLC, ) File No.: EB-08-SE-648
Lessee, Station WPYQ831 ) Acct. No. 200832100068
) FRN # 0016700031
)
ORDER
Adopted: August 14, 2008 Released: August 14, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau"), OP LLC ("OP"), and TVCC One
Six Holdings LLC ("TVCC") for possible violation of sections 301 and
310(d) of the Communications Act of 1934, as amended, and section
1.9030 of the Commission's Rules regarding long-term de facto transfer
leasing arrangements.
2. The Bureau, OP, and TVCC have negotiated the terms of the Consent
Decree that resolves this matter. 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
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 OP or TVCC possess the basic
qualifications, including 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
Communications Act of 1934, as amended, 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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Bruce Olcott, Esq., Squire Sanders & Dempsey, LLP, 1201
Pennsylvania Avenue, NW, P.O. Box 407, Washington, DC 20044-0407.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
)
OP LLC, Licensee, Station WPYQ831 ) File No.: EB-08-SE-647
) Acct. No. 200832100067
and ) FRN # 0008617136
)
TVCC One Six Holdings LLC, ) File No.: EB-08-SE-648
Lessee, Station WPYQ831 ) Acct. No. 200832100068
) FRN # 0016700031
)
CONSENT DECREE
The Enforcement Bureau ("Bureau"), OP LLC ("OP"), and TVCC One Six
Holdings LLC
("TVCC"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the investigation into
whether OP and TVCC violated sections 301 and 310(d) of the Communications
Act of 1934, as amended, ("Act") and section 1.9030 of the Commission's
Rules ("Rules") regarding long-term de facto transfer leasing
arrangements.
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. "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 10.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation commenced by FCC staff's
January 8, 2008 Letter of Inquiry.
h. "OP" means OP LLC and its predecessors-in-interest and
successors-in-interest.
i. "Parties" means OP, TVCC, and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
k. "TVCC" means TVCC One Six Holdings LLC and its
predecessors-in-interest and successors-in-interest.
II. BACKGROUND
2. OP is the licensee of an exclusive nationwide license in the 1670-1675
MHz Band, Station WPYQ831. On July 17, 2007, OP filed an application
to lease its spectrum, by a long-term de facto transfer leasing
arrangement, to TVCC. The Wireless Telecommunications Bureau granted
that application on July 18, 2007.
3. On August 31, 2007, OP filed a "Tribal Land Construction Certification
and Demonstration" for Station WPYQ831, which provided that a "network
and service offering has been launched and is operating that covers
86% of the population of the" White Mountain Apache Reservation
("Reservation").
4. On January 10, 2008, FCC staff issued a letter of inquiry (LOI) to OP
regarding the provision of service to the Reservation. OP responded to
the January 10, 2008 LOI on January 25, 2008. That response included
the Declaration of E. Blake Hawk, Executive Vice President of OP,
executed January 25, 2008 ("Hawk Declaration"). The Hawk Declaration
provides, in part, "OP currently is providing DVB-H service free of
charge to 86% of the population of the [Reservation] ... and was
providing this service to 86% of the Reservation population prior to
August 31, 2007."
5. On March 14, 2008, FCC staff issued a second LOI to OP requesting
additional information regarding the provision of service to the
Reservation. OP and TVCC jointly responded to the March 14, 2008 LOI
on March 21, 2008. On August 14, 2008, OP and TVCC jointly filed an
application requesting Commission approval of a long-term de facto
transfer sublease agreement from TVCC to OP regarding the White
Mountain Apache Reservation area.
III. TERMS OF AGREEMENT
6. 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.
7. Jurisdiction. OP 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. TVCC 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.
8. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the Bureau 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.
9. 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 the
investigation. In consideration for the termination of said
investigation, OP and TVCC agree 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 OP or TVCC 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 OP or TVCC
with respect to their basic qualifications, including their character
qualifications, to be Commission licensees.
10. Compliance Plan. For purposes of settling the matters set forth
herein, OP and TVCC agree to maintain a Compliance Plan related to
future compliance with the Act, the Commission's Rules, and the
Commission's Orders. The Plan will include, at a minimum, the
following components:
a. Compliance Officers. OP and TVCC will each designate an employee
familiar with the Commission's rules, regulations and associated
policies relating to spectrum leasing arrangements and agreements
("Compliance Officer"). OP has designated its Vice President,
Internal Audits, as its spectrum leasing Compliance Officer. TVCC has
designated its Executive Vice President as its spectrum leasing
Compliance Officer. The designated spectrum leasing compliance
officers will also review the FCC's leasing regulations on a
quarterly basis to stay abreast of any new requirements, and will
review all spectrum leasing arrangements and agreements before they
are entered into by the parties and ensure that such arrangements and
agreements comply with FCC rules and policies.
b. Training. Within ninety (90) days of the Effective Date, OP and TVCC
shall conduct training sessions for all OP and TVCC personnel engaged
in spectrum leasing ("Covered Employees") to inform them about the
FCC rules and policies regarding spectrum leasing arrangements and
agreements. In addition, all new Covered Employees of OP and TVCC
will undergo such training within sixty (60) days of the commencement
of their employment. OP and TVCC will also provide refresher training
for all Covered Employees on at least an annual basis. In addition,
OP and TVCC will each prepare and distribute a written compliance
guide that sets forth company and Commission policies for spectrum
leasing arrangements and agreements. OP and TVCC will update the
guide, as necessary.
c. Compliance Reports. OP and TVCC shall file joint compliance reports
with the Commission ninety (90) days after the Effective Date, twelve
(12) months after the Effective Date, and twenty-four (24) months
after the Effective Date. Each report shall include a compliance
certificate from an officer, as an agent of OP, and an officer, as an
agent of TVCC, stating that the officer has personal knowledge that
the company has established operating procedures intended to ensure
compliance with this Consent Decree, together with an accompanying
statement explaining the basis for the officer's compliance
certification. All reports shall be submitted to Kathryn S. Berthot,
Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554. All reports shall also be submitted electronically to Kathryn
Berthot at kathy.berthot@fcc.gov.
d. Termination Date. Unless stated otherwise, the requirements of this
Compliance Plan will expire thirty-six (36) months from the Effective
Date.
11. Voluntary Contributions. OP agrees that it will make a voluntary
contribution to the United States Treasury in the amount of forty
thousand dollars ($40,000.00). TVCC agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
forty thousand dollars ($40,000.00). The payments will be made within
thirty (30) days after the Effective Date of the Adopting Order. The
payments must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment must
include the Account Number and applicable 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. 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
Account number in block number 23A (call sign/other ID), and enter the
letters "FORF" in block number 24A (payment type code). OP and TVCC
will also send electronic notification on the date said payment is
made to Kathryn Berthot at kathy.berthot@fcc.gov.
12. Waivers. OP and TVCC waive any and all rights they 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 Bureau Adopting Order adopts the
Consent Decree without change, addition, modification, or deletion. OP
and TVCC 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 OP, TVCC,
nor the Commission shall contest the validity of the Consent Decree or
the Adopting Order, and OP and TVCC shall waive any statutory right to
a trial de novo. OP and TVCC hereby agree to waive any claims they 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 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 be 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 OP or TVCC does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
15. Successors and Assigns. OP and TVCC agree that the provisions of this
Consent Decree shall be binding on their 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 the 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
others 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.
_______________________________
Kris Anne Monteith
Chief
Enforcement Bureau
________________________________
Date
________________________________
E. Blake Hawk
Executive Vice President
OP LLC
______________________________
Date
________________________________
Serge G. Martin
Executive Vice President
TVCC One Six Holdings LLC
________________________________
Date
47 U.S.C. S:S: 301, 310(d).
47 C.F.R. S: 1.9030.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S:S: 301, 310(d).
47 C.F.R. S: 1.9030.
Letter from Roger S. Noel, Chief, Mobility Division, Wireless
Telecommunications Bureau, to Ari Q. Fitzgerald, Counsel for OP LLC
(January 10, 2008), File No. 0003160142.
See 47 C.F.R. S: 1.9030.
File No 0003108073, lease ID L000002305 (filed July 17, 2007).
Report No. 3328 at 20 (July 25, 2007).
File No. 0003160142.
Letter from Roger S. Noel, Chief, Mobility Division, Wireless
Telecommunications Bureau, to Ari Q. Fitzgerald, Counsel for OP
(January 10, 2008), File No. 0003160142.
Letter from Ari Q. Fitzgerald, Counsel for OP, to Roger S. Noel,
Chief, Mobility Division, Wireless Telecommunications Bureau (January
25, 2008), File No. 0003160142.
Hawk Declaration at 1.
Letter from Roger S. Noel, Chief, Mobility Division, Wireless
Telecommunications Bureau, to Ari Q. Fitzgerald, Counsel for OP (March
14, 2008), File No. 0003160142.
Letter from Ari Q. Fitzgerald, Counsel for OP, and Bruce A. Olcott,
Counsel for TVCC, to Roger S. Noel, Chief, Mobility Division, Wireless
Telecommunications Bureau (March 21, 2008). On July 17, 2008, OP and
TVCC jointly filed a supplement to the March 21, 2008 response. See
Letter from Ari Q. Fitzgerald, Counsel for OP, and Bruce A. Olcott,
Counsel for TVCC, to James Schlichting, Chief, Wireless
Telecommunications Bureau (July 17, 2008).
Federal Communications Commission DA 08-1906
6
Federal Communications Commission DA 08-1906