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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File Nos. EB-06-IH-1404 and
In the Matter of
) EB-07-IH-4701
AMFM Radio Licenses, L.L.C.
) NAL/Acct. No. 201132080008
Licensee of Station WHTZ(FM),
) FRN No. 0001656586
Newark, New Jersey
) Facility ID No. 59953
)
ORDER
Adopted: June 2, 2011 Released: June 3, 2011
By the Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and AMFM Radio Licenses,
L.L.C. ("AMFM Radio"). The Consent Decree terminates an investigation
by the Bureau against AMFM Radio for possible violations of section
73.1206 of the Commission Rules, by recording for broadcast a
telephone conversation without the authorization of one of the parties
to the call.
2. The Bureau and AMFM Radio 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 AMFM Radio 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 all third-party complaints against AMFM
Radio Licenses, L.L.C., before the Enforcement Bureau related to the
above-captioned-investigation as of the date of this Consent Decree
ARE 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 the Licensee at 2625 S. Memorial Drive, Suite A, Tulsa, Oklahoma
74129-2623, and to its counsel, John E. Fiorini III, Esq., Wiley Rein
L.L.P., 1776 K Street NW, Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File Nos. EB-06-IH-1404 and
In the Matter of
) EB-07-IH-4701
AMFM Radio Licenses, L.L.C.
) NAL/Acct. No. 201132080008
Licensee of Station WHTZ(FM),
) FRN No. 0001656586
Newark, New Jersey
) Facility ID No. 59953
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and AMFM Radio Licenses, L.L.C.
("AMFM Radio"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Enforcement
Bureau's investigation into whether AMFM Radio violated section 73.1206 of
the Commission Rules, by recording for broadcast a telephone conversation
without the authorization of one of the parties to the call.
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. "AMFM Radio" means AMFM Radio Licenses, L.L.C., licensee of Station
WHTZ(FM), Newark, New Jersey, and its predecessors-in-interest and
successors-in-interest.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission
and all of its bureaus and offices.
e. "Complaint" means any third-party complaint which may have been
received by, or is in the possession of, the Commission or the
Bureau, as of the Effective Date, alleging violation of section
73.1206 of the Commission's Rules with respect to any material aired
on the Station, including, without limitation, any complaint or
matter referenced in the Bureau's September 13, 2007, and December
12, 2007 Letters of Inquiry or AMFM Radio's Responses thereto.
f. "Compliance Plan" means the program described in this Consent Decree
at Paragraph 9.
g. "Effective Date" means the date on which the Commission releases the
Adopting Order.
h. "Investigations" means the investigations commenced by the Bureau's
September 13, 2007 and December 12, 2007 Letters of Inquiry, in the
above-captioned cases regarding whether AMFM Radio violated section
73.1206 of the Commission's Rules by recording for broadcast over
Station WHTZ(FM), Newark, New Jersey, a telephone conversation
without the authorization of one of the parties to the call.
i. "Investigations and Hearings Division" means the Investigations and
Hearings Division of the Enforcement Bureau, Federal Communications
Commission, acting on behalf of the Enforcement Bureau.
j. "Order" or "Adopting Order" mean an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
k. "Parties" means AMFM Radio and the Bureau.
l. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
m. "Station" or "WHTZ" means Station WHTZ(FM), Newark, New Jersey, of
which AMFM Radio is the licensee.
II. BACKGROUND
1. Pursuant to section 73.1206 of the Commission's Rules, a licensee
shall, before recording a telephone conversation for broadcast or
broadcasting such a conversation, inform any party to the call of
the licensee's intention to broadcast the conversation, except
where such party may be presumed to be aware from the
circumstances of the conversation, that it is being or likely
will be broadcast.
2. On March 27, 2006, and February 21, 2007, the Commission received
similar complaints regarding broadcasts of a recorded telephone
conversation without notification to one of the parties to the
conversation. Thereafter, on September 13, 2007, and on December
12, 2007, the Bureau issued letters of inquiry concerning these
broadcasts. In its Responses, the Licensee admits that it
recorded a telephone conversation for broadcast over the Station
without disclosing that the conversation was being recorded for
broadcast prior to making the recording, as required by section
73.1206 of the Commission's Rules.
III. TERMS OF AGREEMENT
3. 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.
4. Jurisdiction. AMFM Radio 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.
5. 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.
6. 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
Investigations. In consideration for the termination of said
Investigations, AMFM Radio 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: (i) the
facts developed in its Investigations through the Effective Date of
the Consent Decree; (ii) any Complaint; or (iii) 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 AMFM Radio or any other entity under common control
concerning possible violations of section 73.1206. The Bureau also
agrees that it will not use: (i) the facts developed in its
Investigations through the Effective Date of this Consent Decree;
(ii) any Complaint; or (iii) 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 AMFM Radio or any other
entity under common control with respect to any such entity's basic
qualifications, including its character qualifications, to be a
Commission licensee or hold Commission authorizations.
7. Compliance Plan. For purposes of settling the matters set forth
herein, AMFM Radio agrees to implement within 90 days of the
Effective Date, a Compliance Plan related to future compliance with
section 73.1206 of the Commission's Rules for a period of three (3)
years. The Plan will include, at a minimum, the following components:
a. Compliance Procedures. WHTZ will establish an FCC compliance training
program for any employee whose duties implicate section 73.1206 concerning
the Station's policies and procedures for recording and broadcasting
telephone conversations over the Station. Training sessions will be
conducted at least annually for such employees to ensure compliance with
those policies and procedures and, for new employees who are engaged in
such activities, within the first sixty (60) days of employment. WHTZ
shall develop and update as necessary appropriate FCC Compliance
Procedures concerning section 73.1206. Relevant Station personnel shall be
trained on such FCC Compliance Procedures and shall be required to follow
them.
b. Compliance Officer. AMFM Radio shall designate an FCC Compliance
Officer who will administer the Compliance Plan, supervise the Station's
compliance with section 73.1206 and the Consent Decree, and serve as the
Station's point of contact for all Commission-related compliance matters
respecting such section. The Compliance Officer will be assigned
responsibility to review the FCC Compliance Plan annually to ensure that
it is maintained in a proper manner and continues to address the
objectives set forth therein.
8. Compliance Reports. The Station will 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 Station, stating that the Compliance Officer has
personal knowledge that the Station: (i) has established operating
procedures intended to ensure compliance with the terms and
conditions of this Consent Decree and with section 73.1206 of the
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 Station, shall provide the Commission with a
detailed explanation of: (i) any instances of non-compliance with
this Consent Decree and section 73.1206 of the Rules; and (ii) the
steps that the Station 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 Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 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.
9. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire three (3) years from the Effective Date.
10. Voluntary Contribution. AMFM Radio agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
twenty thousand dollars ($20,000). 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). AMFM Radio
will also send an electronic notification on the date each said
payment is made to Terry.Cavanaugh@fcc.gov, Anjali.Singh@fcc.gov, and
Gary.Oshinsky@fcc.gov.
11. Waivers. AMFM Radio 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. AMFM Radio 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 AMFM Radio nor the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and AMFM Radio shall waive any statutory right to a
trial de novo. AMFM Radio 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 AMFM Radio does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
14. Successors and Assigns. AMFM Radio 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.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
________________________________
Christopher M. Cain.
Associate General Counsel-Radio,
AMFM Radio Licenses, L.L.C.
________________________________
Date
See 47 C.F.R. S: 73.1206.
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
See 47 C.F.R. S: 73.1206.
See Letter from Jennifer Lewis Hershman, Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated September 13, 2007; Letter from
Jennifer Lewis, Assistant Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission,
dated December 12, 2007.
47 C.F.R. S: 73.1206.
See supra note 2.
See Letter to Gary Oshinsky, Attorney Advisor, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, at 2, dated September 27, 2007; Letter to Judy Lancaster,
Attorney Advisor, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, at 2-3, dated January 10,
2008.
These responses also state that prior to broadcasting the
conversation, AMFM Radio obtained the consent of the party at issue.
See supra note 5.
See 47 C.F.R. S: 73.1206.
See 47 C.F.R. S: 1.16.
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