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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No. EB-09-IH-1134
)
Hanmi Broadcasting, Inc. NAL/Acct. No. 201132080021
)
Licensee of Station WPBC(AM), FRN No. 0014126098
Decatur, Georgia )
Facility ID No. 36144
)
)
ORDER
Adopted: March 25, 2011 Released: March 28, 2011
By the Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Hanmi Broadcasting, Inc.
("Hanmi" or "Licensee"), licensee of Station WPBC(AM), Decatur,
Georgia, ("Station"). The Consent Decree terminates an investigation
by the Bureau against Hanmi for possible violations of section 310(d)
of the Communications Act of 1934, as amended, and sections 73.3526,
73.3540, 73.3613, and 73.3615 of the Commission's Rules, regarding
allegations that it transferred control of the Station without
Commission authorization, failed to provide access to the Station's
public inspection file, failed to maintain required documents in the
Station's public inspection file, and failed to file ownership reports
and certain contracts with the Commission.
2. The Bureau and Hanmi 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.
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 Hanmi 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 against Hanmi
Broadcasting, Inc. before the Enforcement Bureau 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 Consent Decree
shall be sent by first-class, certified mail, return receipt
requested, to Alan Moskowitz Esq., 10845 Tuckahoe Way, North Potomac,
Maryland 20878.
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-09-IH-1134
)
Hanmi Broadcasting, Inc. NAL/Acct. No. 201132080021
)
Licensee of Station WPBC(AM), FRN No. 0014126098
)
Decatur, Georgia Facility ID No. 36144
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Hanmi Broadcasting, Inc. ("Hanmi"
or "Licensee"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Bureau's
Investigation into whether Hanmi violated section 310(d) of the
Communications Act of 1934, as amended, and sections 73.3526, 73.3540,
73.3613, and 73.3615 of the Commission's Rules, by transferring control of
Station WPBC(AM), Decatur, Georgia (the "Station"), without Commission
authorization, failing to make available during regular business hours the
Station's public inspection file, failing to maintain required documents
in the Station's public inspection file, and failing to file ownership
reports and certain contracts with the Commission.
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. "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. "Complaint" means a third-party complaint received by, or in the
possession of, the Commission or Bureau alleging violations of section
310(d) of the Communications Act of 1934, as amended, and sections
73.3526, 73.3540, 73.3613 and 73.3615 of the Commission's Rules.
e. "Compliance Plan" means the program described at paragraph 10 of this
Consent Decree.
f. "Compliance Officer" means the individual designated in paragraph
10.a. of this Consent Decree as the person responsible for
administration of the Compliance Plan.
g. "Effective Date" means the date on which the Commission releases the
Adopting Order.
h. "Investigation" means the Bureau's investigation of the Complaint
alleging that Hanmi violated various requirements of the Act and
Commission Rules by transferring control of the Station without
Commission authorization, failing to provide access to the Station's
public inspection file, failing to maintain required documents in the
Station's public inspection file, and failing to file ownership
reports and certain contracts with the Commission.
i. "Hanmi" means Hanmi Broadcasting Inc., and its
predecessors-in-interest and successors-in-interest.
j. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
k. "Parties" means Hanmi and the Bureau, and each is a "Party."
l. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
m. "Station" means Station WPBC(AM), Decatur, Georgia, Facility ID No.
36144.
II. BACKGROUND
3. Section 310(d) of the Act and section 73.3540 of the Rules prohibit a
licensee from transferring control of a Commission license without
prior authorization. Section 73.3526 of the Rules requires a Station
to make available during regular business hours its public inspection
file and to maintain certain documents within that file. Sections
73.3613 and 73.3615 of the Rules require the filing of certain
contracts and ownership reports with the Commission.
4. On June 22, 2009, the Commission received a Complaint against Hanmi
regarding the operations of Station WPBC(AM), Decatur, Georgia.
Specifically, the Complaint alleged that Hanmi engaged in possible
unauthorized transfers of control; violated public inspection file
requirements, including failure to grant public access and to maintain
required documents in the Station's public inspection file; and failed
to file ownership reports and certain contracts with the Commission.
Thereafter, on March 10, 2010, the Bureau issued a letter of inquiry
about these allegations. In response, the Licensee admitted that its
actions may have violated the Rules as alleged in the Complaint. The
Licensee explained, in arguing for consideration of mitigating
circumstances, that it was suffering from financial distress. The
Licensee submitted appropriate financial documentation supporting its
explanation of these circumstances. Additionally, the Licensee
represented it has a history of compliance with the Rules, but noted
that its present ability to comply with applicable regulations has
been greatly hindered by its principal's language difficulties and
financial constraints in hiring and retaining counsel. The Licensee
requested that the Bureau consider the foregoing circumstances.
5. The Bureau and Hanmi acknowledge that any proceedings that might
result from the Investigation and/or the Complaint would be
time-consuming and would require substantial expenditure of public and
private resources. In order to conserve such resources, and to ensure
continued compliance by the Licensee with the above described laws,
the Bureau and Hanmi are entering into this Consent Decree in
consideration of the mutual commitments made herein.
III. TERMS OF AGREEMENT
6. 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.
7. Jurisdiction. Hanmi 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.
8. 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.
9. 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,
Hanmi 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 Hanmi 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 Hanmi with respect to
Hanmi's basic qualifications, including its character qualifications,
to be a Commission licensee or hold Commission authorizations.
10. Compliance Plan. For purposes of settling the matters set forth
herein, Hanmi agrees to maintain a Compliance Plan related to future
compliance with the above described sections of the Act and the Rules,
as well as Commission Orders. The Compliance Plan shall include, at a
minimum, the following components:
a. Compliance Officer. Within thirty (30) days of the Effective Date,
Hanmi shall designate an individual to serve as its Compliance Officer,
who shall be responsible for administering the Compliance Plan. In
discharging such duties, the Compliance Officer, if not an FCC regulatory
counsel, shall consult with and be assisted by outside FCC regulatory
counsel.
b. Training. Within thirty (30) days of the Effective Date, all Hanmi
employees, officers, and directors shall be trained on general FCC
requirements for license ownership, which shall include specific training
on the requirements provided in section 310(d) of the Act and in sections
73.3526, 73.3540, 73.3613, and 73.3615 of the Rules. Such training shall
be provided to all new employees, officers, and directors within thirty
(30) days of the start of their employment or position. With the
assistance of outside regulatory counsel, Hanmi shall monitor and review
any future changes to these requirements, and ensure that all employees,
officers, and directors are provided current information, including any
materials, and training.
11. Compliance Reports. Hanmi shall file Compliance Reports with the
Commission ninety (90) days after the Effective Date, twelve (12)
months after the Effective Date, twenty-four (24) months after the
Effective Date, and upon expiration of this Consent Decree, three (3)
years after the Effective Date. Each Compliance Report shall include a
certification by the Compliance Officer, as an agent of and on behalf
of the Licensee, stating that the Compliance Officer has personal
knowledge that the Licensee: (i) has established operating procedures
intended to ensure compliance with the terms and conditions of this
Consent Decree and with section 310(d) of the Act and sections
73.3526, 73.3540, 73.3613, and 73.3615 of the Commission's Rules,
together with an accompanying statement explaining the basis for the
Compliance Officer's 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, the Compliance Officer, as an agent of and on
behalf of the Licensee, shall provide the Commission with a detailed
explanation of: (i) any instances of non-compliance with this Consent
Decree or with section 310(d) of the Act and sections 73.3526,
73.3540, 73.3613, and 73.3615 of the Rules; and (ii) the steps that
the Licensee 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, Room 4-C330,
445 12th Street, S.W., Washington, D.C. 20554, with a copy submitted
electronically to Anjali Singh at Anjali.Singh@fcc.gov and to Gary
Oshinsky at Gary.Oshinsky@fcc.gov.
12. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire three (3) years from the Effective Date of
this agreement.
13. Voluntary Contribution. Hanmi agrees that it will make a voluntary
contribution to the United States Treasury in the amount of twenty-two
thousand ($22,000) in five (5) installments of $4,400. The first
payment will be made within thirty (30) days after the Effective Date
of the Adopting Order, with subsequent payments made at four month
intervals thereafter, on: August 15, 2011; December 15, 2011; April
15, 2012; and August 15, 2012. Each 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. 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 NAL/Account number in block number 23A
(call sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). Hanmi will also send electronic notification on
the date said payment is made to Terry.Cavanaugh@fcc.gov,
Anjali.Singh@fcc.gov, and Gary.Oshinsky@fcc.gov.
14. Waivers. Hanmi 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. Hanmi 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 Hanmi nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Hanmi shall
waive any statutory right to a trial de novo. Hanmi 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.
15. Admission of Liability. Hanmi admits, solely for the purpose of this
Consent Decree and for Commission civil enforcement purposes and in
express reliance on the provisions of paragraph 9 herein, that its
actions relative to violations referred to in this Consent Decree,
were violative of Commission regulations and requirements in force at
the time at issue. Notwithstanding any other provision of this Consent
Decree, it is expressly agreed and understood that if this Consent
Decree, or paragraph 9 hereof, or both, are breached by the Bureau, or
are invalidated or modified to Hanmi's prejudice by the Commission,
Bureau, or any court, then and in that event the provisions of the
immediately-preceding sentence shall be of no force or effect
whatever, and Hanmi shall not, by virtue of that sentence or any other
provision of this Consent Decree, be deemed to have made any admission
concerning any material violation.
16. Invalidity. 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
17. 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 Hanmi does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
18. Successors and Assigns. Hanmi agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
19. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties.
20. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
21. 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.
22. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
23. 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
________________________________
Chang S. Kim
President
Hanmi Broadcasting, Inc.
________________________________
Date
See 47 U.S.C. S: 310(d).
See 47 C.F.R. S:S: 73.3526 (local public inspection file of commercial
stations), 73.3540 (application for voluntary assignment or transfer of
control), 73.3613 (filing of contracts), 73.3615 (ownership reports).
See 47 U.S.C. S: 154(i), 503(b).
See 47 C.F.R. S:S: 0.111, 0.311.
See 47 U.S.C. S: 310(d) (requiring Commission authorization to transfer or
assign a station license).
See 47 C.F.R. S:S: 73.3526 (local public inspection file of commercial
stations), 73.3540 (application for voluntary assignment or transfer of
control), 73.3613 (filing of contracts), 73.3615 (ownership reports).
See 47 U.S.C. S: 310(d).
See 47 C.F.R. S:S: 73.3526, 73.3540, 73.3613, 73.3615.
See Letter from Complainant to the Federal Communications Commission,
dated June 22, 2010.
See 47 U.S.C. S: 310(d); 47 C.F.R. S:S: 73.3526, 73.3540, 73.3613,
73.3615.
See 47 U.S.C. S: 310(d); 47 C.F.R. S: 73.3540.
See 47 C.F.R. S: 73.3526.
See 47 C.F.R. S:S: 73.3613, 73.3615.
See supra note 5.
See Letter from Anjali K. Singh, Acting Assistant Division Chief, to Hanmi
Broadcasting Inc., dated March 11, 2010.
See Response from Hanmi Broadcasting, Inc., to Gary Oshinsky, Attorney
Advisor, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated April 2, 2010.
The Licensee's counsel represents that the Licensee's President, Chang Soo
Kim, is a native Korean speaker, with limited English-speaking capability.
See supra note 6 & paragraph 3.
See 47 U.S.C. S: 310(d).
See 47 C.F.R. S:S: 73.3526, 73.3540, 73.3613, 73.3615.
See 47 C.F.R. S: 1.16.
See 47 U.S.C. S: 310(d).
See 47 C.F.R. S:S: 73.3526, 73.3540, 73.3613, 73.3615.
Federal Communications Commission DA 11-242
2
Federal Communications Commission DA 11-242