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Order for Station WITC (FM), Cazenovia, NY

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Released: August 13, 2014
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__________________________Federal Communications Commission DA 14-1101

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Application of

)

)

Cazenovia College

)

Facility ID No. 9430

)

NAL/Acct. No. MB-201441410026

For Renewal of License for

)

FRN: 0014703235

Station WITC(FM)

)

File No. BRED-20140203ASS

Cazenovia, New York

)

ORDER

Adopted: August 12, 2014

Released: August 13, 2014

By the Chief, Media Bureau:

1.

In this Order, we adopt the attached Consent Decree entered into by the Media Bureau

(“Bureau”) and Cazenovia College (“Cazenovia), the licensee for noncommercial educational Station

WITC(FM), Cazenovia, New York (the “Station”). The Consent Decree resolves issues arising from the

Bureau’s review of the captioned license renewal application (“Renewal Application”) for the Station as

to whether the Station violated Section 73.35271 of the Commission’s Rules (the “Rules”).

2.

Cazenovia has shown that, at the time of the violations, the Station was a student-run

noncommercial educational (“NCE”) FM station licensed to Cazenovia and that the violations at the

Station are first-time documentation violations within the parameters of our policy concerning violations

of documentation requirements of Rules by student-run NCE radio stations.2 We have negotiated the

attached Consent Decree, which provides for Cazenovia to carry out a compliance plan that meets the

requirements of the new policy and to make a voluntary contribution to the United States Treasury in the

amount of $1,000.

3.

After reviewing the terms of the Consent Decree, we find that the public interest will be

served by its approval and by terminating all pending proceedings relating to the Bureau’s consideration

of potential violations of the Rules disclosed in the Renewal Application.

4.

Based on the record before us, we conclude that nothing in that record creates a

substantial or material question of fact as to whether Cazenovia possess the basic qualifications to be a

1 47 C.F.R. § 73.3527.

2 See William Penn University, Policy Statement and Order, 28 FCC Rcd 6932 ¶ 2 (MB 2013) (in cases of “first-

time violations of certain documentation requirements of our Rules by student-run NCE radio stations . . . instead of

issuing a Notice of Apparent Liability (NAL), the Bureau will first afford the licensee an opportunity to negotiate a

consent decree in which the licensee agree to a compliance plan and makes a voluntary contribution to the United

States Treasury. In negotiating the amount of the voluntary contribution, the Bureau will consider the totality of

circumstances, including giving appropriate consideration to the station’s finances with respect to reducing the base

forfeiture amount significantly.”).

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__________________________Federal Communications Commission DA 14-1101

Commission licensee.

5.

ACCORDINGLY, IT IS ORDERED that, pursuant to Section 4(i) of the

Communications Act of 1934, as amended,3 and by the authority delegated by Sections 0.61 and 0.283 of

the Rules,4 the Consent Decree attached hereto IS ADOPTED.

6.

IT IS FURTHER ORDERED that the investigation by the Media Bureau of the matters

noted above IS TERMINATED.

7.

IT IS FURTHER ORDERED that copies of this Order shall be sent, by First Class and

Certified Mail, Return Receipt Requested, to Cazenovia College, 22 Sullivan Street, Cazenovia, New

York 13035, and to its counsel, David A. O’Connor, Esq., Wilkinson Barker Knauer, LLP, 2300 N Street,

N.W., Suite 700, Washington, DC 20037-1128.

FEDERAL COMMUNICATIONS COMMISSION

William T. Lake

Chief, Media Bureau

3 47 U.S.C. § 4(i).

4 47 C.F.R. §§ 0.61, 0.283.

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__________________________Federal Communications Commission DA 14-1101

CONSENT DECREE

I.

Introduction

1.

This Consent Decree is entered into by and between the Media Bureau of the Federal

Communications Commission and Cazenovia College, by their respective authorized representatives, for

the purpose of resolving certain issues regarding compliance with the Public File Rule, as defined below,

that have arisen in the Media Bureau’s review of the pending application for the renewal of the license for

Noncommercial Educational Station WITC(FM), Cazenovia, New York.

II.

Definitions

2.

For 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) “Commission” or “FCC” means the Federal Communications Commission;

(d) “Compliance Plan” means the processes and procedures developed by the Licensee

in an effort to ensure compliance with the Public File Rule at the Station, as

summarized in the Appendix hereto;

(e) “Effective Date” means the date on which the Bureau releases the Order;

(f) “Execution Date” means the date on which this Consent Decree is executed by the

last of the Parties to do so;

(g) “Licensee” or “Cazenovia” refers to Cazenovia College;

(h) “Order” means the Order of the Bureau adopting this Consent Decree;

(i) “Parties” means the Bureau and the Licensee;

(j) “Public File Rule” means Section 73.3527 of the Commission’s Rules, 47 C.F.R.

§ 73.3527;

(k) “Renewal Application” means the pending application for the renewal of the license

for Station WITC(FM), Cazenovia, New York (File No. BRED-20140203ASS);

(l) “Rules” means the Commission’s Rules, found in Title 47 of the Code of Federal

Regulations;

(m) “Station” means Station WITC(FM), Cazenovia, New York (Facility ID No. 9430);

and

(n) “Violations” means the violations of the Public File Rule.

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__________________________Federal Communications Commission DA 14-1101

III.

Background

3.

On February 3, 2014, Licensee filed the Renewal Application to renew its license for the

Station. In the Renewal Application, Licensee disclosed to the Commission that the Station had not fully

complied with the Public File Rule. Specifically, License stated that quarterly issues and programs lists

for the fourth quarter of 2007 through the fourth quarter of 2009 were not placed in the Station’s public

inspection file in a timely manner.

4.

Because of the compliance issues raised by these disclosures, the Parties have agreed to

enter into this Consent Decree, to which both the Licensee and the Bureau intend to be legally bound.

IV.

Agreement

5.

The Parties acknowledge that any proceeding that might result from the Public File Rule

compliance issues referred to in Paragraph 3 above 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 Licensee’s compliance with the Public File Rule, the Parties are entering into this Consent

Decree, in consideration of the mutual commitments made herein.

6.

The Licensee and the Bureau agree to be legally bound by the terms and conditions of

this Consent Decree. Each represents and warrants to the other that its signatory is duly authorized to

enter into this Consent Decree on its behalf. The Licensee 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.

7.

The Parties agree and acknowledge that this Consent Decree shall constitute a final

settlement between the Licensee and the Bureau concerning the Licensee’s Violations at the Station, as

discussed herein.

8.

In express reliance on the covenants and representations in this Consent Decree, the

Bureau agrees that it will not use the Violations in any action against the Licensee, provided that the

Licensee satisfies all of its obligations under this Consent Decree. In the event that the Licensee fails to

satisfy any of its obligations under this Consent Decree, 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.

9.

The Licensee hereby stipulates that it has failed to comply with the Public File Rule in its

maintenance of the public inspection file of the Station during the 2006-2014 license term, but contends

that the failure of compliance does not rise to the level of a willful or repeated violation of the Public File

Rule as those terms are defined in the Act.

10.

The Licensee agrees to make a voluntary contribution to the United States Treasury in the

amount of One Thousand Dollars ($1,000.00). Such contribution will be made, without further protest or

recourse to a trial de novo, by a check or similar instrument, wire transfer or money order payable to the

order of the Federal Communications Commission. Payment by check or money order maybe mailed to

Federal Communications Commission, at P.O. Box 979088, St. Louis, MO 63197-9000. Payment by

overnight mail may be sent to U.S. Bank-Government Lockbox #979088, SLMO-C2-GL, 1005

Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number

021030004, receiving bank: TREAS NYC, BNF: FCC/ACV--27000001 and account number as expressed

on the remittance instrument. If completing the FCC Form 159, enter the NAL/Account number in block

number 23A (call sign/other ID), and enter the letters "FORE" in block number 24A (payment type code).

Licensee will also send electronic notification on the date said payment is made to Kim.Varner@fcc.gov.

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__________________________Federal Communications Commission DA 14-1101

11.

The Bureau agrees to grant the Renewal Application after the Effective Date provided

that the following conditions have been met: 1) Licensee has fully and timely satisfied its obligation to

make the voluntary contribution referenced in paragraph 10 of this Decree; and 2) there are no issues

other than the Violations that would preclude grant of the Renewal Application.

12.

The Licensee represents that, in addition to its existing policies and procedures, it has

adopted, is currently in the process of implementing, and agrees to abide by the Compliance Plan for the

purpose of ensuring compliance with the Public File Rule. Licensee agrees, to the extent that it has not

already done so, to implement this Compliance Plan at the Station no later than thirty (30) days after the

Effective Date, except as otherwise specified within the Compliance Plan, and to keep such Compliance

Plan in effect for three (3) years after the Effective Date.

13.

The Licensee represents that, as of the Execution Date of this Consent Decree, the

Station’s public file fully complies with the Public File Rule.

14.

The Licensee 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 the Licensee 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 the relief, designation of the

matter for hearing, letters of admonishment and/or forfeitures.

15.

The Consent Decree will be binding on the Licensee’s successors-in-interest and assigns.

The Licensee agrees that any future application to assign or transfer control of the Station within three (3)

years of the Effective Date will include a statement executed by an authorized representative of the

proposed assignee or transferee consenting to assumption of the responsibilities and duties set forth in this

Consent Decree with regard to the Station.

16.

The Licensee waives any and all rights it may have to seek administrative or judicial

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.

17.

The Licensee agrees to waive any claims it may otherwise have under the Equal Access

to Justice Act, 5 U.S.C. Section 504 and 47 C.F.R. Section 1.1501 et seq., relating to the matters

discussed in this Consent Decree.

18.

The Licensee and the Bureau agree that the effectiveness of this Consent Decree is

expressly contingent upon issuance of the Order, provided the Order adopts the Consent Decree without

change, addition or modification.

19.

The Licensee and the Bureau agree that if the Licensee, 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 the Licensee nor the Commission will contest the validity of the Consent

Decree or Order, and the Licensee and the Commission will waive any statutory right to a trial de novo

with respect to any matter 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.

20.

The Licensee and the Bureau agree that, in the event that this Consent Decree is rendered

invalid by any court of competent jurisdiction, it will become null and void and may not be used in any

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__________________________Federal Communications Commission DA 14-1101

manner in any legal proceeding.

21.

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 COMMUNICATIONS COMMISSION

By: ____________________________________

William T. Lake, Chief

Date: __________________________________

CAZENOVIA COLLEGE

By: _________________________________________

Mark J. Tierno, President

Date: __________________________________

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__________________________Federal Communications Commission DA 14-1101

APPENDIX

COMPLIANCE PLAN FOR STATION WITC(FM)

For a period of three (3) years, Cazenovia College, or its successor-in-interest, as appropriate, will

institute the following procedures to ensure compliance with the Commission’s Public File Rule.

Unless otherwise provided, all terms defined in the Consent Decree apply to this Compliance

Plan.

I.

A.

The Station Manager and other appropriate staff of the Station will log all broadcasts of

public affairs and public service programming broadcast by the Station. These logs will

be compiled into quarterly issues/programs lists and will be timely placed in the public

file of the Station.

B.

All such quarterly issues/programs lists will be signed and dated by their preparer before

they are placed in the public file.

C.

Late-filed lists will be reviewed and signed by the Station’s management and

accompanied in the Station’s public file with a statement indicating the nature of the

document, the date placed in the public file, and the reason for the late filing.

D.

Within 90 days from the Effective Date of this Compliance Plan, Licensee will conduct

training for all Station employees and management on compliance with FCC Rules

applicable to Station operations. It will designate its Station Manager as a Compliance

Officer responsible for responding to Station employee questions and consulting with

outside counsel familiar with Communications law regarding compliance matters. The

Station will conduct refresher training for Station employees and management at least

once every twelve (12) months, and will train any new Station employee within five (5)

business days of commencement of his or her duties at the Station.

II.

Licensee or successor licensees, as appropriate, will conduct annual audits of the Station’s public

file. The three-year period will terminate on the successful completion of the third annual public

file audit. The second and third audits will be due on the anniversary of the first audit.

III.

Licensee shall annually submit a sworn certification to the Commission, signed by Licensee, that

the Station’s public file fully complies with the Public File Rule. If the Licensee cannot truthfully

make this certification, it shall set forth in detail any public file deficiencies and describe any

corrective measures taken. This report shall be filed within ten (10) days of the completion of

the first annual public file audit pursuant to Item II above, and on that date yearly thereafter for a

period of three years. A copy will be served on Peter H. Doyle, Chief, Audio Division, Media

Bureau, Federal Communications Commission and e-mailed to him at Peter.Doyle@fcc.gov.

IV.

This Compliance Plan will be under the direct supervision of Dr. Sharon Dettmer, or by any

member of Cazenovia College designated by Dr. Mark J. Tierno, President, or in the event Dr.

Tierno is no longer with the Cazenovia College or if the license has been assigned, by his/her

successor or his/her successor’s designee who is affiliated with the successor Licensee’s Board.

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