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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
File No. EB-07-IH-5290
Atlantic Aviation FBO Holdings LLC )
Acct. No. 200832080085
Parent of Licensees of Various )
Authorizations in the Private Land Mobile FRN No. 0012148540
and Aeronautical and Fixed Services )
)
)
ORDER
Adopted: July 2, 2008 Released: July 2, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") of the Federal
Communications Commission and Atlantic Aviation FBO Holdings LLC
("Atlantic Aviation") for the purposes of resolving and terminating
the Bureau's investigation of compliance with Sections 310(d) and 301
of the Communications Act of 1934, as amended, and of Sections 1.948
and 1.903 of the Commission's Rules.
2. The Bureau and Atlantic Aviation 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 Atlantic Aviation 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 Atlantic Aviation shall make its voluntary
contribution to the United States Treasury, as specified in the
Consent Decree, by mailing a check or similar instrument payable to
the order of the Federal Communications Commission, 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 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). Atlantic Aviation will also send
electronic notification on the date said payment is made to
Ben.Bartolome@fcc.gov, Hillary.DeNigro@fcc.gov and
Gary.Oshinsky@fcc.gov.
8. 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 Tony Lin, Esq., Pillsbury Winthrop Shaw Pittman LLP,
2300 N Street, N.W., Washington, D.C. 20037.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No. EB-07-IH-5290
Atlantic Aviation FBO Holdings LLC )
FRN 0012148540
Parent of Licensees of Various )
Authorizations in the Private Land Mobile Acct. No. 200832080085
and Aeronautical and Fixed Services )
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
Atlantic Aviation FBO Holdings LLC ("Atlantic Aviation"), by their
respective authorized representatives, hereby enter into this Consent
Decree for the purposes of resolving and terminating the Bureau's
investigation of compliance with Sections 310(d) and 301 of the
Communications Act of 1934, as amended, and of Sections 1.948 and 1.903 of
the Commission's Rules.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
apply:
a. "Act" means the Communications Act of 1934, as amended;
b. "Adopting Order" or "Order" means an order of the Enforcement Bureau
adopting this Consent Decree;
c. "Allied" means Allied Capital Corporation, former holder of a
controlling interest in the Licensees, and includes its subsidiaries,
and affiliates, and each of their respective officers, directors,
employees, agents, representatives, and any other person acting on its
behalf and their successors or assigns;
d. "Atlantic Aviation" means Atlantic Aviation FBO Holdings LLC (formerly
Macquarie FBO Holdings LLC ("Macquarie")), current holder of a
controlling interest in the Licensees, and includes its subsidiaries,
and affiliates, and each of their respective officers, directors,
employees, agents, representatives, and any other person acting on its
behalf and their successors or assigns;
e. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission;
f. "Commission" or "FCC" means the Federal Communications Commission;
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order;
h. "Investigation" means the Bureau's investigation of Allied's
compliance with Sections 310(d) and 301 of the Act relating to
Allied's acquisition of control of the Licensees and Allied's use of
certain radio equipment;
i. "Licensees" mean Mercury Air Centers, Inc., licensee of
Industrial/Business Pool Stations KKY511, WPRU472, WPSQ652, WPZH438,
and WRO541; Mercury Air Center, licensee of Aeronautical and Fixed
Station WAI9; Mercury Air Centers - Newport News LLC, licensee of
Aeronautical and Fixed Station WBA9; Wofford Flying Services, Inc.,
licensee of Aviation Auxiliary Group Stations KC4108 and KOT6; and Air
Services of Cleveland, Inc., licensee of Industrial/Business Pool
Station WNRZ334;
j. "Parties" means Atlantic Aviation and the Bureau, collectively, and
"Party" means Atlantic Aviation or the Bureau, in its individual
capacity;
k. "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations.
II. BACKGROUND
2. Pursuant to Section 310(d) of the Communications Act and Section 1.948
of the Commission's Rules, control of a licensee holding Commission
authorizations may be transferred only upon prior application to and
approval by the Commission.
3. Atlantic Aviation owns, operates and invests in a diversified group of
infrastructure businesses which utilize FCC licenses for the provision of
fixed base operations at airports. In April 2007, Atlantic Aviation, then
doing business as Macquarie, entered into a stock purchase agreement to
acquire, among other things, a controlling interest in the Licensees from
Allied. In the course of conducting its due diligence in connection with
the planned transaction, Macquarie discovered, among other things, that
Allied may not have timely requested or obtained Commission consent to
acquire control of the Licensees and that certain radio equipment utilized
by Allied may not have been properly licensed. Thereafter, Macquarie and
Allied notified the Commission about Allied's compliance with Sections
310(d) and 301 of the Act. Allied filed applications seeking Commission
consent to the transfer of control of the Licensees to Allied and requests
for Special Temporary Authority to operate certain radio equipment. All of
those applications and requests were subsequently granted. Macquarie and
Allied then filed appropriate applications seeking Commission consent to
the transfer of control of the Licensees from Allied to Macquarie. The
parties consummated the transaction on August 8, 2007, after which Allied
ceased having any interest in Commission licensees or authorizations.
4. On August 24, 2007, and September 19, 2007, the Bureau commenced its
Investigation by directing letters of inquiry to Allied and to Atlantic
Aviation, then doing business as Macquarie, respectively. Allied and
Macquarie responded in the ordinary course.
5. The Parties recognize that Atlantic Aviation has at all relevant times
acted in compliance with applicable provisions of the Act and of the
Rules.
III. 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. Atlantic Aviation agrees that the Bureau has jurisdiction
over the matters that are the subject of this Consent Decree and 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. In
consideration for the termination of the Investigation, Atlantic Aviation
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 Atlantic Aviation
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 with
respect to Atlantic Aviation's basic qualifications, including its
character qualifications, to hold Commission authorizations.
10. Voluntary Contribution. Atlantic Aviation agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
$30,000. The payment will be made within 5 business days after the
Effective Date of the Adopting Order. The 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. 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).
11. Waivers. Atlantic Aviation 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. Atlantic Aviation 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 Atlantic Aviation nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Atlantic
Aviation shall waive any statutory right to a trial de novo. Atlantic
Aviation 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 Atlantic Aviation does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
14. Successors and Assigns. Atlantic Aviation 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 concerning
the matters referenced in paragraphs 3 and 4, above. 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.
For the Enforcement Bureau
________________________________ _______________
Kris Anne Monteith Date
Chief, Enforcement Bureau
For Atlantic Aviation FBO Holdings LLC
___________________________________ _______________
Peter Stokes Date
Chief Executive Officer of Atlantic Aviation FBO Holdings LLC
See 47 U.S.C. S:S: 310(d), 301.
47 C.F.R. S:S: 1.948, 1.903.
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
See 47 U.S.C. S:S: 310(d), 301.
47 C.F.R. S:S: 1.948, 1.903.
See 47 U.S.C. S:S: 151 et seq.
On June 5, 2008, the CORES database system was updated to reflect a
corporate name change from Macquarie FBO LLC to Atlantic Aviation FBO LLC,
under FRN 0012148540. On the same date, the single license authorization
held directly by Macquarie, for call sign WPED234, reflected an identical
name change in ULS (FCC File No. 0003463978).
In FCC Form 603, FCC Wireless Telecommunications Bureau Application for
Assignments of Authorization and Transfers of Control, File No.
0003062944, filed on June 8, 2007, Allied identified the licensee of
Station WPRU472 as "Mercury Air Center." However, the Commission's ULS
database identifies the licensee of this station as "Mercury Air Group."
See 47 U.S.C. S: 310(d).
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Chin Kyung Yoo, counsel for
Allied Capital Corporation, dated August 24, 2007; and Letter from Benigno
E. Bartolome, Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau, to Tony Lin, counsel for Macquarie FBO Holdings LLC,
dated September 19, 2007.
Federal Communications Commission DA 08-1451
2
Federal Communications Commission DA 08-1451