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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No. EB-08-IH-0582
GAP BROADCASTING, LLC )
NAL/Acct. No. 200932080003
Applicant for FM Broadcast )
Construction Permits in Auction 70 FRN No. 0015495955
)
)
ORDER
Adopted: October 14, 2008 Released: October 14, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and GAP Broadcasting, LLC
("GAP Broadcasting"), an applicant for FM broadcast construction
permits in Auction 70. The Consent Decree terminates an investigation
by the Bureau into compliance by GAP Broadcasting with Sections
1.2105(c)(1) and (c)(6) of the Commission's rules, relating to
collusive conduct.
2. The Bureau and GAP Broadcasting have negotiated the terms of the
Consent Decree that resolve 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 GAP Broadcasting possesses 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 Howard M. Liberman, Esquire, Drinker Biddle & Reath,
LLP, 1500 K Street, N.W., Suite 1100, Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
See 47 C.F.R. S: 1.2105(c)(1) and (c)(6).
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
Federal Communications Commission DA 08-2250
Federal Communications Commission DA 08-2250
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No. EB-08-IH-0582
GAP BROADCASTING, LLC )
NAL/Acct. No. 200932080003
Applicant for FM Broadcast )
Construction Permits in Auction 70 FRN No. 0015495955
)
)
CONSENT DECREE
1. The Enforcement Bureau and GAP Broadcasting, LLC, a Florida limited
liability company, by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the
Enforcement Bureau's investigation into compliance by GAP
Broadcasting, LLC, with Sections 1.2105(c)(1) and (c)(6) of the
Commission's Rules, relating to collusive conduct.
I. DEFINITIONS
2. 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. "Auction 70" means the Federal Communications Commission's auction of
certain construction permits in the FM Broadcast service for stations
throughout the United States, held from March 7 through March 26,
2007.
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 Commission releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's
February 28, 2008, Letter of Inquiry relating to GAP Broadcasting's
compliance with Section 1.2105(c) of the Commission's Rules.
h. "GAP Broadcasting" means GAP Broadcasting, LLC and its
predecessors-in-interest and successors-in-interest.
i. "KM Communications" means KM Communications, Inc.
j. "MB" means the FCC's Media Bureau.
k. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
l. "Parties" means GAP Broadcasting and the Bureau.
m. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
n. "WTB" means the FCC's Wireless Telecommunications Bureau.
II. BACKGROUND
3. Section 1.2105(c)(1) of the Commission's Rules states, in pertinent
part:
[A]fter the [FCC Form 175] short-form application filing deadline, all
applicants for licenses in any of the same geographic license areas are
prohibited from cooperating or collaborating with respect to, discussing
with each other, or disclosing to each other in any manner the substance
of their own, or each other's, or any other competing applicants' bids or
bidding strategies, or discussing or negotiating settlement agreements,
until after the down payment deadline, unless such applicants are members
of a bidding consortium or other joint bidding arrangement identified on
the bidder's short-form application . . . .
In addition, Section 1.2105(c)(6) of the Commission's Rules requires
"[a]ny applicant that makes or receives a communication of bids or bidding
strategies prohibited under [Section 1.2105(c)(1) of the Commission's
Rules ] shall report such communication in writing to the Commission
immediately, and in no case later than five business days after the
communication occurs."
1. 4. On November 2, 2006, WTB and MB announced procedures governing
Auction 70. Pursuant to the Auction 70 Procedures Public Notice, GAP
Broadcasting and KM Communications each timely submitted a short-form
application to participate in Auction 70 and to bid for all 120
construction permits offered in the auction.
5. GAP Broadcasting concedes that, on March 23, 2007, after both GAP
Broadcasting and KM Communications had placed bids for the Eldorado,
Texas, construction permit and while bidding in Auction 70 was still
underway, GAP Broadcasting's Managing Member, George Laughlin, placed
a telephone call to KM Communications for the purpose of determining
whether KM Communications would be amenable to selling any of its
radio stations to GAP Broadcasting. During the conversation, Mr.
Laughlin stated that GAP Broadcasting no longer intended to place bids
for the Eldorado, Texas construction permit. GAP Broadcasting states
that neither it nor Mr. Laughlin was a member of any bidding
consortium or other joint arrangement in Auction 70 with KM
Communications. Further, GAP Broadcasting acknowledges that it did not
contemporaneously disclose the telephone call to the Commission.
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. GAP Broadcasting 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 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.
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 its
Investigation. In consideration for the termination of said
Investigation, GAP Broadcasting 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 GAP Broadcasting 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 GAP
Broadcasting with respect to GAP Broadcasting's or George Laughlin's
basic qualifications, including their character qualifications, to be
a Commission licensee or hold Commission authorizations.
10. Compliance Plan. For purposes of settling the matters set forth
herein, GAP Broadcasting agrees to develop and implement 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. Auctions Compliance Manual. GAP Broadcasting shall develop an Auctions
Compliance Manual for distribution on or before the date of the initial
Compliance Training Program described in Paragraph 8(b), to company
lawyers, managers, and other parties responsible for participating in FCC
auctions as designated bidders on behalf of GAP Broadcasting. The Auctions
Compliance Manual will include, in greater detail, the matters covered in
the Compliance Training Program, e.g., an overview of the Commission's
require-ments for participation in auctions, including the Commission's
Rules and the requirements of the Communications Act of 1934, as amended,
regarding the prohibitions on auction collusion and related reporting
requirements. The Compliance Manual will be updated from time to time, as
needed.
b. Compliance Training Program. GAP Broadcasting shall conduct an initial
education program within ninety (90) days of the Effective Date for
company lawyers, managers, and other parties responsible for participating
in Commission's auctions as designated bidders on behalf of GAP
Broadcasting. This education program will include an overview of the
Commission's auctions rules, including the Commission's rules and the
requirements of the Communications Act of 1934, as amended, regarding the
prohibitions on auction collusion and related reporting requirements. This
education program will be updated and presented annually and additionally
from time to time, as needed, to ensure that new employees are informed of
regulatory compliance requirements and that existing employees are
reminded of the same.
c. Compliance Reports. GAP Broadcasting shall file 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 compliance report shall include a compliance
certificate from an officer, as an agent of GAP Broadcasting, stating that
the officer has personal knowledge that GAP Broadcasting 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 compliance reports shall be
submitted to Hillary S. DeNigro, Chief, Investigations & Hearings
Division, Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W., Washington, D.C. 20554.
d. Termination Date. Unless stated otherwise, the requirements of this
Compliance Plan will expire after the final Voluntary Contribution
payment, as described below, has been received the Commission. On that
date, GAP Broadcasting shall submit an affidavit or declaration under
penalty of perjury, signed and dated by an authorized officer of GAP
Broadcasting with personal knowledge of the representations therein,
verifying that GAP Broadcasting has complied with the terms of this
Consent Decree. The affidavit or declaration shall be submitted to Hillary
S. DeNigro, Chief, Investigations & Hearings Division, Enforcement Bureau,
Federal Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554.
11. Voluntary Contribution. GAP Broadcasting agrees that it will make a
voluntary contribution to the United States Treasury in the total
amount of $65,000, to paid as follows: an initial payment, in the
amount of $7,500, shall be made within thirty (30) calendar days of
the Effective Date; a second payment, in the amount of $17,500, shall
be made on or before one year after the Effective Date; a third
payment, in the amount of $25,000, shall be made on or before two
years after the Effective Date; and a fourth and final payment, in the
amount of $15,000, shall be made on or before three years after the
Effective Date. Each 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 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 NAL/Account number in block number 23A
(call sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). GAP Broadcasting will also send electronic
notification on the date said payments are made to
Hillary.DeNigro@fcc.gov, Gary.Schonman@fcc.gov, and
Jennifer.Lewis@fcc.gov.
12. Waivers. GAP Broadcasting 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. GAP Broadcasting 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 GAP Broadcasting nor
the Commission shall contest the validity of the Consent Decree or the
Adopting Order, and GAP Broadcasting shall waive any statutory right
to a trial de novo. GAP Broadcasting 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. 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 GAP Broadcasting does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
14. Successors and Assigns. GAP Broadcasting agrees that the provisions of
this Consent Decree shall be binding on its successors, assigns, and
transferees.
15. 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.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
17. 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.
18. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
19. 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 Date
Chief, Enforcement Bureau
________________________________ ____________________________
George Laughlin Date
Managing Member
GAP Broadcasting, LLC
See 47 C.F.R. S: 1.2105(c)(1) and (c)(6).
See Letter from Gary Schonman, Acting Deputy Chief, Investigations &
Hearings Division, Enforcement Bureau, to GAP Broadcasting, LLC, dated
February 28, 2008 ("LOI").
47 C.F.R. S: 1.2105(c)(1).
47 C.F.R. S: 1.2105(c)(6).
See Auction of FM Broadcast Construction Permits Scheduled for March 7,
2007: Notice and Filing Requirements, Minimum Opening Bids, Upfront
Payments and Other Procedures for Auction No. 70, AU Docket No. 06-170,
Public Notice, 21 FCC Rcd 12957 (WTB/MB 2006) ("Auction 70 Procedures
Public Notice").
See Letter from George Laughlin, Managing Member, GAP Broadcasting, LLC,
to Marlene H. Dortch, Secretary Federal Communications Commission, dated
March 10, 2008 ("LOI Response").
See LOI Response at 2.
Federal Communications Commission DA 08-2250
4
Federal Communications Commission DA 08-2250