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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
)
Beasley Broadcast Group, Inc.
)
Parent of File No. EB-08-IH-1895
)
WRXK License Limited Partnership NAL/Acct. No. 200932080009
)
Licensee of Station WRXK-FM FRN: 0004988077
)
Bonita Springs, Florida FRN: 0003764602
)
and Facility ID No. 73976
)
WQAM License Limited Partnership File No. BR-20031001BXU
)
Licensee of Station WQAM(AM) FRN: 0004305215
)
Miami, Florida Facility ID No. 64002
)
Notice of Apparent Liability NAL/Acct. No. 200432080201
)
For Forfeiture released
)
November 23, 2004 (FCC 04-225)
)
)
)
ORDER
Adopted: October 30, 2008 Released: October 30, 2008
By the Chiefs of the Enforcement Bureau and the Media Bureau:
1. In this Order, we adopt the attached Consent Decree entered into by
the Enforcement Bureau and the Media Bureau of the Federal
Communications Commission (the "Bureaus") and Beasley Broadcast Group,
Inc. and its indirect subsidiaries: WQAM License Limited Partnership,
licensee of Station WQAM(AM), Miami, Florida; and WRXK License Limited
Partnership, licensee of Station WRXK-FM, Bonita Springs, Florida
(collectively, "Beasley" and the "Beasley Stations"). The Consent
Decree resolves and terminates certain forfeiture proceedings,
investigations and complaints currently being conducted by, or pending
before, the Enforcement Bureau concerning possible violations by the
Beasley Stations of the restrictions on indecent, profane and obscene
programming in 18 U.S.C. S: 1464 and 47 C.F.R. S: 73.3999. The Consent
Decree also terminates and cancels the above-captioned Notice of
Apparent Liability for Forfeiture (NAL) and dismisses with prejudice
(i) certain complaints concerning programming aired on or activities
undertaken by Beasley Stations involving gambling and (ii) certain
informal objections, as defined herein, filed against the license
renewal application for Station WQAM(AM), FCC File No. BR-20031001BXU,
pending before the Media Bureau. Finally, by virtue of having resolved
all outstanding issues related to Beasley's pending renewal
application, the Media Bureau agrees to grant the license renewal
application of Station WQAM(AM) upon Beasley's satisfaction of certain
conditions.
2. The Bureaus and Beasley have negotiated the terms of the Consent
Decree that resolve these matters. 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, terminating the investigations,
dismissing the complaints and canceling the NAL.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigations raise no substantial or material
questions of fact as to whether Beasley 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 Sections 4(i) and 503(b)
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-described investigations ARE
TERMINATED and the referenced Notice of Apparent Liability IS
CANCELLED.
7. IT IS FURTHER ORDERED that the third-party complaints against Station
WQAM(AM) and WRXK-FM, and the informal objections against the renewal
application for Station WQAM(AM) before the Enforcement Bureau and
Media Bureau, as described herein, as of the release date of this
Consent Decree ARE DISMISSED WITH PREJUDICE to the extent that such
objections were not considered by the Commission in a separate
proceeding.
8. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
SHALL BE SENT by first class certified mail, return receipt requested,
to Steven A. Lerman, Esquire, Leventhal Senter & Lerman, PLLC, 2000 K
Street, N.W., Suite 600, Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Monica Shah Desai
Chief, Media Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
)
Beasley Broadcast Group, Inc.
)
Parent of File No. EB-08-IH-1895
)
WRXK License Limited Partnership NAL/Acct. No. 200932080009
)
Licensee of Station WRXK-FM FRN: 0004988077
)
Bonita Springs, Florida FRN: 0003764602
)
and Facility ID No. 73976
)
WQAM License Limited Partnership File No. BR-20031001BXU
)
Licensee of Station WQAM(AM) FRN: 0004305215
)
Miami, Florida Facility ID No. 64002
)
Notice of Apparent Liability NAL/Acct. No. 200432080201
)
For Forfeiture released
)
November 23, 2004 (FCC 04-225)
)
)
)
CONSENT DECREE
1. The Enforcement Bureau and the Media Bureau of the Federal
Communications Commission ("Bureaus") and Beasley Broadcast Group,
Inc., WQAM License Limited Partnership, and WRXK License Limited
Partnership (collectively, "Beasley" or the "Licensee"), by their
authorized representatives, hereby enter into this Consent Decree for
the purpose of resolving and terminating the above-captioned
forfeiture proceeding and certain Investigations and Complaints
currently being conducted by, or pending before, the Enforcement
Bureau relating to whether Beasley violated 18 U.S.C. S: 1464 and 47
C.F.R. S: 73.3999 by broadcasting indecent, profane or obscene
material over Stations WQAM(AM) and WRXK-FM; and for the purpose of
resolving and terminating Complaints relating to Station WQAM(AM)'s
airing of advertisements for internet gambling websites, its broadcast
of discussions concerning wagering or betting, and its conduct of an
internet contest. It also resolves and dismisses with prejudice all
Informal Objections to the license renewal application for Station
WQAM(AM), FCC File No. BR-20031001BXU, pending before the Media
Bureau, to the extent that such objections were not considered by the
Commission in a separate proceeding.
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. "Beasley" collectively means Beasley Broadcast Group, Inc. and its
indirect subsidiaries, WQAM License Limited Partnership and WRXK
License Limited Partnership.
c. "Beasley Station" and "Beasley Stations" mean Station WQAM(AM), Miami,
Florida and/or WRXK-FM, Bonita Springs, Florida.
d. "Bureaus" means the Enforcement Bureau and the Media Bureau of the
Federal Communications Commission.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Complaints" means the third-party complaints that may have been
received by, or are in the possession of, the Commission or Bureaus,
as of the Effective Date, alleging violations of the Commission's
Indecency Rules by Stations WQAM(AM) and/or WRXK-FM, alleging the
improper broadcast of advertising for off-shore internet gambling
sites and discussions concerning wagering or betting, and alleging
possible violations of Commission rules based on a station- sponsored
internet contest conducted by Station WQAM(AM).
g. "Compliance Plan" or "Plan" means the program described in this
Consent Decree at paragraph 10.
h. "Effective Date" means the date on which the Bureaus release the
Adopting Order.
i. "Indecency Rules" means 18 U.S.C. S: 1464 and 47 C.F.R. S: 73.3999.
j. "Informal Objections" means the informal objections to the renewal of
Station WQAM(AM), Miami, Florida, FCC File No. BR-20031001BXU, filed
by John B. Thompson, and dated November 11, 12, 13, 17, 18, 2003,
August 20, 2004, and December 12, 2007, and filed by D.G. Robinson on
December 5, 2003, and received by, or in the possession of, the
Commission or Bureaus.
k. "Investigations" means any investigation initiated by the
Investigation and Hearings Division prior to the Effective Date
regarding whether Beasley violated the Commission's Indecency Rules as
well as the investigation by the Media Bureau considering the
allegations in the informal objections to the renewal of Station
WQAM(AM).
l. "Investigations and Hearings Division" means the Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, acting on behalf of the Enforcement Bureau.
m. "NAL" means Notice of Apparent Liability for Forfeiture issued
pursuant to Section 1.80 of the Rules, including that certain Notice
of Apparent Liability for Forfeiture concerning WQAM License Limited
Partnership (WQAM(AM)), Miami, Florida (FCC 04-225), released November
23, 2004.
n. "Order" or "Adopting Order" means an Order adopted by the Bureaus
adopting the terms of this Consent Decree without change, addition,
deletion or modification.
o. "Parties" means Beasley and the Bureaus.
p. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
II. BACKGROUND
3. Pursuant to Title 18 of the United States Code, Section 1464, the
utterance of "any obscene, indecent or profane language by means of
radio communication" is prohibited. In addition, the Commission
prohibits the broadcast of indecent or profane material during the
time period of 6:00 a.m. through 10:00 p.m.
4. The Enforcement Bureau has received multiple Complaints alleging that
Beasley has violated the Commission's Indecency Rules. Certain of
these Complaints have resulted in Investigations and the issuance of
letters of inquiry and an NAL.
5. The Media Bureau received Informal Objections, filed by John B.
Thompson and by D.G. Robinson, to the WQAM(AM) license renewal
application. Mr. Thompson's initial Informal Objection, dated November
11, 2003, was supplemented by filings dated November 12, 13, 17, 18,
2003, August 20, 2004, and December 12, 2007. D.G. Robinson's Informal
Objection was filed on December 5, 2003.
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 Bureaus by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
7. Jurisdiction. Beasley agrees that the Bureaus have jurisdiction over
it and the matters contained in this Consent Decree and also have 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
Bureaus. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of the Bureaus'
Order, entitling the Enforcement Bureau and/or the Media Bureau to
exercise any rights and remedies attendant to the enforcement of a
Commission Order.
9. Termination of Investigations. In express reliance on the covenants
and representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureaus agree to terminate their
respective Investigations, dismiss the Complaints and Informal
Objections, and cancel the NAL. In consideration for the termination
of said Investigations, dismissal of the Complaints and Informal
Objections, and cancellation of the NAL, Beasley agrees to the terms,
conditions, and procedures contained herein. The Bureaus further agree
that, in the absence of material evidence not actually or
constructively known to the Commission as of the Effective Date,
neither Bureau will use the facts developed in their respective
Investigations or contained in the Complaints or Informal Objections
through the Effective Date of the Consent Decree, nor 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 Beasley concerning the matters that were the subject of the
Investigations, Complaints, or Informal Objections. The Bureaus also
agree that they will not use the facts developed in these
Investigations or contained in the Complaints or Informal Objections
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
Beasley with respect to Beasley's basic qualifications, including its
character qualifications, to be a Commission licensee or hold a
Commission license.
10. Compliance Plan. For purposes of settling the matters set forth
herein, Beasley agrees to adopt, implement and maintain pursuant to
the Consent Decree, at its Stations WQAM(AM), Miami, Florida, and
WRXK-FM, Bonita Springs, Florida ("Stations"), 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:
a. Beasley will conduct training for the Stations with respect to
federal statutes and regulations prohibiting the broadcast of
obscene, indecent or profane material, including FCC rulings thereon,
for all employees who are on-air talent and/or materially participate
in the on-air broadcast of program material or making of programming
decisions at the Stations ("Programming Employees"). Such training
will be provided to all Programming Employees within ninety (90) days
of the Effective Date of this Compliance Plan. The training will also
be provided to all new Programming Employees promptly after they
commence their duties. Refresher training will be provided to all
Programming Employees at least once every twelve (12) months.
b. If either of the Stations receives a Notice of Apparent Liability,
Order, or similar Commission document proposing a forfeiture and/or
contemplating license non-renewal or revocation for a broadcast
occurring after the Effective Date on the grounds that the broadcast
contained obscene, indecent, and/or profane material, the following
steps will be taken:
(1) All employees responsible for airing, or who materially participated
in the decision to air the obscene, indecent, and/or profane content will
be suspended and an investigation will immediately be undertaken;
(2) Such employees will be required to undergo remedial training on the
FCC's obscenity, indecency, and profanity regulations and policies and
satisfy station management that they understand such regulations and
policies before resuming their duties; and
(3) If any such employee who is on-air talent is permitted to return to
live broadcasting at the Stations following remedial training, a program
monitor will be assigned and the employee's broadcasts will be subjected
to a time delay sufficient to permit the program monitor to prevent the
broadcast of material that is actionably obscene, indecent, and/or
profane.
c. If a Notice of Apparent Liability, Forfeiture Order, Order or similar
document assessing or proposing a forfeiture, denying a renewal
application, and/or revoking an FCC authorization is finally
adjudicated and Beasley is determined to have aired obscene,
indecent, and/or profane material, the employees responsible for
airing, or who materially participated in the decision to air, that
material will be subject to further disciplinary action, up to and
including termination.
d. Subject to applicable law, including antitrust laws, Beasley will
fully participate with representatives of the broadcast, cable, and
satellite industries in any efforts that may emerge to develop a
voluntary industry-wide response to programming violative of the
Indecency Rules.
e. Unless stated otherwise, the requirements of this Consent Decree will
expire three years from the Effective Date.
11. Compliance Reports. Beasley will file compliance reports with the
Commission ninety days after the Effective Date, twelve months after
the Effective Date, twenty-four months after the Effective Date and
thirty-six months after the Effective Date. Each compliance report
shall include a compliance certificate from an officer, as an agent of
Beasley, stating that the officer has personal knowledge that Beasley
has consulted with counsel 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 DeNigro, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554, and to
Peter H. Doyle, Chief, Audio Division, Media Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554.
12. Voluntary Contribution. Beasley agrees that it will make a voluntary
contribution to the United States Treasury in the amount of
eighty-five thousand dollars ($85,000) within ten calendar days of the
Effective Date of the Adopting Order. 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 200932080009 and FRN Number 0004988077. 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). Beasley shall also send an electronic notification on the date
such payment is made to: Hillary DeNigro, at Hillary.DeNigro@fcc.gov,
Melanie Godschall, at Melanie.Godschall@fcc.gov, and Peter Doyle, at
Peter.Doyle@fcc.gov.
13. Waivers. Beasley 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. Beasley 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 Beasley nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Beasley
shall waive any statutory right to a trial de novo. Beasley 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.
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 Beasley does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
15. Successors and Assigns. Beasley agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees, except that the requirements contained in paragraphs 10
and 11 relating to the Compliance Plan and Reports to be filed
thereunder shall terminate if Beasley, with prior Commission approval,
assigns the Station License(s).
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 all 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.
ENFORCEMENT BUREAU
________________________
Kris Anne Monteith, Chief
_______________________
Date
MEDIA BUREAU
_________________________
Monica Shah Desai, Chief
_________________________
Date
Beasley Broadcast Group, Inc.
_________________________
Caroline Beasley, Chief Financial Officer
_________________________
Date
In a separate proceeding, the Commission considered and denied Mr.
Thompson's and other similar informal objections to granting renewal
application of Station WQAM(AM), Miami, Florida, based on alleged improper
retaliatory conduct and abuse. See Beasley Broadcast Group, Inc.,
Memorandum Opinion and Order, FCC 08-251 (Oct. 23, 2008).
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
See note 1 supra, citing Beasley Broadcasting Group, Inc., Memorandum
Opinion and Order, FCC 08-251.
See Beasley Broadcast Group, Inc., Memorandum Opinion and Order, FCC
08-251 (Oct. 23, 2008).
See 18 U.S.C. S: 1464.
See 47 C.F.R. S: 73.3999.
(Continued from previous page)
(continued....)
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