Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-09-NY-0301
)
Luna Park Housing Corporation NAL/Acct. No.: 201032380004
)
Brooklyn, New York FRN: 0009 1764 96
)
)
ORDER
Adopted: December 21, 2010 Released: December 22, 2010
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") of the Federal
Communications Commission ("FCC" or "Commission") and Luna Park
Housing Corporation ("Luna Park"). The Consent Decree terminates an
investigation by the Bureau against Luna Park related to the operation
of an unlicensed broadcast station on 99.9 MHz in Brooklyn, New York,
in violation of section 301 of the Communications Act of 1934, as
amended ("Act").
2. The Bureau and Luna Park have negotiated the terms of the Consent
Decree that resolve 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 without
imposing a forfeiture.
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 Luna Park 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 sections 4(i) and 503(b)
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 and the proposed forfeiture in the Notice of Apparent
Liability for Forfeiture issued on January 8, 2010 against Luna Park
WILL NOT BE IMPOSED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class and certified mail, return receipt requested,
to counsel for Luna Park, Adam Leitman Bailey and Leonard H. Ritz, Adam
Leitman Bailey, P.C., 120 Broadway, 17th Floor, New York, New York 10271.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director, Northeast Region
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-09-NY-0301
)
Luna Park Housing Corporation NAL/Acct. No.: 201032380004
)
Brooklyn, New York FRN: 0009 1764 96
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Luna Park Housing Corporation
("Luna Park"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into Luna Park's apparent violation of section 301 of the Communications
Act of 1934, as amended ("Act"), relating to the operation of an
unlicensed radio station on the frequency 99.9 MHz at 2814 West 8th Street
in Brooklyn, New York.
I. DEFINITIONS
1. 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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
e. "Effective Date" means the date on which the Commission releases the
Adopting Order.
f. "Investigation" means the investigation initiated on October 12, 2009,
and continued on October 13, 2009, regarding Luna Park's apparent
violation of section 301 of the Act relating to the operation of an
unlicensed radio station on the frequency 99.9 MHz at 2814 West 8th
Street in Brooklyn, New York.
g. "Luna Park" means Luna Park Housing Corporation and its
predecessors-in-interest and successors-in-interest.
h. "NAL" means the Notice of Apparent Liability for Forfeiture issued
against Luna Park on January 8, 2010.
i. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
j. "Parties" means Luna Park and the Bureau, and each a "Party."
k. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
II. BACKGROUND
2. Section 301 of the Act states that no person shall use or operate any
apparatus for the transmission of energy or communications or signals
by radio within the United States except under and in accordance with
the Act and with a license granted under the provisions of the Act.
Section 3(33) of the Act defines "communications by radio" as "the
transmission by radio of writing, signs, signals, pictures, and sounds
of all kinds, including all instrumentalities, facilities, apparatus,
and services (among other things the receipt, forwarding, and delivery
of communications) incidental to such transmission."
3. On January 8, 2010, the New York Office of the Bureau's Northeast
Region issued a NAL proposing that Luna Park be held liable for a
forfeiture of $10,000 under section 503(b)(1)(B) of the Act for
apparent violations arising from the operation of an unlicensed radio
station on the frequency 99.9 MHz at 2814 West 8th Street in Brooklyn,
New York.
III. TERMS OF AGREEMENT
4. 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.
5. Jurisdiction. Luna Park agrees that the Commission has jurisdiction
over it and the matters contained in this Consent Decree and has the
authority to enter into and adopt this Consent Decree.
6. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. 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.
7. 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 without imposing the forfeiture proposed in the NAL. In
consideration for the termination of said investigation, Luna Park
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 Luna Park concerning the
matters that were the subject of the investigation. The Bureau also
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 on its own
motion any proceeding, formal or informal, or take any action on its
own motion against Luna Park with respect to Luna Park's basic
qualifications, including its character qualifications, to be a
Commission licensee or hold Commission authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Luna Park agrees to create and implement within thirty (30)
calendar days (unless stated otherwise) after the Effective Date a
Compliance Plan related to future compliance with the Act, the
Commission's Rules, and the Commission's Orders, and to establish
operating procedures in compliance with the terms and conditions of
this Consent Decree. The Compliance Plan will consist of the following
components:
a. Compliance Officer. Luna Park will designate a Compliance Officer with
central responsibility for overseeing Luna Park's compliance with the
Compliance Plan and with the Act, the Commission's Rules, and the
Commission's Orders.
b. Compliance Letter. Luna Park will send a letter to all
tenant-shareholders of Luna Park warning them that operation of
unlicensed radio stations is illegal and will not be permitted within
any Luna Park building.
c. Compliance Notification. Effective immediately, Luna Park will not
permit unlicensed radio stations to operate from any location within
any portion of a building or on a rooftop that is under the express
control of Luna Park. In the event that Luna Park becomes aware of any
unlicensed radio stations operating from its buildings, Luna Park will
notify the FCC within twenty-four (24) hours of becoming aware of such
unlicensed operation and will provide all known information about the
operator. The foregoing shall not be deemed to impose any obligation
whatsoever on Luna Park to conduct any investigations or inspections
to discover unlicensed radio station operations.
d. Compliance Reports. Luna Park will file a Compliance Report with the
Commission twelve (12) months and twenty-four (24) months after the
Effective Date. The Compliance Report shall include a certification by
the Compliance Officer as an agent of and on behalf of Luna Park,
stating that the Compliance Officer has personal knowledge that Luna
Park (i) established operating procedures in compliance with the terms
and conditions of this Consent Decree and with section 301 of the Act,
together with an accompanying statement explaining the basis for the
Compliance Officer's certification; (ii) has been utilizing those
procedures during the term of the agreement; 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, the
Compliance Officer, as an agent of and on behalf of Luna Park, shall
provide the Commission with a detailed explanation of: (i) any
instances of non-compliance with this Consent Decree, the Act, or the
Rules, and (ii) the steps that Luna Park 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 Sharon Webber, Regional
Counsel, Northeast Region, Enforcement Bureau, Federal Communications
Commission, Philadelphia Office, One Oxford Valley Office Building,
Room 404, 2300 East Lincoln Highway, Langhorne, PA 19047. All
Compliance Reports shall also be submitted electronically to
NER-Response@fcc.gov.
9. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four (24) months after the Effective
Date.
10. Voluntary Contribution. Luna Park agrees that it will make a voluntary
contribution to the United States Treasury in the amount of four
hundred dollars ($400). The payment will be made within thirty (30)
calendars days after the Effective Date. The payment must be made by
credit card, 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[s] 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). Luna Park will also
send electronic notification on the date said payment is made to
NER-Response@fcc.gov.
11. Waivers. Luna Park 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. Luna Park 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 Luna Park nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Luna Park
shall waive any statutory right to a trial de novo. Luna Park 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.
12. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or
unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Adopting Order or
Consent Decree, but rather the entire Adopting Order or Consent Decree
shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations
of the Parties shall be construed and enforced accordingly. In the
event that this Consent Decree in its entirety is rendered invalid by
any court of competent jurisdiction, it shall become null and void and
may not be used in any manner in any legal proceeding.
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 Luna Park does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
14. Successors and Assigns. Luna Park agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
15. 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 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.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
17. 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.
18. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
19. 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.
________________________________
G. Michael Moffitt
Regional Director, Northeast Region
Enforcement Bureau
________________________________
Date
________________________________
Keith Murphy
President
Luna Park Housing Corporation
________________________________
Date
47 U.S.C. S: 301.
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 301.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 201032380004
(Enf. Bur., New York Office, January 8, 2010).
47 U.S.C. S: 301.
47 U.S.C. S: 153(33).
This notification will be made by electronic mail and by facsimile to the
following person: Sharon Webber, Regional Counsel, Northeast Region,
Enforcement Bureau, Federal Communications Commission, (215) 741-3016;
NER-Response@fcc.gov.
Federal Communications Commission DA 10-2389
2
Federal Communications Commission DA 10-2389
Federal Communications Commission DA 10-2389
Federal Communications Commission DA 10-2389