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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of EB-10-IH-2083
)
LONG ISLAND UNIVERSITY PUBLIC RADIO FRN No. 0015679806
NETWORK )
Account No. 201132080014
Licensee of Noncommercial Educational )
Station WLIU(FM), Southampton, NY Facility ID No. 38340
)
)
ORDER
Adopted: October 1, 2010 Released: October 1, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into by
the Enforcement Bureau ("Bureau") and Long Island University Public
Radio Network, licensee of Station WLIU(FM), Southampton, New York
("Licensee"). The Consent Decree terminates the Bureau's investigation
into whether the Licensee and Peconic Public Broadcasting ("Peconic")
violated Section 310 of the Communications Act of 1934, as amended,
and Section 73.3540 of the Commission's Rules, by engaging in conduct
that exceeded the scope of a management agreement between the Licensee
and Peconic, thereby effectuating a possible de facto unauthorized
transfer of control.
2. The Bureau and the Licensee have negotiated the terms of the Consent
Decree that resolves 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 the Licensee 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) 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-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that the third-party complaint pending before
the Enforcement Bureau against the Licensee related to the
above-captioned investigation as of the date of this Consent Decree IS
DISMISSED.
8. IT IS FURTHER ORDERED that a copy of this Order and the Consent Decree
shall be sent by first-class, certified mail, return receipt requested to
Long Island University Public Radio Network, c/o John Crigler, Esq.,
Garvey Schubert Barer, Fifth Floor, 1000 Potomac Street N.W., Washington,
D.C., 20007.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No. EB-10-IH-2083
Long Island University Public Radio
Network ) FRN No. 0015679806
Licensee of Noncommercial Educational ) Acct. No. 201032080037
Station
) Facility ID No. 38340
WLIU(FM), Southampton, New York
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Long Island University Public
Radio Network ("Licensee"), by their authorized representatives,
hereby enter into this Consent Decree for the purpose of terminating
the Bureau's investigation into whether the Licensee 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. "Agreement" means the management agreement entered into between Long
Island University Public Radio Network and Peconic Public Broadcasting
on December 1, 2009.
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. "Complaint" means the third-party complaint received by the Commission
on February 20, 2010, alleging that Long Island University Public
Radio Network and Peconic Public Broadcasting engaged in an
unauthorized transfer of control.
g. "Compliance Plan" means the program described in this Consent Decree
at paragraph 9.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Investigation" means the Bureau's investigation of the Complaint
alleging, among other things, that LIU and Peconic violated Section
310 of the Act and Section 73.3540 of the Rules.
j. "Investigations and Hearings Division" means the Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, acting on behalf of the Enforcement Bureau.
k. "Licensee" or "LIU" mean Long Island University Public Radio Network,
licensee of noncommercial educational Station WLIU(FM).
l. "Parties" means Long Island University Public Radio Network and the
Bureau.
m. "Peconic" means Peconic Public Broadcasting.
n. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
o. "Station" means noncommercial educational Station WLIU(FM),
Southampton, New York (Facility ID No. 38340).
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 to a
local marketing or management agreement without engaging in an
unauthorized transfer of control. Such delegation must be limited,
however, to ensure 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, licensees engaged in a time broker or in a local
marketing or 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 Peconic (a
not-for-profit corporation established for the purpose of acquiring
WLIU(FM), and which had entered into an Agreement with LIU) had
assumed control of the Station without first obtaining Commission
approval. The Bureau began an investigation and issued letters of
inquiry to the Licensee and Peconic. The Licensee and Peconic timely
responded to the respective LOIs, each denying that it had engaged in
an unauthorized transfer of control. The Bureau and the Licensee
acknowledge that any proceedings that might result from the
Investigation and/or the Complaint would be time-consuming and require
substantial expenditure of public and private resources. In order to
conserve such resources and to ensure continued compliance by the
Licensee with the Act and the Commission's Rules, the Bureau and the
Licensee are entering into this Consent Decree in consideration of the
mutual commitments made herein. The terms of the Consent Decree
reflect consideration of the Licensee's current financial condition
and of the short duration of the alleged violation, among other
factors.
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. LIU agrees that the Bureau has jurisdiction over it 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 with prejudice. In
consideration for the termination of said Investigation and dismissal
of the Complaint, LIU 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, 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 LIU 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, 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 LIU with respect to its 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, LIU agrees to maintain a Compliance Plan related to its
future compliance with Section 310(d) of the Act, Section 73.3540 of
the Commission's Rules, and the Commission's Orders related thereto.
Such Compliance Plan will include, at a minimum, the following
components:
a. An officer of LIU ("Compliance Officer") will conduct a compliance
examination of the Licensee's subsidiaries, companies, or affiliates
that have negotiated local marketing or time brokerage/management
agreements. Such examination will be conducted, at a minimum, every
six months, beginning on the Effective Date.
b. The Compliance Officer shall also consult with telecommunications
counsel regarding the Licensee'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 the Compliance Plan will expire three years from
the Effective Date or upon LIU's complete assignment of all Commission
licenses, whichever is earlier.
10. Compliance Reports. The Licensee will file 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 the Compliance Officer, as an agent of and on behalf of LIU,
stating that he/she has personal knowledge that LIU (i) has
established operating procedures intended to ensure compliance with
the terms and conditions of this Consent Decree and with Section 310
of the Act and Section 73.3540 of the Commission's Rules, together
with an accompanying statement explaining the basis for the
certification; (ii) has been utilizing those procedures since the
previous Compliance Report was submitted; and (iii) is not aware of
any instances of non-compliance. The certification must comply with
Section 1.16 of the Rules and be subscribed to as true under penalty
of perjury in substantially the form set forth therein. If the
Compliance Officer cannot provide the requisite certification, he/she
shall provide the Commission with a detailed explanation of: (i) any
instances of non-compliance with this Consent Decree and the Rules,
and (ii) the steps that LIU has taken or will take to remedy each
instance of non-compliance and ensure future compliance, and the
schedule on which proposed remedial actions will be taken. 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, with a copy submitted electronically to Kenneth Scheibel at
Kenneth.Scheibel@fcc.gov and to Dana Leavitt at Dana.Leavitt@fcc.gov.
11. Termination Date. Unless stated otherwise, the requirements of the
Compliance Plan will expire three (3) years after the Effective Date.
12. Voluntary Contribution. The Licensee agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
$5,000. The Licensee shall make such contribution within 30 calendar
days of the Effective Date. Such payment must include the Account and
Facility Identification Number and the FRN Number referenced in the
caption of 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 Account Number in block number 23A (call sign/other ID), and enter
the letters "FORF" in block number 24A (payment type code). The
Licensee will also send an electronic notification on the date each
payment is made to: Hillary S. DeNigro (Hillary.Denigro@fcc.gov), Ben
Bartolome (Ben.Bartolome@fcc.gov), Kenneth M. Scheibel, Jr.
(Kenneth.Scheibel@fcc.gov), and Dana E. Leavitt
(Dana.Leavitt@fcc.gov).
13. Waivers. The Licensee waives any and all respective 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. The Licensee shall retain
the right 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 LIU nor the Commission shall
contest the validity of the Consent Decree or the Adopting Order, and
LIU shall waive any statutory right to a trial de novo. The 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 LIU does not expressly consent)
that provision will be superseded by such Commission rule or Order.
15. Successors and Assigns. The 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 them. 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 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
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.
________________________________
________________________________
Robert N. Altholz
P. Michele Ellison
Vice President for Finance
Chief, Enforcement Bureau
Long Island University Public Radio
________________________________ Network
Date ________________________________
Date
See 47 U.S.C. S: 310.
See 47 C.F.R. S: 73.3540.
See 47 U.S.C. S: 154(i).
See 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 Long Island University Public Radio Network, dated April
29, 2010 ("LIU LOI"); see also Letter from Kenneth M. Scheibel, Jr.,
Assistant Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, to Wallace A. Smith, General Manager,
Peconic Public Broadcasting, dated April 29, 2010 ("Peconic LOI").
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).
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, 715-16 (D.C. Cir. 1958); Phoenix Broadcasting Co., 44 FCC 2d
838 (1973).
See Letter from Ernest T. Sanchez, Esq., counsel for Peconic Public
Broadcasting, to Marlene H. Dortch, Secretary, Federal Communications
Commission, dated June 7, 2010 ("Peconic LOI Response").
See supra note 3.
See Letter from Robert N. Altholz, Vice President for Finance, Long Island
University Public Radio Network, to Marlene H. Dortch, Secretary, Federal
Communications Commission, dated June 7, 2010; Peconic LOI Response, supra
note 9.
Federal Communications Commission DA 10-1861
3
Federal Communications Commission DA 10-1861