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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
)
)
)
)
In the Matter of
)
Tama Broadcasting, Inc.
)
Parent of
)
Tama Radio Licenses of Tampa, Florida,
Inc., Licensee of Stations: )
File No. EB-08-IH-0692
WTMP(AM), Egypt Lake, Florida )
FRN No. 0006042295
WTMP-FM, Dade City, Florida )
Acct. No. 200932080023
Tama Radio Licenses of Jacksonville, FL, )
Inc., Licensee of Stations: Facility ID No. 74108
)
WHJX(FM), Baldwin, Florida Facility ID No. 15239
)
WSJF(FM), St. Augustine Beach, Florida Facility ID No. 52032
)
WSJS(FM), Fernandina Beach, Florida Facility ID No. 53672
)
WFJO(FM), Folkston, Georgia Facility ID No. 40483
)
Tama Radio Licenses of Savannah, GA, Facility ID No. 22005
Inc., Licensee of Stations: )
Facility ID No. 54805
WSSJ(FM), Rincon, Georgia )
Facility ID No. 64428
WSGA(FM), Hinesville, Georgia )
Facility ID No. 7816
WTHG(FM), Hinesville, Georgia )
FRN No. 0015502016
and )
Acct. No. 200932080023
D.B. Zwirn & Co., L.P. )
Parent of: )
D.B. Zwirn Special Opportunities Fund, )
L.P., Bernard Radio LLC; and
)
Straight Way Radio
)
)
)
)
)
)
)
ORDER
Adopted: February 17, 2009 Released: February 17, 2009
By the Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into by
the following parties: the Enforcement Bureau (the "Bureau"); Tama
Broadcasting, Inc., parent of the above-captioned licensees ("Tama,"
or the "Licensee"); and D.B. Zwirn & Co., L.P., ultimate parent of
Bernard Radio LLC and Straight Way Radio ("Zwirn") (collectively, the
"Parties"). The Consent Decree terminates the Bureau's investigation
into whether the Licensee and Zwirn, either jointly or separately,
violated Section 310(d) of the Communications Act of 1934, as amended
(the "Act"), and Section 73.3540 of the Commission's Rules by engaging
in conduct that exceeded the scope of a local marketing agreement
between Tama and Zwirn, thereby effectuating a de facto unauthorized
transfer of control.
2. The Parties have negotiated the terms of the Consent Decree that
resolve this matter. 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 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 Tama and Zwirn possess 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 Section 4(i) of the Act
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 all third-party complaints before the
Enforcement Bureau filed against Tama Broadcasting, Inc., and D.B.
Zwirn & Co., L.P., regarding the above-captioned investigation as of
the date of this Consent Decree ARE DISMISSED.
8. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail, postage prepaid, and certified
mail, return receipt requested, to Francisco R.
Montero, Esquire, Fletcher, Heald & Hildreth, P.L.C., 1300 North 17th
Street, 11th Floor, Arlington, Virginia, 22209; Richard J. Bodorff,
Esquire, and Gregory L. Masters, Esquire, Wiley Rein LLP, 1776 K Street
NW, Washington, D.C. 20006; and Percy Squire, Esquire, 514 S. High Street,
Columbus, Ohio, 43215.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
)
)
)
)
In the Matter of
)
Tama Broadcasting, Inc.
)
Parent of
)
Tama Radio Licenses of Tampa, Florida,
Inc., Licensee of Stations: )
File No. EB-08-IH-0692
WTMP(AM), Egypt Lake, Florida )
FRN No. 0006042295
WTMP-FM, Dade City, Florida )
Acct. No. 200932080023
Tama Radio Licenses of Jacksonville, FL, )
Inc., Licensee of Stations: Facility ID No. 74108
)
WHJX(FM), Baldwin, Florida Facility ID No. 15239
)
WSJF(FM), St. Augustine Beach, Florida Facility ID No. 52032
)
WSJS(FM), Fernandina Beach, Florida Facility ID No. 53672
)
WFJO(FM), Folkston, Georgia Facility ID No. 40483
)
Tama Radio Licenses of Savannah, GA, Facility ID No. 22005
Inc., Licensee of Stations: )
Facility ID No. 54805
WSSJ(FM), Rincon, Georgia )
Facility ID No. 64428
WSGA(FM), Hinesville, Georgia )
Facility ID No. 7816
WTHG(FM), Hinesville, Georgia )
FRN No. 0015502016
and )
Acct. No. 200932080023
D.B. Zwirn & Co., L.P. )
Parent of )
D.B. Zwirn Special Opportunities Fund, )
L.P.; Bernard Radio LLC; and
)
Straight Way Radio
)
)
)
)
)
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau"), Tama Broadcasting, Inc., ("Tama" or
the "Licensee"), and D.B. Zwirn & Co., L.P. ("Zwirn"), by their
authorized representatives, hereby enter into this Consent Decree for
the purpose of terminating the Bureau's investigation into whether
Tama and Zwirn violated Section 310(d) of the Communications Act of
1934, as amended, and Section 73.3540 of the Commission's Rules.
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 of the Commission 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. "Complaint" means any third-party complaint that may have been
received by or is otherwise in the possession of the Commission or
Bureau alleging that Tama Broadcasting, Inc., and D.B. Zwirn & Co.,
L.P., engaged in an unauthorized transfer of control.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 9.
g. "Effective Date" means the date on which the Commission releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau's
Investigations and Hearings Division's August 20, 2008, Letters of
Inquiry regarding whether Tama Broadcasting, Inc., and D.B. Zwirn &
Co., L.P., engaged in an unauthorized transfer of control with respect
to the Stations.
i. "Investigations and Hearings Division" means the Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, acting on behalf of the Enforcement Bureau.
j. "LMA" means the local marketing agreement entered into between Tama
Broadcasting, Inc., and D.B. Zwirn's subsidiary, Bernard Radio LLC, on
September 10, 2007, and Bernard Radio LLC's successor, Straight Way
Radio.
k. "Parties" means Tama Broadcasting, Inc., D.B. Zwirn & Co., L.P, and
the Bureau.
l. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
m. "Licensee" means Tama Broadcasting, Inc., parent of Tama Radio
Licenses of Jacksonville, FL, Inc.; Tama Radio Licenses of Savannah,
GA, Inc.; and Tama Radio Licenses of Tampa, Florida, Inc., licensees
of the captioned stations.
n. "Station" or "Stations" means the nine radio stations specified in the
caption and that are licensed to subsidiaries of Tama Broadcasting,
Inc.
II. BACKGROUND
3. Section 310(d) of the Act and Section 73.3540 of the Rules prohibit
the transfer of control of a broadcast station without prior
Commission consent. A licensee may, however, delegate day-to-day
functions to an agent pursuant to a time brokerage agreement or local
management agreement without engaging in an unauthorized transfer of
control. Such delegation must be limited, however, such that the
licensee retains ultimate control of basic station policies. The
touchstone of control "is not divining who executes the station's
programming, personnel and finance responsibilities," but rather who
establishes policies governing these three areas and exercises
ultimate control. To ensure the appropriate level of control, a
licensee engaged in a time broker or local management agreement
"should be ready and able to operate independently from the broker at
anytime it believes the arrangement does not fulfill its public
interest responsibilities."
4. The Bureau received a Complaint alleging that Zwirn, a creditor of
Tama's, had exceeded the terms of a local marketing agreement and
thereby assumed control of Tama's Stations. The Bureau began an
investigation and issued letters of inquiry to Tama and Zwirn.
Tama and Zwirn responded to the respective LOIs, each denying that it had
engaged in an unauthorized transfer of control.
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. Tama and Zwirn agree that the Bureau has jurisdiction
over them and the matters contained in this Consent Decree and that it
has the authority to enter into and adopt this Consent Decree.
7. Effective Date; Violation. 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 Complaint. The Parties agree that this
Consent Decree does not constitute an adjudication of the merits of
the matters alleged in the Complaint or any finding on the facts or
law regarding any compliance or noncompliance by Tama and Zwirn with
respect to Section 310(d) of the Act or Sections 73.3540 and 73.3613
of the Rules. In consideration for the termination of said
Investigation and dismissal of the Complaint, Tama and Zwirn agree to
the terms, conditions, and procedures contained herein, as such terms,
conditions and procedures apply to them individually. The Bureau
agrees that in the absence of new material evidence, the Bureau will
not use the facts developed in this Investigation through the
Effective Date, or the existence of this Consent Decree, to institute
any new proceeding, formal or informal, or take any action against
Tama Broadcasting, Inc., D.B. Zwirn & Co. L.P., or their affiliates,
concerning the matters that were the subject of the Investigation. The
Bureau further agrees that, in the absence of new material evidence,
it will not use the facts developed in
this Investigation through the Effective Date, or the existence of this
Consent Decree, to institute any proceeding, formal or informal, or take
any action against Tama Broadcasting, Inc., D.B. Zwirn & Co., L.P., or
their affiliates, with respect to their basic qualifications, including
character qualifications, to be a Commission licensee. In addition, the
Bureau agrees that it will not provide any documents within its possession
in connection with the Investigation to any party or entity, except as may
be necessary during the course of any future investigation into possible
violations of the Act or the Rules or Commission orders by the Cherrys, or
as otherwise expressly mandated by law or as required by an order of a
court or other administrative body.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Tama and Zwirn each agree to maintain a Compliance Plan
related to each entity's respective future compliance with Section
310(d) of the Act, Section 73.3540 of the Commission's Rules, and the
Commission's Orders related thereto. Each Compliance Plan will
include, at a minimum, the following components:
a. The President of D.B. Zwirn & Co., L.P., and the President of Tama
Broadcasting, Inc., will each conduct a compliance examination of
their respective subsidiaries, companies, or affiliates that have
negotiated local marketing or time brokerage agreements. Such
examination will be conducted, at a minimum, every six (6) months,
beginning on the Effective Date.
b. The President of Zwirn and the President of Tama shall also consult
with their respective telecommunications counsel regarding their
respective entity's overall compliance with Section 310(d) of the Act
and Section 73.3540 of the Commission's Rules on an annual basis, if
not more frequently.
c. The requirements of each Compliance Plan will expire three (3) years
from the Effective Date or upon Tama's or Zwirn's complete assignment
of all Commission licenses, whichever is earlier.
10. Compliance Reports. Tama and Zwirn will file their respective
compliance reports with the Commission 12 months, 24 months, and 36
months following the Effective Date. Each compliance report shall
include a compliance certificate from an officer, as an agent of the
reporting entity, stating that the officer has personal knowledge that
the reporting entity has satisfied the terms of the respective
compliance plan set forth herein, together with an accompanying
statement explaining the basis for the officer's compliance
certification. All compliance reports shall be submitted to the Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 4-C330,
Washington, D.C. 20554.
11. Voluntary Contribution. Tama and Zwirn agree that within five (5)
calendar days after the Effective Date, they will make a voluntary
contribution to the United States Treasury totalling eighteen thousand
dollars ($18,000). The payment must include the Account Number and the
FRN Number of each respective payee 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. Payments
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).
Tama and Zwirn will also send an electronic notification on the date each
said payment is made to: Hillary S. DeNigro (Hillary.Denigro@fcc.gov),
Kenneth M. Scheibel, Jr. (Kenneth.Scheibel@fcc.gov), and Dana E. Leavitt
(Dana.Leavitt@fcc.gov).
12. Waivers. Tama and Zwirn waive any and all respective rights each 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. Tama and Zwirn
shall retain their respective rights to challenge Commission
interpretation of the Consent Decree or any terms contained herein. If
any Party (or the United States on behalf of the Commission) brings a
judicial action to enforce the terms of the Adopting Order, neither
Tama nor Zwirn nor the Commission shall contest the validity of the
Consent Decree or the Adopting Order, and Tama and Zwirn each shall
waive any statutory right to a trial de novo. Tama and Zwirn each
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. 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 Tama Broadcasting, Inc., or D.B.
Zwirn & Co. L.P. do not expressly consent) that provision will be
superseded by such Commission rule or Order.
14. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Bureau and Tama
Broadcasting, Inc., and the Bureau and D.B. Zwirn & Co., L.P. 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.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of all Parties.
16. 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.
17. Authorized Representative. Each party represents and warrants to the
others that it has full power and authority to enter into this Consent
Decree.
18. 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
________________________________
________________________________
David C. Lee, President
Date
D.B. Zwirn & Co., L.P.
________________________________
________________________________
Jeffrey Scott, Member, Board of
Directors Date
Tama Broadcasting, Inc.
________________________________
Date
See 47 U.S.C. S: 310(d).
See 47 C.F.R. S: 73.3540.
Although the Bureau is terminating its investigation into whether Tama
Broadcasting, Inc., and Zwirn engaged in conduct that constituted an
unauthorized transfer of control, the Bureau retains its right to
investigate the conduct of Dr. Glenn W. Cherry, Board of Directors
member and former President/CEO of Tama, and his brother, Charles W.
Cherry II, Board of Directors member and former Vice President/General
Counsel and Secretary of Tama.
The Bureau's assessment that Tama Broadcasting, Inc., possesses the
basic qualifications to hold or obtain a Commission license or
authorization applies to Tama's qualifications as a corporate entity
but does not foreclose the Bureau from making a separate assessment
into whether the conduct of Glenn or Charles Cherry raises questions
regarding their basic qualifications to hold or obtain a Commission
license or authorization.
See 47 U.S.C. S: 154(i); 47 C.F.R. S:S: 0.111, 0.311.
See 47 U.S.C. S: 310(d).
See 47 C.F.R. S: 73.3540.
See Letter from Kenneth M. Scheibel, Jr., Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, to Glenn Cherry, President/CEO, Tama
Broadcasting, Inc., dated August 20, 2008; and Letter from Kenneth M.
Scheibel, Jr., to Tama Broadcasting, Inc., c/o Ted Bolton, dated
October 10, 2008 ("Tama LOIs"); see also Letter from Kenneth M.
Scheibel, Jr., Assistant Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, to Straight Way
Radio, Bernard Radio LLC, and D.B. Zwirn Special Opportunities Fund,
L.P., c/o Daniel Zwirn, dated August 20, 2008 ("Zwirn LOI").
See 47 U.S.C. S: 310(d); 47 C.F.R. S: 73.3540.
See 47 U.S.C. S: 310(d); 47 C.F.R. S: 73.3540(a).
See Salem Broadcasting, Inc., Notice of Apparent Liability for
Forfeiture, 6 FCC Rcd 4172 (Mass Media Bur. 1991). See also WGPR,
Inc., Memorandum Opinion & Order, 10 FCC Rcd 8140, 8142 (1995),
vacated on other grounds, sub nom. Serafyn v. FCC, 149 F.3d 1213 (D.C.
Cir. 1998). Under certain circumstances, a licensee may be required to
file with the Commission a copy of its local marketing agreement. See
47 C.F.R. S: 73.3613; see also David A. Davila, Memorandum Opinion and
Order, 6 FCC Rcd 2897 (1991); Benito Rish, Memorandum Opinion and
Order, 7 FCC Rcd 6036 (1992) (subsequent history omitted); and Black
Television Workshop, Decision, 8 FCC Rcd 4192 (1993) (subsequent
history omitted).
See WGPR, Inc., 10 FCC Rcd at 8142.
Id.
Id. at 8145. See Salem Broadcasting, Inc., 6 FCC Rcd at 4173; Bee
Broadcasting Associates, Hearing Designation Order and Notice of
Apparent Liability, 5 FCC Rcd 6584 (1990). See generally WLOX
Broadcasting Company, 260 F.2d 712, 715-716 (D.C. Cir. 1958); Phoenix
Broadcasting Co., 44 FCC 2d 838 (1973).
See Tama LOIs; Zwirn LOI.
See Letter from Francisco R. Montero, Esq., counsel for Tama
Broadcasting, to Marlene H. Dortch, Secretary, Federal Communications
Commission, dated November 21, 2008, at 2-10, 13 (Tama noted that on
September 5, 2008, the Supreme Court of the State of New York
appointed a temporary receiver to assume control of the Licensee's
assets. See id. at 2-3, 8-9, and Exhibit A. Tama also noted that it
apparently failed to file a copy of the LMA with the Commission, as
required by Section 73.3613 of the Rules. See id. at 11). See also
Letter from Gregory L. Masters, Esq., counsel for D.B. Zwirn & Co.,
L.P., D.B. Zwirn Special Opportunities Fund, L.P., Bernard Radio LLC,
and Straight Way Radio, LLC, to Marlene H. Dortch, Secretary, Federal
Communications Commission, dated October 6, 2008. Citing Sections
0.457(d), 0.457(f), 0.457(g)(1)-(2), and 0.459(b) of the Rules, Zwirn
requested confidential treatment of its LOI responses; the Bureau has
not yet ruled on the request.
Notwithstanding the foregoing, the Bureau retains its authority to
investigate the conduct of Dr. Glenn Cherry, Board of Directors member
and former President/CEO of Tama, and of Charles W. Cherry II, Board
of Directors member and former Vice President/General Counsel and
Board Secretary of Tama. The Bureau expressly reserves the right to
use facts developed during the course of this Investigation in any
subsequent investigation of Glenn and Charles Cherry. See, e.g.,
Medford Broadcasters Inc., Decision, 34 FCC 2d 989, 992 (1972).
See note 12, supra. The Bureau reserves its right to use facts
developed during the course of this Investigation in any subsequent
investigation regarding whether the conduct of Glenn and/or Charles
Cherry violates any statute or rule administered by the Commission, or
negatively affects their basic qualifications to hold or obtain a
Commission license or authorization.
The Consent Decree between the Bureau and Tama Broadcasting, Inc.,
applies only to Tama as a corporate licensing entity and does not
constitute a settlement between the Bureau and Glenn or Charles
Cherry. See note 12, supra.
Federal Communications Commission DA 09-225
2
Federal Communications Commission DA 09-225