CONSENT DECR}E
I. In*roducton
1. This Consent Decree is entered into by and between the Media Bureau of the Federal
Communications Commission and Broadcast Towers, Inc., by their respective authorized representatives, for
the purpose of terminating the Bureau's Investigation into potential violations of the Act and Rules by BTI in
the course of its migration of the Translators from the Florida Keys to the Miami, Florida area.
IL Definitions
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. § § 151 et seq.;
(b) "Bureau" means the Media Bureau of the Federal Communications Commission;
(c) "BTI" means Broadcast Towers, Inc.;
(d) "Commission" or "FCC" means the Federal Communications Commission;
(e) "Effective Date" means the date on which the Bureau releases the Order;
(f) "Investigation" means the investigation commenced by the FCC in July 2009, which
culminated in the Bureau's September 28, 2009, Letter of Inquiry regarding whether
BTI had reasonable assurance of site availability at the sites specified in various
applications for the Translators filed between 2007 and 2009; whether the Translators
were silent for any period of thirty or more days; and whether the Translators posted
the information required by Section 74.1265(b) of the Rules;
(g) "Lacy" means William R. Lacy, the sole proprietor of BTI;
(h) "Order" means an order of the Bureau adopting this Consent Decree;
(i) "Other Florida Applications" means all applications filed by BTI and pending on the
Effective Date, which are related to broadcast stations, other than the Translators, and
which propose communities of license located in the State of Florida. This term
includes, but is not limited to, the applications filed by BTI for construction permits
for new FM translator stations at Naples, Florida (Facility ID No. 141122)
(Application File No. BNPFT-20030310BCD); Sarasota, Florida (Facility ID No.
141126) (Application File No. BNPFT-20030310BCE); Punta Gorda, Florida
(Facility ID No. 141127) (Application File No. BNPFT-200303 1OBCH); and Venice,
Florida (Facility ID No. 152216) (Application File No. BNPFT-200303 I7CWC).
(j) "Parties" means the Bureau and BTI;
(k) "Rules" means the Commission's Rules, found in Title 47 of the Code of Federal
Regulations;
(1) "Translators" means the following FM translator stations: W237C1, Miami Beach,
Florida (Facility ID No. 139223); W237DK, Leisure City, Florida (Facility ID No.
139053); W258BQ, Homestead, Florida (Facility ID No. 139054); DW224BW, Key
Laro, Plorlc(Pwlty rDNo. 19O5I); ind W295DF, Coral Qables, floriUa
(Facility ID No. 141053); and
(m) "Violations" means the failure of BTI to provide "dependable service" and "avoid
unwarranted interruptions" to service in violation of Section 74.1263 of the Rules;
the failure of BTI to notify the Commission that it discontinued operations at
W237DK for more than 30 days in violation of Section 74.1263(c) of the Rules; the
failure of BTI to obtain reasonable assurance of the availability of the transmitter
sites specified for the Translators as required by the Commission; the failure of BTI
to post all of the information required by Section 74.1265(b) of the Rules at the
transmitter sites; and the abuse of Commission processes committed by BTI as it
migrated the Translators north to Miami.
Ill. Background
3. BTI is the licensee of the Translators, which are licensed to various communities throughout
the Florida Keys. BTI acquired the original construction permits for the Translators during the FM Translator
filing window that the Commission opened in March 2003. Beginning in 2007, BTT filed a series of
applications designed to move each Translator's community of license north toward Miami to "take
advantage of the larger populations located there."
4. For each Translator, BTI initially filed an application to make a minor modification to the
Translator's construction permit. The application specified a roadside location for the Translator's
transmitter. Upon grant of this application, Lacy drove out to the location, parked his vehicle, and operated
the Translator for two to five hours using a telescoping antenna and portable generator. Lacy then
discontinued operations, disassembled the equipment, loaded it back up into his vehicle, and drove away.
5. BTI then filed an application for a license to cover the Translator's operations from this
roadside location. Upon grant of the license application, BTI repeated the process, filing an application to
make minor changes to the licensed facilities of the Translator that specified a transmitter location closer to
Miami. While an application was pending, Lacy would drive out to the currently authorized location for the
Translator, park his vehicle and operate the Translator for two to five hours once every thirty days. This
ensured that BTI did not need to seek Commission approval for the time the Translator was off air.
6. BTI's conduct was brought to our attention when Clear Channel Broadcasting Licenses, Inc.,
and WXDJ Licensing, Inc. (collectively, "Movants"), filed a joint Motion for Cancellation of FM Translator
Authorizations ("Motion") on June 8, 2009. Movants alleged that BTI abused the Commission's processes
and failed to comply with various Commission requirements, including those related to provision of
"dependable service," notification to the Commission of "intent to discontinue operations for 30 or more
consecutive days," posting of certain station information, and unattended operation. In addition, Movants
claimed that, in at least some instances, BTI lacked reasonable assurance of site availability.
7. On July 6 and 7, 2009, the Commission's Miami Resident Agent Office conducted an
investigation of the Translators. For each Translator, the agents found no evidence of any current or prior
Broadcast Towers, Inc., Opposition to Motion for Cancellation, Lacy Dec. at I (rec'cI June 23, 2009)
("Opposition").
construction of FM translator stations at the latest and the previously authorized transmitter sites.
Subsequently, on September 28, 2009, the Bureau issued a letter of inquiry ("LOT") to BTI. The LOT directed
BTI to state whether it had reasonable assurance of site availability at the sites specified in the applications for
1he TrGnlaor; whoher +k Prrhtor wz knt eor ny pvriod of thircy or morc clays and, if so, to explain
why BTI failed to notify the Commission of such silence; arid whether the Translators posted the information
required by Section 74.1265(b) of the Rules.
8. BTI responded to the LOT on October 28, 2009. Lacy argued that BTI had reasonable
assurance that all of the sites specified in the applications at issue would be available because, with one
exception, the sites were public roads, parks or parking lots, Lacy indicated that, with one exception, BTI
operated each station at least once every 30 days and pointed out that Section 74.1263 of the Rules does not
specify a minimum operating schedule for FM translators, Finally, Lacy admitted that "no 'sign' displaying
the station's call sign or contact information concerning the Translator's licensee was affixed to the structure
supporting the antenna at any of the sites." BTI argued that it was in compliance with Section 74.1263 by
virtue of Lacy's having been physically present at the sites while the Translators were in operation.
9. With respect to the issue of liability for the Commission rule violations that have occurred,
BTI has claimed an inability to make a voluntary contribution and provided documentation to support this
claim. The Bureau accepts BTI's financial showing as credible.
10. Because of the compliance issues identified in the Bureau's investigation, the Parties have
agreed to enter into this Consent Decree to which both BTI and the Bureau intend to be legally bound.
IV. Agreement
11. The Parties acknowledge that any proceeding that might result from the Violations would be
time-consuming and require a substantial expenditure of public and private resources. In order to conserve
such resources, to resolve the matter, and to promote BTI's compliance with the Rules, the Parties are
entering into this Consent Decree, in consideration of the mutual commitments made herein.
12. The Parties agree to be legally bound by the terms and conditions of this Consent Decree.
Both BTI and the Bureau each represent and warrant that its signatory is duly authorized to enter into this
Consent Decree on its behalf, and BTI and Lacy agree that this Consent Decree shall be binding on their
successors, assigns and transferees. BTI agrees that the Bureau has jurisdiction over the matters contained in
this Consent Decree and the authority to enter into and adopt this Consent Decree.
13. The Parties agree and acknowledge that this Consent Decree shall constitute a final settlement
between BTI and the Bureau concerning the Violations, as discussed herein.
14. 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 into the Violations.
The Bureau further agrees that, in the absence of new material evidence, it will not use the facts developed in
the Investigation through the Effective Date of this Consent Decree, or the existence of this Consent Decree,
to institute any new proceeding, formal or informal, or take any action on its own motion against BTI
concerning the matters that were the subject of the Investigation. The Bureau also agrees that it will not use
the facts developed in the Investigation through the Effective Date of this Consent Decree, or the existence of
this Consent Decree, to institute any proceeding, formal or informal, or take any action against BTI with
respect to BTI's basic qualifications, including character qualifications, to be a licensee. In the event that BTI
fails to satisfy any of its obligations under this Consent Decree, however, BTI acknowledges that the Bureau
may take any enforcement action available pursuant to the Act and the Rules with respect to each Violation,
and/or the violation of this Consent Decree. The Bureau agrees that BTI and Lacy need not disclose the
Violations in any pending or future application to which either is a party unless 131! or Lacy are found to have
violated this Consent Decree.
I . DTT hx-hy 3tpulat. t1it t fttilcd to piovidc "dopondabic serviec" and "avoid unwarranted
interruptions" to service from the Translators in violation of Section 74.1263(a) of the Rules. BTI also
stipulates that it failed to notify the Commission that it had discontinued operations at W237DK for more thaii
30 days and that such failure violated Section 74.1263(c) of the Rules. Further, BTI stipulates that it failed to
comply with the Commission's requirement that it obtain reasonable assurance of the availability of the
transmitter sites specified in the applications BTI filed for the Translators between 2007 and 2009. In
addition, 1311 stipulates that it violated Section 74.1265(b) of the Rules by failing to post certain information
at the transmitter sites specified in the applications BTI filed for the Translators between 2007 and 2009,
Finally, BTI stipulates that it abused the Commission's processes in the course of its migration of the
Translators north to Miami.
16. BTI agrees to the cancellation of the FCC authorizations for the Translators, and to the
dismissal of all pending applications related to the Translators, immediately upon the issuance of the Order.
In addition, BTI agrees to the dismissal of the Other Florida Applications, immediately upon issuance of the
Order. Finally, BTI commits to divest itself of W285E1-1, Key West, Florida (Facility ID No. 139134), within
one year after the release date of the Order and agrees that, if such divestiture has not occurred by this date,
the FCC shall cancel the FCC authorization for W285EH and dismiss all pending applications related to
W285EH.
17. BT1 and Lacy further agree that henceforth they will: (a) ensure that any transmitter site
specified in any application to which either is a party is available for continuous use; (b) obtain reasonable
assurance for the proposed use of any transmitter site specified in any application to which either is a party;
(c) provide "dependable service" (as described in Commission decisions involving FM and TV translators) on
any FM translator station licensed to them or to any entity in which either BTI or Lacy hold an attributable
interest and not discontinue operation except for reasons beyond their control; and (d) file minor change
applications only as contemplated by Section 74.1233(a) of the Rules. BTI represents that, as of date of its
execution of this Consent Decree, the information specified in Section 74.1265(b) of the Rules is posted at the
transmitter site of all FM translators for which it holds an FCC authorization and hereby commits that it will
ensure compliance with Section 74.1265(b) on a going forward basis.
18. }3T1 agrees that it is required to comply with each individual condition of this Consent
Decree. Each specific condition is a separate condition of the Consent Decree as approved. To the extent that
BTI fails to satisfy any condition or Commission Rule, in the absence of Commission alteration of the
condition or Rule, it will be deemed noncompliant and may be subject to possible enforcement action,
including, but not limited to, revocation of relief, designation of the matter for hearing, letters of
admonishment, or forfeitures.
19. BT1 waives any and all rights it may have to seek administrative orjudicial reconsideration,
review, appeal or stay, or to otherwise challenge the validity of this Consent Decree and the Order, provided
the Order adopts the Consent Decree without change, addition or modification.
20. BTI agrees to waive any claims that 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 discussed in this Consent Decree.
21. BTI and the Bureau agree that the effectiveness of this Consent Decree is expressly
contingent upon issuance of the Order, provided that the Order adopts the Consent Decree without change,
addition or modification.
22. BTI and the Bureau agree that, if BTJ, the Commission or the United States on behalf of the
Commission, brings a judicial action to enforce the terms of the Order adopting this Consent Decree, neither
BlI nor the Commission will contest the validity of the Consent Decree or Order, and BTT and the
Cornmson wll wavc any 3tatutory rht to tril ck novo with respett to any mauer upon which the Order
is based (provided in each case that the Order is limited to adopting the Consent Decree without change,
addition, or modification), and will consent to a judgment incorporating the terms of this Consent Decree.
23. BTI and the Bureau agree that, in the event that this Consent Decree is rendered invalid by
any court of competent jurisdiction, it shafl become null and void and may not be used in any manner in any
legal proceeding.
24, This Consent Decree may be signed in counterparts and/or by telecopy and, when so
executed, the counterparts, taken together, will constitute a legally binding and enforceable instrument
whether executed by telecopy or by original signatures.
MEDIA BUREAU
FEDERAL COMMUT4ICATIONS COMMISSION
/By:
William T. Lake, Chief
Date:
BROADCAST TOWERS, INC.
By:
William R. Lacy, President
Date: