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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Emeraldbrooke II, LLC Owner of Antenna Structure Number
1045635 Novi, Michigan ) ) ) ) ) ) File No: EB-FIELDNER-12-00005644
NAL/Acct. No.: 201332360002 FRN: 0016916769
ORDER
Adopted: December 11, 2013 Released: December 11, 2013
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau of the Federal Communications Commission
(Bureau) and Emeraldbrooke II, LLC (Emeraldbrooke). The Consent Decree
terminates the investigation and the Notice of Apparent Liability for
Forfeiture and Order issued by the Bureau for possible violations by
Emeraldbrooke of Sections 17.4(g), 17.50 and 17.57 of the Commission's
rules (Rules)^ concerning Emeraldbrooke's antenna structure in Novi,
Michigan.
2. The Bureau and Emeraldbrooke have negotiated the terms of a Consent
Decree that resolves this matter. A copy of the Consent Decree is attached
hereto and incorporated herein 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. Accordingly, IT IS ORDERED, pursuant to Section 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 the Order IS
ADOPTED.
5. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
6. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by both first class mail and certified mail, return receipt
requested to Emeraldbrooke at 38701 Seven Mile Road, Suite 245, Livonia,
Michigan 48152, and to its counsel and agent, Michael R. Dorfman, Nykanen
& Dorfman, at 33493 W. 14 Mile Road, Farmington Hills, Michigan 48331.
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 Emeraldbrooke II, LLC Owner of Antenna Structure Number
1045635 Novi, Michigan ) ) ) ) ) ) File No: EB-FIELDNER-12-00005644
NAL/Acct. No.: 201332360002 FRN: 0016916769
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission
(Bureau) and Emeraldbrooke II, LLC (Emeraldbrooke), by their
authorized representatives, hereby enter into this Consent Decree for
the purpose of terminating the Bureau's investigation into possible
violations of Sections 17.4(g), 17.50 and 17.57 of the Commission's
rules^ pertaining to Emeraldbrooke's failure to: (1) display the
Antenna Structure Registration Number near the base of Emeraldbrooke's
antenna structure in a conspicuous place so that it was readily
visible; (2) repaint its antenna structure as often as necessary to
maintain good visibility; and (3) immediately notify the Commission
upon a change in ownership of its antenna structure.
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. "Additional Penalty Payment" means payment of one thousand dollars
($1,000) to the United States Treasury for each day after the
Dismantlement Date that the Antenna Structure remains standing.
c. "Adopting Order" means an order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
d. "Antenna Structure" means antenna structure number 1045635 located in
Novi, Michigan, and owned by Emeraldbrooke.
e. "Antenna Structure Rules" means Part 17 of the Rules and other
Communications Laws governing antenna structures. These Rules
encompass, among other things, the registration, painting, and
monitoring of antenna structures.
f. "ASR" means antenna structure registration.
g. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
h. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
i. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Emeraldbrooke is subject by virtue of its ownership of an
antenna structure subject to Part 17 of the Rules.
j. "Dismantle" or Dismantlement" means to remove the Antenna Structure in
its entirety.
k. "Dismantlement Date" means the date by which Emeraldbrooke must
dismantle its Antenna Structure, i.e., ninety (90) calendar days after
the Effective Date of the Adopting Order, as defined herein.
l. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
m. "Emeraldbrooke" means Emeraldbrooke II, LLC and its
predecessors-in-interest and successors-in-interest.
n. "Initial Penalty Payment" means payment of twenty-five thousand
dollars ($25,000) to the United States Treasury in the event
Emeraldbrooke fails to dismantle the Antenna Structure by the
Dismantlement Date.
o. "Investigations" means collectively, the investigations commenced by
the Bureau on October 5, 2011, regarding Emeraldbrooke's compliance
with Part 17 of the Rules.
p. "Parties" means Emeraldbrooke and the Bureau, each of which is a
"Party."
q. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
3. Section 17.50 of the Rules states that "[a]ntenna structures requiring
painting under this part shall be cleaned or repainted as often as
necessary to maintain good visibility."^ Section 17.4(g) of the Rules
requires that the ASR number be displayed in a conspicuous place so
that it is readily visible near the base of the antenna structure.^
Section 17.57 of the Rules states that the "owner [of a registered
antenna structure] must also immediately notify the Commission, using
FCC Form 854, upon any change in structure height or change in
ownership information."^
4. On October 5, 2011, an agent from the Bureau's Detroit Office
inspected the Antenna Structure and observed that the ASR number was
not posted at the base of the Antenna Structure and that the paint on
the Antenna Structure was so severely faded that it no longer provided
good visibility. The agent also found that, although Emeraldbrooke has
owned the Antenna Structure since 2002, the ASR database did not list
Emeraldbrooke as the owner of the Antenna Structure.
5. On November 4, 2011, the Detroit Office issued a Warning Letter to
Emeraldbrooke for failure to: (1) post the ASR number near the base of
its Antenna Structure; (2) change the ownership information for the
Antenna Structure; and (3) clean and repaint its Antenna Structure as
often as necessary to maintain good visibility.^ In response to the
Warning Letter, Emeraldbrooke stated that it believed it had updated
the ownership information in the ASR database and that it had
contacted a vendor to post the ASR number and to obtain an estimate
for re-painting the Antenna Structure.^
6. Notwithstanding the Warning Letter and Emeraldbrooke's statements in
its Warning Letter Response, on December 30, 2011, and again on May 8,
2012, and March 14, 2013, agents from the Detroit Office found that
the ASR number was not posted at the base of the Antenna Structure and
that the paint on the Antenna Structure was still severely faded. In
addition, on each of those dates, an agent checked the ASR database
and the prior owner was still listed as the owner of the Antenna
Structure. On May 3, 2013, the Detroit Office issued a Notice of
Apparent Liability for Forfeiture and Order, finding that
Emeraldbrooke apparently violated Sections 17.4(g), 17.50, and 17.57
of the Rules and proposing a monetary forfeiture in the amount of
$25,000.^
7. In response to the NAL, Emeraldbrooke reported that it owns no other
antenna structures and that it intends to dismantle the Antenna
Structure.
III. TERMS OF AGREEMENT
8. 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.
9. Jurisdiction. Emeraldbrooke agrees that the Bureau has jurisdiction
over it and the matters contained in this Consent Decree and that the
Bureau has the authority to enter into and adopt this Consent Decree.
10. Effective Date; Violations. The Parties agree that this Consent
Decree shall become effective on the Effective Date as defined herein.
As of the Effective Date, the Adopting Order and this Consent Decree
shall have the same force and effect as any other order of the
Commission. Any violation of the Adopting Order or of the terms of
this Consent Decree shall constitute a separate violation of a
Commission order, entitling the Commission to exercise any rights and
remedies attendant to the enforcement of a Commission order.
11. Termination of Investigations. 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 the
Investigations. In consideration for the termination of the
Investigations, Emeraldbrooke 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 the Investigations 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 Emeraldbrooke concerning the matters that were the
subject of the Investigations.
12. Dismantlement. For purposes of settling the matters set forth herein,
Emeraldbrooke agrees that it will dismantle the Antenna Structure
within ninety (90) calendar days after the Effective Date
(Dismantlement Date). Emeraldbrooke further agrees that it will notify
the Commission of the Dismantlement as required under the Antenna
Structure Rules. Notification of the Dismantlement also shall be sent
to Sharon Webber at sharon.webber@fcc.gov.
13. Antenna Structure Purchase Notification. By executing this Consent
Decree, Emeraldbrooke represents and warrants that it does not own any
other antenna structures subject to the Antenna Structure Rules.
Emeraldbrooke further agrees not to purchase an antenna structure that
is subject to the Antenna Structure Rules without first providing
written notification to the Bureau at least one (1) month prior to
such purchase so as to permit the Bureau and Emeraldbrooke to
negotiate a Compliance Plan designed to ensure Emeraldbrooke's future
compliance with the Antenna Structure Rules. In the event
Emeraldbrooke notifies the Bureau of its intention to purchase an
antenna structure that is subject to the Antenna Structure Rules,
Emeraldbrooke agrees to develop and implement a Compliance Plan,
mutually agreed upon by the Bureau and Emeraldbrooke, which is
designed to ensure Emeraldbrooke's future compliance with the Antenna
Structure Rules. The Compliance Plan shall be memorialized in an
amendment to this Consent Decree and shall be in effect for a period
of not more than twenty-four (24) months. Emeraldbrooke further agrees
that it shall not purchase an antenna structure that is subject to the
Antenna Structure Rules unless and until the Compliance Plan has been
implemented. Any such written notice shall be submitted to Sharon
Webber, Regional Counsel, Northeast Region, Enforcement Bureau,
Federal Communications Commission, One Oxford Valley Office Building,
Room 404, 2300 East Lincoln Highway, Langhorne, Pennsylvania 19047,
with a copy submitted electronically at sharon.webber@fcc.gov.
14. Termination Date. Unless stated otherwise, the requirements of
paragraphs 11 and 12 of this Consent Decree shall expire twenty-four
(24) months after the Effective Date.
15. Complaints; Subsequent Investigations. Nothing in this Consent Decree
shall prevent the Commission or its delegated authority from
adjudicating complaints against Emeraldbrooke for alleged violations
of the Act, or for any other type of alleged misconduct, regardless of
when such misconduct took place. The Commission's adjudication of any
such complaints will be based solely on the record developed in that
proceeding. Except as expressly provided in this Consent Decree, this
Consent Decree shall not prevent the Commission from investigating new
evidence of noncompliance by Emeraldbrooke with the Communications
Laws.
16. Voluntary Contribution. Emeraldbrooke agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
fifteen thousand dollars ($15,000) (Voluntary Contribution) within
thirty (30) calendar days after the Effective Date. Emeraldbrooke
shall submit the Voluntary Contribution in United States Dollars
without further demand or notice by the dates specified above.
Emeraldbrooke acknowledges and agrees that upon execution of this
Consent Decree the Voluntary Contribution shall become a "Claim" or
"Debt" as defined in 31 U.S.C. S 3701(b)(1). Upon an Event of Default
(as defined below), all procedures for collection as permitted by law
may, at the Commission's discretion, be initiated. Payment to the
United States Treasury of the Voluntary Contribution shall be made as
set forth infra at paragraph 17.
17. Penalties. If Emeraldbrooke fails to dismantle the Antenna Structure
by the Dismantlement Date, Emeraldbrooke agrees that it will make an
Initial Penalty Payment of twenty-five thousand dollars ($25,000) to
the United States Treasury. Emeraldbrooke also agrees that for each
day after the Dismantlement Date that Emeraldbrooke fails to dismantle
the Antenna Structure, Emeraldbrooke will make an Additional Penalty
Payment of one thousand dollars ($1,000) per day to the United States
Treasury until such date that the Antenna Structure has been
dismantled. Emeraldbrooke shall submit the Initial Penalty Payment and
any Additional Penalty Payment in United States Dollars without
further demand or notice by the dates specified above. As each penalty
payment accrues, Emeraldbrooke acknowledges and agrees that any such
amount shall become a "Claim" or "Debt" as defined in 31 U.S.C. S
3701(b)(1). Upon an Event of Default (as defined below), all
procedures for collection as permitted by law may, at the Commission's
discretion, be initiated. Payment to the United States Treasury of any
Initial Penalty Payment or Additional Penalty Payment shall be made as
set forth infra at paragraph 17 and shall be due within thirty (30)
days of the date that such additional payment accrues.
18. Payment Procedure. Any payment must be made by check or similar
instrument, wire transfer, or credit card, and must include the
NAL/Account Number and FRN referenced above. Emeraldbrooke shall also
send electronic notification of payment on the date such payment is
made to Sharon Webber at sharon.webber@fcc.gov. Regardless of the form
of payment, a completed 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). Below are additional
instructions you should follow based on the form of payment you
select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
If you have questions regarding payment procedures, please contact the
Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
e-mail, ARINQUIRIES@fcc.gov.
18. Event of Default. Emeraldbrooke agrees that an Event of Default shall
occur upon the failure by Emeraldbrooke: (1) to pay the full amount of
the Voluntary Contribution before the due date specified in this
Consent Decree and/or (2) to pay the Initial Penalty Payment and/or
any Additional Penalty Payment owed for failure to dismantle the
Antenna Structure by the Dismantlement Date as specified in paragraph
11 supra.
19. Interest, Charges for Collection, and Acceleration of Maturity Date.
After an Event of Default has occurred under this Consent Decree, the
then unpaid amount of the Voluntary Contribution, Initial Penalty
Payment and/or Additional Penalty Payment shall accrue interest,
computed using the rate of the U.S. Prime Rate in effect on the date
of the Event of Default plus 4.75 percent, from the date of the Event
of Default until payment in full. Upon an Event of Default, the then
unpaid amount of the Voluntary Contribution, Initial Penalty Payment
and/or Additional Penalty Payment, together with interest, as
aforesaid, any penalties permitted and/or required by the law,
including but not limited to interest and penalties permitted under 31
U.S.C. S 3717 and administrative charge(s), plus the costs of
collection, litigation, and attorneys' fees, shall become immediately
due and payable, without notice, presentment, demand, protest, or
notice of protest of any kind, all of which are waived by
Emeraldbrooke.
20. Waivers. Emeraldbrooke 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 Adopting Order, provided the Bureau issues an Adopting
Order as defined herein. Emeraldbrooke 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 Emeraldbrooke nor the Commission shall contest
the validity of the Consent Decree or of the Adopting Order, and
Emeraldbrooke shall waive any statutory right to a trial de novo.
Emeraldbrooke hereby agrees to waive any claims it may have under the
Equal Access to Justice Act^ relating to the matters addressed in this
Consent Decree.
21. 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.
22. 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 Emeraldbrooke does not expressly
consent) that provision will be superseded by such Rule or Commission
order.
23. Successors and Assigns. Emeraldbrooke agrees that the provisions of
this Consent Decree shall be binding on its successors, assigns, and
transferees.
24. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Investigations. 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 Communications Laws.
25. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
26. 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.
27. Authorized Representative. The individual signing this Consent Decree
on behalf of Emeraldbrooke represents and warrants that he is
authorized by Emeraldbrooke to execute this Consent Decree and to bind
Emeraldbrooke and all of its subsidiaries to the obligations set forth
herein. The FCC signatory represents that he is signing this Consent
Decree in his official capacity and that he is authorized to execute
this Consent Decree.
28. 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
________________________________
Michael R. Dorfman
Agent for Emeraldbrooke
________________________________
Date
^ 47 C.F.R. SS 17.4(g), 17.50, 17.57.
^ 47 U.S.C. SS 154(i), 503(b).
^ 47 U.S.C. SS 0.111, 0.311.
^ 47 C.F.R. SS 17.4(g), 17.50, 17.57.
^ 47 C.F.R. S 17.50.
^ 47 C.F.R. S 17.4(g).
^ 47 C.F.R. S 17.57.
^ Emeraldbrooke II, LLC, Warning Letter (Nov. 4, 2011) (on file in
EB-11-DT-0256) (Warning Letter).
^ Letter from Edmond A. Swad, Member/Manager, Emeraldbrooke II, LLC, to
James A. Bridgewater, District Director, Detroit Office, Enforcement
Bureau (Nov. 11, 2011) (on file in EB-11-DT-0256) (Warning Letter
Response).
^ Emeraldbrooke II, LLC, Notice of Apparent Liability for Forfeiture and
Order, 28 FCC Rcd 6227 (Enf. Bur. 2013) (NAL).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ Equal Access to Justice Act, Pub L. No. 96-481, 94 Stat. 2325 (1980)
(codified at 5 U.S.C. S 504); see also 47 C.F.R. SS 1.1501-1.1530.
Federal Communications Commission DA 13-2350
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Federal Communications Commission DA 13-2350
7