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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
File No. EB-07-IH-5265
In the Matter of )
NAL Account No.
PAYSON COUNCIL FOR THE MUSICAL ARTS, INC. ) 201032080009
Licensee of Noncommercial Educational ) Facility ID No. 134059
Station KRIM-LP, Payson, Arizona
) FRN No. 0004296174
)
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Payson Council for the Musical
Arts, Inc. ("Licensee"), by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Enforcement
Bureau's above-referenced investigation into whether Licensee violated
Section 399B of the Communications Act of 1934, as amended, and Section
73.503(d) of the Commission's rules, in connection with the broadcast by
Licensee of underwriting acknowledgments over its noncommercial
educational FM radio station, KRIM-LP, Payson, Arizona.
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. "Adopting Order" means an Order by 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. "Complaints" mean the third-party complaints alleging violations of
the Commission's Underwriting Laws, dated August 20, 2007 and December
5, 2007.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation concerning the Complaints
commenced by the Bureau's August 20, 2007 and September 12, 2008
Letters of Inquiry regarding whether Licensee violated the
Commission's Underwriting Laws in connection with its operation of the
Station on June 4, 2007 and October 23, 2007.
i. "Licensee" means the Payson Council for the Musical Arts, Inc. and its
predecessors-in-interest and successors-in-interest as licensee of the
Station.
j. "Parties" mean Licensee and the Bureau.
k. "Rules" mean the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
l. "Station" means low-power noncommercial educational FM radio station
KRIM-LP, Payson, Arizona (Facility ID No. 134059).
m. "Underwriting Laws" mean Section 399B of the Communications Act of
1934, 47 U.S.C. S: 399b, and Section 73.503(d) of the Commission's
Rules, 47 C.F.R. S: 73.503(d).
II. BACKGROUND
3. Pursuant to Section 399B(a) of the Act and Section 73.503(d) of the
Rules, advertisements are defined as program material broadcast "in
exchange for any remuneration" and intended to "promote any service,
facility, or product" of for-profit entities. Section 399B(b)(2)
specifically provides that noncommercial educational stations may not
broadcast advertisements. Although contributors of funds to such
stations may receive on-air acknowledgements of their support, the
Commission has held that such acknowledgements may be made for
identification purposes only, and should not promote the contributors'
products, services, or businesses. Specifically, such announcements
may not contain comparative or qualitative descriptions, price
information, calls to action, or inducements to buy, sell, rent or
lease. At the same time, however, the Commission has acknowledged that
it is at times difficult to distinguish between language that promotes
versus that which merely identifies the underwriter and is consistent
with the Commission's Rules and decisions establishing compliant
underwriting announcements. Consequently, the Commission expects
licensees to exercise reasonable, "good faith" judgment in this area,
and affords some latitude to the judgments of licensees who do so.
4. On August 20, 2007, the Bureau inquired about a complaint alleging
that Licensee had aired advertisements in violation of the
Underwriting Laws on June 4, 2007. Licensee responded on September 26,
2007, and provided applicable transcripts and recordings of the
inquired-of material. On September 12, 2008, the Bureau inquired about
a complaint alleging that Licensee had aired additional advertisements
in violation of the Underwriting Laws on October 23, 2007. Licensee
responded on October 9, 2008, and provided additional transcripts and
recordings of the announcements. The announcements may have violated
the Underwriting Laws because they appear to exceed the bounds of what
is permissible and within licensee's discretion under the Act and
pertinent Commission precedent. With respect to the issue of liability
for any Commission rule violations that have occurred, Licensee also
provided documentation, supported by affirmations, attempting to
support its claim of financial hardship. The Bureau finds Licensee's
financial showing credible in all respects. In arriving at the
voluntary contribution amount, the Bureau, therefore, considers not
only the nature of the misconduct in question, but also Licensee's
limited ability to pay.
III. TERMS OF AGREEMENT
5. 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.
6. Jurisdiction. Licensee 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.
7. 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.
8. 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 Complaints. In consideration for the
termination of said Investigation and dismissal of the Complaints,
Licensee 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 Licensee concerning the matters that were the subject
of the Investigation or the Complaints. 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 Licensee
with respect to Licensee's basic qualifications, including its
character qualifications, to be a Commission licensee or to hold
Commission authorizations.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Licensee 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:
a. Licensee will utilize a multi-level review procedure for underwriting
content to be aired on the Station. All scripts of announcements will
continue to be reviewed by Licensee's President, prior to broadcast, for
compliance with the Underwriting Laws.
b. Licensee will train employees on acceptable underwriting content that
complies with the Underwriting Laws. Within thirty days of being hired by
Licensee, any new Station employee will be trained as to acceptable
underwriting content that complies with the Underwriting Laws. In
addition, Licensee Station employees will receive refresher training, on
an annual basis, regarding existing guidelines and, where applicable,
pertinent changes to the Underwriting Laws.
c. Licensee will also implement and maintain a plan to educate prospective
underwriters about appropriate underwriting content and how Licensee
incorporates such underwriting content in the messages that it prepares
for underwriter approval and eventual broadcast. To that end, Licensee
will summarize the Underwriting Laws for each client before it accepts any
contract with the prospective underwriter to air underwriting messages
over the Station and prepares the underwriting message for the
underwriter's review. Licensee will not broadcast any announcement that
does not comply with the Underwriting Laws.
d. Licensee will make good faith efforts, with respect to independently
produced programming broadcast on the Station, to obtain from the
distributors of such programming the copy for underwriting announcements
contained in such programming in advance of such programming's broadcast,
for the purposes of independently reviewing such copy for compliance with
the Underwriting Laws.
10. Compliance Reports. Licensee 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 upon
expiration of this Consent Decree, three years after the Effective Date.
Each compliance report shall include a compliance certificate from an
officer, as an agent of Licensee, stating that the officer has personal
knowledge that Licensee has established and maintained on an ongoing
basis operating procedures intended to ensure compliance with this Consent
Decree, together with an accompanying statement explaining the basis for
the officer's compliance certification. Each compliance report will
describe any significant difficulties Licensee has encountered during the
reporting period in ensuring compliance with the Underwriting Laws, what
steps it has taken to resolve those difficulties, and the success of those
steps in doing so. All compliance reports shall be submitted to the Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, Room 4-C330, 445 12th Street, S.W., Washington,
D.C. 20554.
11. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire three (3) years after the Effective Date.
12. Voluntary Contribution. Licensee agrees that it will make a voluntary
contribution to the United States Treasury in the amount of seven thousand
dollars ($7,000.00). Such contribution shall be made in ten (10) monthly
payments of seven hundred dollars ($700.00) each. The first payment is to
be made within thirty (30) calendar days of the Effective Date, and the
balance paid in subsequent consecutive monthly installments as set forth
above. The payments must be made by check or similar instrument, payable
to the order of the Federal Communications Commission. The payments must
include the NAL/Account Number and FRN Number referenced in the caption to
the Adopting Order. Payments by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payments 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 payments 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). Licensee will also send electronic notification on
the dates said payments are made to Hillary.DeNigro@fcc.gov,
Ben.Bartolome@fcc.gov, Kenneth.Scheibel@fcc.gov, and to
Jennifer.Lewis@fcc.gov.
13. Waivers. Licensee 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. Licensee 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
Licensee nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Licensee shall waive any statutory right
to a trial de novo. Licensee 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 Licensee does not expressly consent) that
provision will be superseded by such Commission rule or Order.
15. Successors and Assigns. Licensee 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
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. The Parties agree that this Consent
Decree is for settlement purposes only and that by agreeing to this
Consent Decree, Licensee does not admit or deny noncompliance, violation
or liability for violating the Act, the Commission's Rules or Orders in
connection with the matters that are the subject of this Consent Decree.
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.
________________________________
P. Michele Ellison
Acting Chief
Enforcement Bureau
________________________________
Date
________________________________
Steve Bingham
President
Payson Council for the Musical Arts, Inc.
________________________________
Date
See 47 U.S.C. S: 399b.
See 47 C.F.R. S: 73.503(d).
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Licensee, dated August 20, 2007
("August 20th LOI"); Letter from Benigno E. Bartolome, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, to Licensee,
dated September 12, 2008 ("September 12th LOI").
See 47 U.S.C. S: 399b(a); 47 C.F.R S: 73.507(d).
See 47 U.S.C. S: 399b(b)(2).
See Commission Policy Concerning the Noncommercial Nature of Educational
Broadcasting Stations, Public Notice (1986), republished, 7 FCC Rcd 827
(1992) ("Public Notice").
See id.
See Xavier University, Letter of Admonition, issued November 14, 1989
(Mass Med. Bur.), recons. granted, Memorandum Opinion and Order, 5 FCC Rcd
4920 (1990).
See id.
Federal Communications Commission DA 09-2064
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Federal Communications Commission DA 09-2064