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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-06-IH-1138
BELA TV, LLC ) NAL/Account No. 201032080003
Former Licensee of Television ) FRN 0010754067
Station KBEH (TV), Oxnard,
California ) Facility ID No. 56384
)
CONSENT DECREE
1. The Enforcement Bureau and Bela, LLC, by their authorized
representatives, hereby enter into this Consent Decree for the purpose
of terminating the Enforcement Bureau's investigation into alleged
violations of Section 1464 of Title 18, United States Code and Section
73.3999 of the Commission's rules, by the broadcast of indecent,
profane or obscene material over Station KBEH (TV), Oxnard,
California.
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. "Bela" means Bela TV, LLC and its predecessors-in-interest and
successors-in-interest, if any.
d. "Bureau" means the Enforcement 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 Bureau, as
of the Effective Date, alleging violations of the Commission's
Indecency Rules by Station KBEH (TV), Oxnard, California.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Indecency Rules" means 18 U.S.C. S: 1464 and 47 C.F.R. S: 73.3999.
i. "Investigation" means the investigation commenced by the Bureau's
letter of inquiry dated October 30, 2006, regarding whether Bela
violated the Commission's Indecency Rules in connection with its
operation of Station KBEH (TV) on February 24, 2006.
j. "Parties" means Bela and the Bureau.
k. "Rules" means the Commission's regulations found in Title 47 of the
Code of 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, Section 73.3999 of
the Commission's rules provides that radio and television stations
shall not broadcast obscene material at any time, and consistent with
a subsequent statute and court case, shall not broadcast indecent
material between 6:00 a.m. and 10:00 p.m. Profane material also may
not be aired during this time period.
4. The Commission received multiple complaints alleging that Station KBEH
(TV) had violated the Commission's Indecency Rules during its
broadcast of the program "Atrevete" on February 24, 2006. On October
30, 2006, the Bureau issued a letter of inquiry ("LOI") to Bela. This
LOI directed Bela to confirm whether Station KBEH (TV) had aired the
complained-of material and, if so, to provide a recording and written
transcript of the broadcast, as well as all documents relating or
referring to the broadcast. On December 13, 2006, Bela responded to
the LOI.
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. Bela 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 Complaint. In consideration for the
termination of said Investigation and dismissal of the Complaint, Bela
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 Bela or any successor-in-interest to Bela 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 Bela
or any successor-in-interest to Bela with respect to any basic
qualifications, including its character qualifications, to be a
Commission licensee or to hold Commission authorizations.
9. Voluntary Contribution. Bela agrees that it will make a voluntary
contribution to the United States Treasury in the amount of
twenty-five thousand dollars ($25,000.00). The payment in full will be
made within five (5) calendar days after 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 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). Bela will also send electronic notification on
the date said payment is made to Hillary.DeNigro@fcc.gov,
Ben.Bartolome@fcc.gov, Kenneth.Scheibel@fcc.gov, and
Anita.Patankar-Stoll@fcc.gov.
10. Waivers. Bela 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. Bela 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 Bela nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Bela shall
waive any statutory right to a trial de novo. Bela 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.
11. 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 conflicting with the
terms of this Consent Decree to which Bela does not expressly consent)
that provision will be superseded by such Commission rule or Order.
12. Successors and Assigns. The Parties agree that the provisions of this
Consent Decree shall be binding on and applicable to Bela's
successors, assigns, and transferees, if any.
13. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. Bela
admits, solely for the purpose of this Consent Decree and for FCC
civil enforcement purposes that its broadcast of the complained-of
material violated the Commission's Indecency Rules.
14. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
15. 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.
16. Authorized Representative. Each party represents and warrants to the
others that it has full power and authority to enter into this Consent
Decree.
17. 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
Chief
Enforcement Bureau
________________________________
Date
________________________________
Robert Behar
President
Bela, LLC, as successor-in-interest to
Bela TV, LLC
________________________________
Date
Bela TV, LLC ("Bela TV") was dissolved on August 15, 2008. Bela TV's
successor-in-interest is Bela TV's sole member, Bela, LLC. See Letter from
Paul J. Feldman, Esq., attorney for Bela TV, LLC, to Hillary S. DeNigro,
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated April 2, 2009.
See 18 U.S.C. S: 1464; 47 C.F.R. S: 73.3999.
We note that consent to the assignment of Station KBEH was granted on
February 14, 2008. Prior to this assignment, Bela entered into an
assignment agreement on February 11, 2008, which required the Licensee to
place funds in escrow to cover potential liability. In accordance with
the assignment agreement, this consent decree does not affect or involve
the assignee of the Station (which has no liability or potential liability
associated with the alleged rule violations discussed in Paragraph 1
above).
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to Bela TV, LLC, dated October 30, 2006 ("LOI").
See 18 U.S.C. S: 1464.
See 47 C.F.R. S: 73.3999.
See Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106 Stat.
949 (1992) (setting the safe harbor of 10:00 p.m. to 6:00 a.m. for the
broadcast of indecent material); Action for Children's Television v. FCC,
58 F.3d 654, 656 (D.C. Cir 1995) (en banc) (affirming restrictions
prohibiting the broadcast of indecent material between the hours of 6:00
a.m. and 10:00 p.m.) ("ACT III"), cert. denied, 516 U.S. 1072 (1996).
See Complaints Against Various Licensees Regarding Their Airing of the
"Golden Globe Awards" Program, Memorandum Opinion and Order, 19 FCC Rcd
4975, 4981 (2004), petitions for stay and reconsideration pending.
See LOI at 4.
See Letter from Harry F. Cole, Counsel to Bela TV, LLC, to Marlene H.
Dortch, Secretary, Federal Communications Commission, dated December 13,
2006 ("LOI Response").
Federal Communications Commission DA 08-2391
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