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Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of CHEROKEE BROADCASTING COMPANY Applicant in Auction No. 91
) ) ) ) ) ) File No.: EB-12-IH-0109 Acct. No.: 201432080022 FRN:
0005056882
ORDER
Adopted: February 27, 2014 Released: February 28, 2014
By the Chief, Enforcement Bureau:
1. In this Order, we adopt a Consent Decree entered into between the
Enforcement Bureau (Bureau) of the Federal Communications Commission
(Commission) and Cherokee Broadcasting Company (CBC). The Consent
Decree resolves and terminates the Bureau's investigation into
possible violations by CBC of Section 1.2105(c) of the Commission's
rules (Rules)^ relating to prohibited contacts and communications in
Commission auctions.
2. A copy of the Consent Decree negotiated by the Bureau and CBC is
attached hereto and incorporated herein by reference.
3. After evaluating the facts before us and reviewing the terms of the
Consent Decree, 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 CBC 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 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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to: Harry Martin, Esq. and Raymond Quianzon, Esq., counsel
for CBC, Fletcher, Heald & Hildreth, P.L.C., 1300 N. 17^th Street,
11^th Floor, Arlington, Virginia 22209.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of CHEROKEE BROADCASTING COMPANY Applicant in Auction No. 91
) ) ) ) ) ) File No.: EB-12-IH-0109 Acct. No.: 201432080022 FRN:
0005056882
CONSENT DECREE
1. The Enforcement Bureau (Bureau) of the Federal Communications
Commission (Commission or FCC) and Cherokee Broadcasting Company
(CBC), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's
investigation into possible violations by CBC of Section 1.2105(c) of
the Commission's rules (Rules)^ relating to prohibited contacts and
communications in Commission auctions.
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 Bureau adopting the terms
of this Consent Decree without change, addition, deletion, or
modification.
c. "CBC" means Cherokee Broadcasting Company, applicant in Auction
91, and its predecessors-in-interest and successors-in-interest.
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. "Communications Laws" means collectively, the Act, the Rules, and
the published and promulgated orders and decisions of the
Commission to which CBC is subject by virtue of its business
activities.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau's
Investigations and Hearings Division in File No. EB-12-IH-0109
regarding CBC's compliance with Section 1.2105(c) of the Rules,
arising from CBC's conduct in Auction 91.
i. "Parties" means the Bureau and CBC, each of which is a "Party."
j. "Radio WEBS" means Radio WEBS, Inc., an applicant in Auction 91.
k. "Rebecca Sovine" means Rebecca Sovine and Rebecca Smith (her
married name), an applicant in Auction 91.
l. "Rules" means the Commission's regulations found in Title 47 of
the Code of Federal Regulations.
II. BACKGROUND
3. Section 1.2105(c)(1) of the Rules prohibits auction applicants for
licenses in any of the same geographic license areas from "cooperating
or collaborating with respect to, discussing with each other, or
disclosing to each other in any manner the substance of their own, or
each other's, or any other competing applicants' bids or bidding
strategies, or discussing or negotiating settlement agreements" ^
beginning immediately after the short-form application filing deadline
until after the down payment deadline "unless such applicants are
members of a bidding consortium or other joint bidding arrangement
identified on the bidder's short-form application . . . ."^ In
addition, Section 1.2105(c)(6) of the Rules requires that "[a]ny
applicant that makes or receives a communication of bids or bidding
strategies prohibited under [Section 1.2105(c)(1) of the Rules] shall
report such communication in writing to the Commission immediately,
and in no case later than five business days after the communication
occurs."^
4. On September 21, 2010, the Commission announced its intention to
auction 147 FM band construction permits in various markets across the
country in Auction 91.^ Consistent with standard practice, the
Commission issued public notices prior to the commencement of Auction
91 warning applicants of the need to strictly comply with all
applicable Commission rules, including Section 1.2105(c).^ CBC, Radio
WEBS, and Rebecca Sovine each filed a short-form application to
participate in Auction 91.^ CBC and Radio WEBS represent that they are
entities based in Calhoun, Georgia. Rebecca Sovine is an individual
residing in Eatonton, Georgia. Each of the applicants sought
eligibility to bid on the construction permit for a new FM broadcast
station in Calhoun, Georgia (MM-FM787-A). None of these applicants
identified the existence of any joint bidding consortium or agreement
between or among them. As such, Section 1.2105(c)(1) of the Rules
strictly prohibited them from communicating with each other about bids
or bidding strategies pertaining to Auction 91 during the period
extending from 6:00 p.m. ET on February 10, 2011 (the short-form
application filing deadline), until 6:00 p.m. ET on June 7, 2011 (the
down payment deadline). Bidding in Auction 91 began on April 27, 2011,
and concluded on May 11, 2011.
5. While bidding remained underway, CBC, through its counsel and
authorized bidder, Dan J. Alpert, prepared and submitted to the
Commission a report entitled "Notice of Prohibited Communication and
Request for Investigation," dated May 2, 2011.^ The May 2 Report
indicated that it had been filed with the Office of the Secretary.
Additionally, the May 2 Report included a "Certificate of Service"
indicating that CBC had sent copies of the report to counsel for Radio
WEBS, Inc., and Rebecca Sovine. In its May 2 Report, CBC reported that
it had received an unsolicited communication in the form of an e-mail,
dated April 30, 2011, from an anonymous individual identifying himself
only as "Piforradio."^ The e-mail, a copy of which CBC attached to its
May 2 Report, alleged that Rebecca Sovine was participating in Auction
91 on behalf of an undisclosed real party - her husband, James
(Scott) Smith, a manager of Cox Radio properties in Athens, Georgia.^
CBC did not simply forward the Piforradio e-mail to the Commission and
allow the Commission to draw its own inferences from the document.
Rather, the May 2 Report consisted of a four-page pleading in which
CBC analyzed, explained, and expanded upon the significance of the
allegations contained in the mysterious e-mail based upon its own
independent inquiry, ultimately urging the Commission to temporarily
stop all bidding on the Calhoun, Georgia construction permit.^
6. After being alerted by the staff of the Wireless Telecommunications
Bureau that the May 2 Report itself might have constituted a
prohibited communication because it was directed to the Office of the
Secretary with copies to two other auction applicants, CBC submitted a
second report on May 3, 2011.^ The May 3 Report was identical in
substance to the May 2 Report. However, unlike the initial report, CBC
directed its May 3 Report only to the Chief, Auctions and Spectrum
Access Division, Wireless Telecommunications Bureau.
7. Rebecca Sovine ceased bidding in Auction 91 after the first round of
bidding on May 2, 2011. Thereafter, the Wireless Telecommunications
Bureau referred this matter to the Bureau for investigation. The
Bureau commenced its Investigation of CBC's compliance with Section
1.2105(c) of the Rules by sending letters of inquiry to CBC, Radio
WEBS, and Rebecca Sovine.^ The Investigation confirmed, among other
things, that Radio WEBS and Rebecca Sovine received copies of CBC's
May 2 Report from CBC. The Bureau and CBC thereafter entered into
discussions aimed at resolving the Investigation. CBC provided
financial information to the Bureau documenting its claimed inability
to pay a large forfeiture or voluntary contribution.
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. CBC agrees that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and that the Bureau has
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 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 the
Investigation. In consideration for the termination of the
Investigation, CBC 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
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 CBC
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 the 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 CBC with respect to CBC's basic
qualifications, including its character qualifications to be a
Commission licensee or hold Commission licenses or authorizations.
12. Settlement Terms. For purposes of settling the matters set forth
herein, CBC agrees to the following:
a. CBC agrees that it will not participate in any future auctions
conducted by the Commission.
b. The principals of CBC (Samuel D. Thomas, Richard Jones and Sidney
Abernathy) agree that they: (i) will not participate in any
future auctions conducted by the Commission in their own
capacity; (ii) will not participate in any future auctions
conducted by the Commission on behalf of any other person or
entity; and (iii) will not hold a position or interest of any
kind and to any extent whatsoever (financial or otherwise) in an
entity that participates in any future auctions conducted by the
Commission. Nothing in this subparagraph shall prevent the
principals of CBC from holding a position or interest in an
entity that is publicly traded on the New York Stock Exchange or
the NASDAQ Stock Market and which participates in any future
auctions conducted by the Commission.
13. Compliance Reports. CBC shall file a Compliance Report with the
Commission ninety (90) calendar days after the Effective Date, twelve
(12) months after the Effective Date, twenty-four (24) months after
the Effective Date, and thirty-six (36) months after the Effective
Date. CBC shall certify in its respective Compliance Reports to its
compliance during the relative time period with the terms and
conditions contained in this Consent Decree. If it is unable to
provide the requisite certification, it shall provide a detailed
explanation of the reason(s) why and describe fully (i) each instance
of noncompliance; (ii) the steps that CBC has taken or will take to
remedy such noncompliance, including the schedule on which proposed
remedial actions will be taken; and (iii) the steps that the CBC has
taken or will take to prevent the recurrence of any such
noncompliance, including the schedule on which such preventive action
will be taken. The certification shall be accompanied by a statement
explaining the basis for such certification and 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.^ 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 copies submitted electronically to Theresa Z. Cavanaugh at
Terry.Cavanaugh@fcc.gov and to Brian J. Carter at
Brian.Carter@fcc.gov.
14. Voluntary Contribution. CBC agrees that it will make a voluntary
contribution to the United States Treasury in the total amount of
Fifteen Thousand Dollars ($15,000.00) (Voluntary Contribution). This
amount was arrived at after careful consideration of CBC's claimed
inability to pay a large voluntary contribution and documentation
submitted by CBC to the Bureau in support thereof. The total payment
shall be made within thirty (30) calendar days after the Effective
Date. CBC 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).^ In addition, CBC agrees that it
will make the Voluntary Contribution in United States Dollars without
further demand or notice by the date specified above. CBC shall also
send electronic notification of payment to Theresa Z. Cavanaugh at
Terry.Cavanaugh@fcc.gov and to Brian J. Carter at Brian.Carter@fcc.gov
on the date said payment is made. The 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. 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 regarding the form of payment:
o 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.
o 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.
o 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.
Questions regarding payment procedures should be addressed to the
Financial Operations Group Help Desk by phone at 1-877-480-3201, or by
e-mail at ARINQUIRIES@fcc.gov.
15. Waivers. CBC 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. CBC 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
CBC nor the Commission shall contest the validity of the Consent
Decree or of the Adopting Order, and CBC shall waive any statutory
right to a trial de novo. CBC hereby agrees to waive any claims they
may otherwise have under the Equal Access to Justice Act^ relating to
the matters addressed in this Consent Decree.
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 the Consent Decree to which CBC does not expressly consent)
that provision will be superseded by such Rule or Commission order.
18. Successors and Assigns. CBC 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 with
respect to the Investigation. 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.
21. Modifications. This Consent Decree cannot be modified without the
advance written consent of all Parties.
22. 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.
23. Authorized Representative. Each Party represents and warrants to the
other Party that it has full power and authority to enter into this
Consent Decree. Each person signing this Consent Decree on behalf of a
Party hereby represents and warrants that he or she is fully authorized by
the Party to execute this Consent Decree and to bind the Party to its
terms and conditions.
24. 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.
By: _____________________________________ By:
_______________________________
P. Michele Ellison, Chief Samuel D. Thomas
Enforcement Bureau General Partner
Federal Communications Commission Cherokee Broadcasting Company
Date: ___________________________________ Date:
_____________________________
^ 47 C.F.R. S 1.2105(c).
^ We note that the amount of the voluntary contribution in this particular
case represents a departure from the forfeiture amounts that have been
imposed in other similarly situated cases involving compliance with
Section 1.2105(c) of the Rules. See, e.g., Star Wireless, LLC & Ne.
Commc'ns of Wis., Inc., Order on Review, 22 FCC Rcd 8943 (2007), review
denied, Star Wireless, LLC v. FCC, 522 F.3d 469 (D.C. Cir. 2008) (imposing
an initial forfeiture of $100,000 for a violation of the Commission's rule
against prohibited communications in Commission auctions). The amount of
the voluntary contribution in this particular case was predicated on the
submission by CBC of specific, detailed financial documentation evidencing
its inability to pay a more significant amount. We caution that the
voluntary contribution contemplated herein does not imply that the Bureau
has in any way modified its view on either the obligations of auction
participants to adhere strictly to their obligations under Section
1.2105(c) of the Rules or the severity of sanctions that are appropriate
for violations of Section 1.2105(c) of the Rules. But for the submission
by CBC of specific, detailed financial documentation evidencing its
inability to pay, the voluntary contribution in this case would have been
significantly higher.
^ 47 U.S.C. SS 154(i), 503(b).
^ 47 C.F.R. SS 0.111, 0.311.
^ 47 C.F.R. S 1.2105(c).
^ 47 C.F.R. S 1.2105(c)(1).
^ Id. S 1.2105(c)(6).
^ Auction of FM Broadcast Construction Permits Scheduled for March 29,
2011; Comment Sought on Competitive Bidding Procedures For Auction 91,
Public Notice, 25 FCC Rcd 13034 (2010).
^ See, e.g., Auction of FM Broadcast Construction Permits; Status of
Short-Form Applications to Participate in Auction 91, Public Notice, 26
FCC Rcd 3421 (2011). Specifically, the Commission reminded potential
participants that Section 1.2105(c) "prohibit[s] applicants for any of the
same geographic license areas from communicating with each other about
bids, bidding strategies, or settlements . . . unless they have identified
each other on their short-form applications as parties with which they
have entered into agreements . . . ." Id. at 3426, para.16.
^ See FCC Form 175 of Cherokee Broadcasting Company, Application to
Participate in an FCC Auction, submitted on February 10, 2011, 1:58 a.m.
ET; FCC Form 175 of Radio WEBS, Inc., Application to Participate in an FCC
Auction, submitted on February 9, 2011, 6:45 p.m. ET; FCC Form 175 of
Rebecca Sovine, Application to Participate in an FCC Auction, submitted on
February 10, 2011, 1:23 p.m. ET, resubmitted with modifications on March
16, 2011, 4:44 p.m. ET.
^ Notice of Prohibited Communication and Request for Investigation,
submitted by Cherokee Broadcasting Company (May 2, 2011) (on file in
EB-12-IH-0109) (May 2 Report).
^ Id.
^ Id.
^ Id.
^ Notice of Prohibited Communication and Request for Investigation,
submitted by Cherokee Broadcasting Company (May 3, 2011) (on file in
EB-12-IH-0109) (May 3 Report).
^ See Letter from Gary Schonman, Special Counsel, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to Dan J. Alpert, Counsel for Cherokee Broadcasting Company (Mar. 14, 2012
(on file in EB-12-IH-0109); Letter from Gary Schonman, Special Counsel,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, to Mark Lipp, Esq., counsel for Radio WEBS,
Inc. (Mar. 14, 2012) (on file in EB-13-IH-0547); Letter from Gary
Schonman, Special Counsel, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, to Rebecca Sovine
(Mar. 14, 2012) (on file in EB-13-IH-1086).
^ 47 C.F.R. S 1.16.
^ ^ Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, 110
Stat. 1321, 1358 (Apr. 26, 1996).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 5 U.S.C. S 504; 47 C.F.R. Part 1, Subpart K.
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