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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) EB-10-IH-2083
Peconic Public Broadcasting ) FRN: 0003511110
Proposed Assignee for ) Account No. 201132080015
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 Peconic Public Broadcasting
("Peconic"), proposed assignee of Station WLIU(FM), Southampton, New
York. The Consent Decree terminates the Bureau's investigation into
whether Peconic and Long Island University Public Radio Network,
licensee of Station WLIU(FM) ("Licensee"), 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 Peconic and the Licensee, thereby
effectuating a possible de facto unauthorized transfer of control.
2. The Bureau and Peconic 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 Peconic 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 Peconic 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
Peconic Public Broadcasting, c/o Ernest T. Sanchez, Esq., The Sanchez Law
Firm, P.C., 2300 M Street N.W., Suite 800, Washington, D.C. 20037.
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
)
Peconic Public Broadcasting FRN: 0003511110
)
Proposed Assignee for Acct. No. 201032080038
)
Station WLIU(FM), Southampton, NY Facility ID No. 38340
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Peconic Public Broadcasting
("Peconic"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Bureau's
investigation into whether Peconic 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 Long Island University Public Radio
Network 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 Peconic Public Broadcasting and the Bureau.
m. "Peconic" means Peconic Public Broadcasting.
n. "Rules" means the Commission's regulations found in Title 47 of the
Code 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 Peconic and LIU. Peconic and LIU timely responded to the
respective LOIs, each denying that it had engaged in an unauthorized
transfer of control. The Bureau and Peconic 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 Peconic with the Act and the
Commission's Rules, the Bureau and Peconic are entering into this
Consent Decree in consideration of the mutual commitments made herein.
The terms of the Consent Decree reflect consideration of Peconic'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. Peconic 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, Peconic 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 Peconic 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 Peconic 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, Peconic 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. The President of Peconic will conduct a compliance examination of
Peconic'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 President of Peconic shall also consult with telecommunications
counsel regarding Peconic'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 Peconic's complete assignment of all
Commission licenses, whichever is earlier.
10. Compliance Reports. Peconic 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 President of Peconic, as an agent of and on behalf of
Peconic, stating that he/she has personal knowledge that Peconic has
(i) 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 compliance
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 certifications shall 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
President of Peconic cannot provide the requisite certification,
he/she, as an agent of and on behalf of Peconic, 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 Peconic 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. Peconic agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $5,000.
The contribution will be paid in ten monthly installments of $500,
payable as follows: $500 within 30 calendar days of the Effective Date
and the remaining $500 payments on or before the twentieth day of each
succeeding month. All payments 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). Peconic 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. Peconic 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. Peconic 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 Peconic nor the Commission shall
contest the validity of the Consent Decree or the Adopting Order, and
Peconic shall waive any statutory right to a trial de novo. Peconic
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 Peconic does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
15. Successors and Assigns. Peconic 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.
________________________________
________________________________
Wallace A. Smith
P. Michele Ellison
President
Chief, Enforcement Bureau
Peconic Public Broadcasting
________________________________
________________________________
Date
Date
See Application for Consent to Assignment of Broadcast Station
Construction Permit or License, File Number BALED-20100316ABB, filed March
16, 2010.
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 Peconic LOI Response, supra note 9; see also 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.
[Author ID1: at Fri Dec 13 15:45:52 1901 ]
Federal Communications Commission DA 10-1862
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Federal Communications Commission DA 10-1862