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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
CAPITOL BROADCASTING COMPANY, ) NAL/Acct. No. 200532080005
INC. ) File No. EB-04-IH-0048
) FRN No. 1961713
ORDER
Adopted: October 21, 2004 Released:
October 22, 2004
By the Chief, Enforcement Bureau:
1. The Enforcement Bureau has been investigating
whether Capitol Broadcasting Company, Inc. (``Capitol''),
licensee of various television broadcast stations, disclosed
information about its bids or bidding strategies in advance
of the Commission's auction of Multi-Channel Video
Distribution and Data Service licenses, held between January
14 and 27, 2004 (``Auction No. 53''), in violation of the
Commission's auction anti-collusion rule, 47 C.F.R. §
1.2105(c).
2. The Bureau and Capitol have negotiated the terms
of a Consent Decree, a copy of which is attached hereto and
incorporated by reference. After reviewing the terms of the
Consent Decree, we find that the public interest would be
served by approving the Consent Decree and terminating the
captioned investigation involving Capitol's conduct in
Auction No. 53.
3 Accordingly, IT IS ORDERED, pursuant to Section
4(i) of the Communications Act of 1934, as amended,1 that
the attached Consent Decree IS ADOPTED.
4. IT IS FURTHER ORDERED that the above-captioned
investigation involving Capitol IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
CONSENT DECREE
1. The Enforcement Bureau of the Federal
Communications Commission and Capitol Broadcasting
Company, Inc. hereby enter into this Consent Decree for
the purpose of terminating the Bureau's investigation
of Capitol Broadcasting's compliance with the
Commission's auction anti-collusion rule, section
1.2105(c), 47.C.F.R. § 1.2105(c).
2. For the purposes of this Consent Decree, the
following definitions shall apply:
1.a) ``Commission'' means the Federal
Communications Commission.
1.b) ``Bureau'' means the Enforcement Bureau of
the Commission.
1.c) ``Capitol Broadcasting'' means Capitol
Broadcasting Company, Inc., any affiliate, d/b/a,
predecessor-in-interest, parent company, any
wholly or partially owned subsidiary or other
affiliated company or business, and their
respective successors and assigns.
1.d) ``Parties'' means Capitol Broadcasting and
the Bureau, collectively, and ``Party'' means
Capitol Broadcasting or the Bureau, individually.
1.e) ``Order'' or ``Adopting Order'' means an
Order of the Bureau adopting the terms of this
Consent Decree without change, addition, deletion,
or modification.
1.f) ``Effective Date'' means the date on which
the Bureau releases the Adopting Order.
1.g) ``Auction No. 53'' means the Commission's
auction of Multichannel Video Distribution and
Data Service licenses, conducted between January
14 and 27, 2004.
1.h) ``Inquiry'' means the Bureau's investigation
of Capitol Broadcasting's compliance with Section
1.2105(c) of the Commission's rules in connection
with Auction No. 53.
I. BACKGROUND
3. On November 12, 2003, Capitol Broadcasting filed
an application with the Commission on FCC Form 175
(Application to Participate in an FCC Auction) to
participate in Auction No. 53 and represented therein
that it intended to bid for all 214 licenses that were
to be the subject of the auction. By Multichannel
Video Distribution and Data Service Spectrum Auction,
Public Notice, 18 FCC Rcd 26,068 (WTB 2003), at
Attachment A, the Commission's Wireless
Telecommunications Bureau certified Capitol
Broadcasting as a qualified bidder in Auction No. 53.
4. In January 2004, in his capacity as Vice
President, Special Projects of Capitol Broadcasting,
John L. Greene gave an interview to a reporter for
Broadcasting & Cable, a trade industry publication,
regarding Capitol Broadcasting's planned participation
in Auction No. 53. In response to questions from the
reporter, Mr. Greene indicated that Capitol
Broadcasting's interest in the auction was principally
in geographic areas served by its television broadcast
facilities in North Carolina and South Carolina. This
information was published in the January 5, 2004,
edition of Broadcasting & Cable.
5. By letter dated January 12, 2004, filed pursuant
to Section 1.2105(c)(6) of the Commission's rules, 47
C.F.R. § 1.2105(c)(6), Capitol Broadcasting informed
the Commission of Mr. Greene's interview and the
resulting published article. Following receipt of that
filing, upon referral by the Wireless
Telecommunications Bureau, the Bureau commenced the
Inquiry to determine whether, as a result of Mr.
Greene's published interview in Broadcasting and Cable,
Capitol had disclosed information about its bids or
bidding strategies, in violation of the Commission's
auction anti-collusion rule, 47 C.F.R. § 1.2105(c).
II. AGREEMENT
6. The Parties agree that the provisions of this
Consent Decree shall be subject to approval by the
Bureau by incorporation of such provisions by reference
in an Adopting Order.
7. Capitol Broadcasting acknowledges that the
Commission has jurisdiction to enforce the provisions
of section 1.2105 of the Commission's rules, 47 C.F.R.
§ 1.2105.
8. The Parties agree that this Consent Decree shall
become effective on the date on which the Bureau
releases the Adopting Order. Upon release, the
Adopting Order and this Consent Decree shall have the
same force and effect as any other orders of the
Bureau, and any violation of the terms of this Consent
Decree shall constitute a violation of a Commission
order, entitling the Commission or the Bureau, pursuant
to delegated authority, to exercise any rights and
remedies attendant to the enforcement of a Commission
order.
9. The Parties agree that this Consent Decree and
Capitol Broadcasting's voluntary contribution pursuant
to Paragraph 12 hereto do not constitute either an
adjudication on the merits or a factual or legal
finding or determination regarding any compliance or
noncompliance by Capitol Broadcasting with the
requirements of the Act or the Commission's rules and
orders. The Parties agree that this Consent Decree is
for settlement purposes only and that, by agreeing to
this Consent Decree, Capitol Broadcasting does not
admit to or deny liability for violating any statute,
regulation, or administrative rule in connection with
matters that are the subject of this Consent Decree.
10. As part of the Adopting Order, the Bureau will
terminate its Inquiry. From and after the Effective
Date, in the absence of the discovery of material new
information not previously disclosed to the Bureau by
Capitol Broadcasting, the Bureau will not, either on
its own motion or in response to any petition, third-
party objection, complaint or other information,
initiate any inquiries, investigations, forfeiture
proceedings, hearings or other actions, formal or
informal, against Capitol Broadcasting for the alleged
violation of the rules that was the subject of the
Inquiry or use the facts developed in the Inquiry
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 Capitol Broadcasting concerning
the matters that were the subject of the Inquiry. The
Bureau also will not use the underlying facts or
conduct relating to any of the foregoing for any
purpose relating to Capitol Broadcasting, and shall
treat all such matters as null and void for all
purposes.
11. In consideration for the termination by the Bureau
of its Inquiry in accordance with the terms of this
Consent Decree, Capitol Broadcasting agrees to the
terms, conditions and procedures contained herein.
12. Capitol Broadcasting agrees that it shall, within
thirty (30) calendar days after the Effective Date,
make a voluntary contribution to the United States
Treasury in the amount of ten thousand dollars
($10,000). The payment shall be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include
the NAL Acct. No. and the FRN No. referenced in the
Adopting Order. Payment by check or money order may be
mailed to Forfeiture Collection Section, Finance
Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by
overnight mail may be sent to Bank One/LB 73482, 525
West Monroe, 8th Floor Mailroom, Chicago, Illinois
60661. Payment by wire transfer may be made to ABA
Number 071000013, receiving bank Bank One, and account
number 1165259.
13. Capitol Broadcasting agrees, to the extent it has
not already done so, to implement a Compliance Program,
a copy of which is appended hereto, within thirty (30)
calendar days of the Effective Date. Capitol
Broadcasting further agrees that such Compliance Plan
shall continue in effect for a period of not less than
three (3) years thereafter.
14. Except as expressly provided in this Consent
Decree, this Consent Decree shall not prevent the
Commission from investigating material new evidence of
noncompliance by Capitol Broadcasting of the Act, the
rules, or this Order.
15. Capitol Broadcasting 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 Degree and the Order adopting this Consent
Decree, provided that the Bureau issues an Order
adopting the Consent Decree without change, addition,
modification, or deletion. Capitol Broadcasting shall
retain the right to challenge Commission interpretation
of the Consent Decree or any terms contained herein.
16. Capitol Broadcasting's decision to enter into this
Consent Decree is expressly contingent upon the
Bureau's issuance of an Order that is consistent with
this Consent Decree, and which adopts the Consent
Decree without change, addition, modification, or
deletion.
17. In the event that this Consent Decree 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.
18. 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 Capitol
Broadcasting nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order,
and Capitol Broadcasting shall waive any statutory
right to a trial de novo. Capitol Broadcasting shall
retain the right to challenge Commission interpretation
of the Consent Decree or any terms contained herein.
19. Capitol Broadcasting agrees that any violation by
it of the Consent Decree or the Adopting Order shall
constitute a separate violation of a Commission order,
entitling the Commission to exercise any rights or
remedies authorized by law attendant to the enforcement
of a Commission order.
20. 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 Capitol Broadcasting does not
consent), that provision will be superseded by such
Commission rule or order.
21. Capitol Broadcasting hereby agrees to waive any
claims it may otherwise have under the Equal Access to
Justice Act, 5 U.S.C. § 504 and 47 C.F.R. § 1.1501 et
seq., relating to the matters addressed in this Consent
Decree.
22. Each Party represents and warrants to the other
that it has full power and authority to enter into this
Consent Decree.
23. This Consent Decree may be signed in counterparts.
ENFORCEMENT BUREAU
_____________________________- ________________________
___ Date
David H. Solomon
Chief, Enforcement Bureau
Federal Communications
Commission
CAPITOL BROADCASTING COMPANY,
INC.
________________________
Date
_____________________________-
___
James F. Goodmon
President and CEO
Capitol Broadcasting Company,
Inc.
ATTACHMENT
COMPLIANCE PLAN OF CAPITOL BROADCASTING COMPANY, INC.
1. Capitol Broadcasting shall implement a formal,
comprehensive compliance program (the "Compliance
Program") for the education of all officers, employees,
contractors, consultants and any other persons or
entities who have or will have responsibilities for or
on behalf of Capitol Broadcasting relating to the
participation by Capitol Broadcasting in FCC-conducted
auctions (collectively, ``Auctions Personnel''). The
purpose of the Compliance Program is to ensure
compliance by Capitol Broadcasting with all applicable
auction?related rules and regulations of the Federal
Communications Commission and the prompt reporting of
possible violations thereof, including, but not limited
to, the auction anti-collusion provisions of Section
1.2105(c) of the Commission's rules, 47 C.F.R. §
1.2105(c). Capitol Broadcasting may at its own
discretion terminate the Compliance Program after three
(3) years from the date of its implementation.
2. The head of Capitol Broadcasting's corporate
compliance shall administer the Compliance Program (the
"Administrator"). The Administrator shall establish
and maintain a monitoring and evaluation scheme to
oversee mandatory participation in the Compliance
Program prior to the assumption of auction?related
duties by Auctions Personnel. The Administrator shall
require written certification from Auctions Personnel
that each has read, understands and agrees to abide by
the terms of the Consent Decree and the Commission's
auction-related rules and regulations. The
Administrator shall further maintain auditable records
and shall produce such records within ten (10) calendar
days upon written request of the Commission. The
Administrator shall have primary responsibility for
compliance by Capitol Broadcasting with Section
1.2105(c) of the Commission's rules and will provide a
copy to the Bureau of any notification filed by Capitol
Broadcasting pursuant to Section 1.2105(c)(6) of the
Commission's rules at the time of such filing with the
Commission's Wireless Telecommunications Bureau.
_________________________
1 47 U.S.C. § 154(i).