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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
A Radio Company, Inc. File Number EB-05-SJ-025
)
Licensee of Station WEGA NAL/Acct. No.200632680001
)
Vega Baja, PR 00694 FRN 0010555654
)
Facility ID # 69853
)
)
ORDER
Adopted: May 12, 2008 Released: May 14, 2008
By the Associate Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and A Radio Company, Inc.
("A Radio"), licensee of AM radio station WEGA in Vega Baja, Puerto
Rico. The Consent Decree terminates an investigation by the Bureau
against A Radio for possible violations of Sections 73.49, 73.1350(a),
and 73.3526 of the Commission's Rules ("Rules") regarding antenna
tower fencing and public inspection file requirements and operating
with an unauthorized antenna pattern.
2. The Bureau and A Radio 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 A Radio 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) and 503(b)
of the Communications Act of 1934, as amended, 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 Radio Company, Inc. shall make its
voluntary contribution to the United States Treasury, as specified in
the Consent Decree, by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment will be
made within thirty calendar days after the Effective Date of the
Adopting Order. The payment must include the NAL/Account Number and
FRN Number referenced above. 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[s] 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).
Requests for full payment under an installment plan should be sent
to: Chief Financial Officer -- Financial Operations, 445 12th Street,
S.W., Room 1-A625, Washington, D.C. 20554. Please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
8. IT IS FURTHER ORDERED that within 90 of days of the adoption of this
Consent Decree, A Radio Company, Inc. will provide the Bureau with a
written report on actions it has taken subsequent to the effective
date of this Order to confirm the Company is in compliance with the
rules and regulations referenced herein and resolved through the
adoption of this Consent Decree.
9. 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 A Radio Company, Inc. at its address of record and to
its counsel, Audrey Rasmussen, Hall, Estill, Hardwick, Gable, Golden &
Nelson, P.C., 1120 20th Street, NW, Suite 700 North Building,
Washington, DC 20036-3406.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Associate Chief, Enforcement Bureau
CONSENT DECREE
The Enforcement Bureau ("Bureau") and A Radio Company, Inc. ("A Radio"),
licensee of AM radio station WEGA in Vega Baja, Puerto Rico, by their
authorized representatives, hereby enter into this Consent Decree for the
purpose of terminating the Bureau's investigation into whether A Radio
violated Sections 73.48, 73.1350(a), and 73.3526 of the Commission's Rules
("Rules").
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. "Compliance Plan" means the Company-wide program described in this
Consent Decree.
e. "Effective Date" means the date on which the Commission releases the
Adopting Order.
f. "Forfeiture Order" means the Forfeiture Order issued to A Radio and
released on November 3, 2006.
g. "Investigation" means the investigation commenced by the Bureau with
its inspection of station WEGA on August 25, 2005 regarding possible
violations of Sections 73.49, 73.1350(a), and 73.3526 of the Rules.
h. "A Radio" means A Radio Company, Inc. and its predecessors-in-interest
and successors-in-interest.
i. "MO&O" means the Memorandum Opinion and Order issued to A Radio and
released on February 1, 2007.
j. "NAL" means the Notice of Apparent Liability for Forfeiture issued to
A Radio on October 25, 2005.
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 A Radio and the Commission.
m. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
II. BACKGROUND
2. Pursuant to Section 73.49 of the Rules, antenna towers having radio
frequency potential at the base must be enclosed within effective
locked fences or other enclosures. Individual tower fences need not be
installed if the towers are contained within a protective property
fence.
3. Pursuant to Section 73.1350(a) of the Rules, each licensee is
responsible for maintaining and operating its broadcast station in a
manner which complies with the technical rules set forth elsewhere in
this part and in accordance with the terms of the station
authorization.
4. Pursuant to Section 73.3526(e) of the Rules, commercial broadcast
stations are required to maintain for public inspection, a file
containing materials listed in that section. Section 73.3526(e)(12) of
the Rules requires licensees to place in the public inspection file,
for each calendar quarter, a list of the programs that have provided
the station's most significant treatment of community issues during
the preceding three month period ("Issues/Programs Lists").
5. On October 25, 2005, a resident agent of the San Juan Office issued a
NAL in the amount of $15,000 to A Radio. A Radio filed a response to
the NAL, but the Bureau found no basis upon which to reduce the
proposed forfeiture and issued the Forfeiture Order. A Radio filed a
petition for reconsideration of the Forfeiture Order, regarding the
fencing violation. On February 1, 2007, the Bureau released the MO&O
granting in part and denying in part A Radio's petition for
reconsideration and reducing the forfeiture to $14,000 based on A
Radio's good faith efforts to comply with Section 73.49 of the Rules.
A Radio filed an application for review of the MO&O, requesting that
the fencing violation be cancelled.
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. In consideration for the termination of said investigation, A Radio
withdraws its application for review of the MO&O.
8. Jurisdiction. A Radio 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.
9. 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
Commission. 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.
10. 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, A Radio 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 A Radio 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 A Radio with respect to A
Radio's basic qualifications, including its character qualifications,
to be a Commission licensee.
11. Compliance Plan. For purposes of settling the matters set forth
herein, A Radio agrees 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:
i. A Radio will ensure that it will compile and maintain in its stations'
public inspection files Issues/Programs Lists.
ii. A Radio will ensure that its stations operate its transmitters as
authorized in its stations' authorizations, including special
temporary authorizations.
iii. A Radio will repair the perimeter property fence surrounding station
WEGA and ensure that it remains intact.
Compliance Reports. A Radio will file compliance reports with the
Commission ninety days after the Effective Date, twelve months after the
Effective Date, and twenty-four month after the Effective Date. Each
compliance report shall include a compliance certificate from an officer,
as an agent of A Radio, stating that the officer has personal knowledge
that A Radio 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 George Dillon, Associate
Chief, Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W., Washington, D.C. 20554.
12. Voluntary Contribution. A Radio agrees that it will make a voluntary
contribution to the United States Treasury in the amount of eight
thousand dollars. A Radio shall make its voluntary contribution to the
United States Treasury, 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 above.
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). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
13. Waivers. A Radio 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. A Radio 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 A Radio nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and A Radio
shall waive any statutory right to a trial de novo. A Radio 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. Invalidation. In the event that this Consent Decree 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.
`
15. 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.
16. 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 A Radio does not expressly
consent) that provision will be superseded by such Commission rule or
order.
17. Successors and Assigns. A Radio agrees that the provisions of this
Consent Decree shall be binding on its successors and assigns.
18. 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.
19. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
20. 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.
21. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire April 9, 2010.
22. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
23. 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.
________________________________
George R. Dillon
Associate Chief
Enforcement Bureau
________________________________
Date
________________________________
Gerardo Angulo
President
A Radio Company, Inc.
________________________________
Date
47 C.F.R. S:S: 73.49, 73.1350(a), 73.3526.
47 U.S.C. S:S: 154(i), 503(b).
A Radio Company, Inc., Forfeiture Order, 21 FCC Rcd. 13046 (Enf. Bur.
South Central Region 2006) ("Forfeiture Order").
47 C.F.R. S:S: 73.49, 73.1350(a), 73.3526.
A Radio Company, Inc., Memorandum Opinion and Order, 22 FCC Rcd 2019 (Enf.
Bur. 2007) ("Memorandum Opinion and Order").
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632680001
(Enf. Bur., San Juan Office, released October 25, 2005).
47 C.F.R. S: 73.49.
47 C.F. R. S: 73.1350(a).
47 C.F.R. S: 73.3526(e).
47 C.F.R. S: 73.3526(e).
47 C.F.R. S: 73.3526(e)(12).
47 C.F.R. S: 73.3526(e)(12).
Federal Communications Commission DA 08-832
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Federal Communications Commission DA 08-832