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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-10-SE-145
In the Matter of
) Acct. No.: 201232100020
Uniradio Corporation
) FRN: 0008982407
)
ORDER
Adopted: March 14, 2012 Released: March 14, 2012
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 Uniradio Corporation (Uniradio). The Consent Decree
resolves and terminates the Bureau's investigation into Uniradio's
compliance with Section 325(c) of the Communications Act of 1934, as
amended (Act), pertaining to the delivery of programming to a foreign
broadcast station.
2. The Bureau and Uniradio have negotiated a Consent Decree that resolves
this matter. A copy of the Consent Decree is attached hereto and
incorporated herein 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 Uniradio 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 Act,
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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Ricardo Astiazaran, General Manager, Uniradio
Corporation, 5030 Camino De La Siesta, Suite 403, San Diego, CA 92108,
and to Mark C. Del Bianco, Esq., Counsel for Uniradio Corporation,
3929 Washington Street, Kensington, MD 20895.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-10-SE-145
In the Matter of
) Acct. No.: 201232100020
Uniradio Corporation
) FRN: 0008982407
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
Uniradio Corporation, by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Enforcement
Bureau's investigation into possible violations of Section 325(c) of the
Communications Act of 1934, as amended, pertaining to the delivery of
programming to a foreign broadcast station.
I. DEFINITIONS
1. 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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Uniradio is subject by virtue of its business activities,
including but not limited to, the Licensing and Permitting Rules.
f. "Compliance Plan" means the compliance obligations and compliance
program described in this Consent Decree at paragraph 9.
g. "Covered Employees" means all employees and agents of Uniradio who
perform duties, or supervise, oversee, or manage the performance of
duties that relate to Uniradio's responsibilities under the Licensing
and Permitting Rules.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Investigation" means the investigation commenced by the Bureau's July
25, 2011 letter of inquiry regarding Uniradio's delivery of
cross-border programming to Mexican broadcast station XERCN, Tijuana,
Mexico.
j. "Licensing and Permitting Rules" means Section 325(c), Section 301of
the Act, Section 1.949(a) of the Rules, and other Communications Laws
that prohibit the use or operation of a wireless radio station or the
delivery of programming to a foreign broadcast station without a valid
authorization.
k. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by Uniradio to
implement the Compliance Plan.
l. "Parties" means Uniradio and the Bureau, each of which is a "Party."
m. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
n. "Section 325(c)" means Section 325(c) of the Act, 47 U.S.C. S: 325(c).
o. "Uniradio" means Uniradio Corporation and its predecessors-in-interest
and successors-in-interest.
II. BACKGROUND
2. Section 325(c) prohibits the transmission or delivery of programming
from a broadcast studio, place or other apparatus within the United
States to a broadcast station located in a foreign country that can be
received consistently in the United States without first obtaining a
permit from the Commission. The Commission reviews an application for
a Section 325(c) permit under the same public interest, convenience,
and necessity standard that is applied to applications for station
licenses. Section 325(c) serves to prevent interference to broadcast
stations' signals as well as the introduction of broadcast material
deemed inimical to the public interest, within the United States.
3. On September 13, 2010, Uniradio filed a request for special temporary
authority (STA Request) to deliver cross-border programming to Mexican
broadcast station XERCN, Tijuana, Mexico (XERCN). In its STA Request,
Uniradio voluntarily disclosed that it lacked authority for certain
ongoing cross border transmissions of Spanish language programming to
XERCN. Uniradio further reported that it had discovered the previous
week that an application prepared in May 2009 for the renewal of its
Section 325(c) permit had not been filed with the Commission. Uniradio
submitted an application for a new Section 325(c) permit on September
14, 2010. The International Bureau granted the STA Request on
September 22, 2010 and granted Uniradio's application for a new
Section 325(c) permit on November 2, 2010. The International Bureau
subsequently referred Uniradio's apparent violation to the Bureau for
investigation and possible enforcement action.
4. On July 25, 2011, the Bureau's Spectrum Enforcement Division issued
the letter of inquiry (LOI) to Uniradio, directing the company to
submit a sworn written response to a series of questions regarding its
compliance with Section 325(c). Uniradio responded to the LOI on
August 19, 2011 (LOI Response). In the LOI Response, Uniradio
confirmed the information previously submitted in its STA request
regarding certain unauthorized foreign transmissions, but claimed that
it filed both the STA Request and the application for a new Section
325(c) permit promptly after discovering the issue. The Bureau and
Uniradio subsequently entered into tolling agreements to toll the
statute of limitations.
III. TERMS OF AGREEMENT
5. 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.
6. Jurisdiction. Uniradio agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and that the Bureau
has the authority to enter into and adopt this Consent Decree.
7. 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.
8. 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, Uniradio 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 Uniradio 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 Uniradio
with respect to Uniradio's basic qualifications, including its
character qualifications, to be a Commission licensee or to hold
Commission licenses or authorizations.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Uniradio agrees that it shall within sixty (60) calendar days
after the Effective Date, develop and implement a Compliance Plan to
help ensure future compliance with the Communications Laws, including
the Licensing and Permitting Rules, and with the terms and conditions
of this Consent Decree. The Compliance Plan shall include, without
limitation, the following components:
a. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Uniradio shall designate a senior corporate manager
with the requisite corporate and organizational authority to serve as
Compliance Officer and to discharge the duties set forth below. The
person designated as the Compliance Officer shall be responsible for
developing, implementing, and administering the Compliance Plan and
ensuring that Uniradio complies with the terms and conditions of the
Compliance Plan and this Consent Decree. In addition to the general
knowledge of the Communications Laws necessary to discharge his/her
duties under this Consent Decree, the Compliance Officer shall have
specific knowledge of the Licensing and Permitting Rules prior to
assuming his/her duties. In addition, the Compliance Officer shall
have reviewed and be familiar with the conditions imposed by the
Commission in all Section 325(c) permits issued to Uniradio.
b. Operating Procedures. Within sixty (60) calendar days after the
Effective Date, Uniradio shall establish Operating Procedures that
all Covered Employees must follow to help ensure Uniradio's
compliance with the Licensing and Permitting Rules. As part of the
Operating Procedures, the Compliance Officer shall designate a
Covered Employee to be responsible for developing and maintaining a
database of all licenses, permits, and other authorizations issued to
Uniradio by the Commission, including all permits issued to Uniradio
pursuant to Section 325(c), and the expiration date of each such
authorization. The Compliance Officer shall ensure that Uniradio
timely files an application for renewal of any license, permit, or
authorization for which renewal is required under the Licensing and
Permitting Rules. Uniradio shall also adopt Operating Procedures to
ensure regular monitoring of its compliance with the conditions
imposed by its Section 325(c) permits and other licenses and
authorizations.
c. Compliance Manual. Within sixty (60) calendar days after the
Effective Date, the Compliance Officer shall develop and distribute a
Compliance Manual to all Covered Employees. The Compliance Manual
shall explain the requirements of the Licensing and Permitting Rules,
and shall set forth the Operating Procedures that Covered Employees
shall follow to help ensure compliance with such requirements. In
addition, the Compliance Manual shall set forth the Operating
Procedures that Covered Employees shall follow to help ensure
Uniradio's compliance with the conditions imposed by its Section
325(c) permits. Uniradio shall periodically review and revise the
Compliance Manual as necessary to ensure that the information set
forth therein remains current and complete. Uniradio shall distribute
any revisions to the Compliance Manual promptly to all Covered
Employees.
d. Compliance Training. Within sixty (60) calendar days after the
Effective date, Uniradio shall establish and implement a Compliance
Training Program on compliance with the Licensing and Permitting
Rules and the Operating Procedures. As part of the Compliance
Training Program, Covered Employees shall be advised of Uniradio's
obligation to report any noncompliance with the Licensing and
Permitting Rules under paragraph 10 of this Consent Decree and shall
be instructed on how to disclose noncompliance to the Compliance
Officer. All Covered Employees shall be trained pursuant to the
Compliance Training Program within sixty (60) calendar days after the
Effective Date, except that any person who becomes a Covered
Employee at any time after the Effective Date shall be trained within
thirty (30) calendar days after the date such person becomes a
Covered Employee. Uniradio shall repeat the compliance training on an
annual basis, and shall periodically review and revise the Compliance
Training Program as necessary to ensure that it remains current and
complete and to enhance its effectiveness.
e. Termination Date. Unless stated otherwise, the requirements of this
paragraph 9 of the Consent Decree shall expire twenty-four (24)
months after the Effective Date.
10. Reporting Noncompliance. Uniradio shall report any noncompliance with
the Licensing and Permitting Rules and any noncompliance with the
terms and conditions of this Consent Decree within fifteen (15)
calendar days after discovery of such noncompliance. Such reports
shall include a detailed explanation of (i) each instance of
noncompliance; (ii) the steps that Uniradio has taken or will take to
remedy such noncompliance; (iii) the schedule on which such remedial
actions will be taken; and (iv) the steps that Uniradio has taken or
will take to prevent the recurrence of any such noncompliance. All
reports of noncompliance shall be submitted to the Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, Room 3-C366, 445 12th Street, S.W. Washington, D.C. 20554,
with a copy submitted electronically to Kevin Pittman at
Kevin.Pittman@fcc.gov and to Daudeline Meme at Daudeline.Meme@fcc.gov.
The reporting obligations set forth in this paragraph 10 shall expire
twenty-four (24) months after the Effective Date.
11. Compliance Reports. Uniradio shall file Compliance Reports with the
Commission ninety (90) calendar days after the Effective Date, twelve
(12) months after the Effective Date, and twenty-four (24) months
after the Effective Date.
a. Each compliance report shall include a detailed description of
Uniradio's efforts during the relevant period to comply with the
Licensing and Permitting Rules, and with the terms and conditions of
this Consent Decree. In addition, each Compliance Report shall include
a certification by the Compliance Officer, as an agent of and on
behalf of Uniradio, stating that the Compliance Officer has personal
knowledge that Uniradio (i) has established and implemented the
Compliance Plan; (ii) has utilized the Operating Procedures since the
implementation of the Compliance Plan; and (iii) is not aware of any
instances of noncompliance with the terms and conditions of this
Consent Decree, including the reporting obligations set forth in
paragraph 10 hereof.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such certification and must 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.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Uniradio,
shall provide the Commission with a detailed explanation of the
reason(s) why and describe fully (i) each instance of noncompliance;
(ii) the steps that Uniradio 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 Uniradio has taken or
will take to prevent the recurrence of any such noncompliance,
including the schedule on which such preventive action will be taken.
d. All Compliance Reports shall be submitted to the Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554, with a copy
submitted electronically to Kevin Pittman at Kevin.Pittman@fcc.gov and
to Daudeline Meme at Daudeline.Meme@fcc.gov.
12. Voluntary Contribution. Uniradio agrees that it will make a voluntary
contribution to the United States Treasury in the amount of nine
thousand dollars ($9,000), such Voluntary Contribution to be made in
three equal payments (each an Installment Payment) of three thousand
dollars ($3,000). The first Installment Payment is due within thirty
(30) calendar days of the Effective Date, the second Installment
Payment is due within six (6) months after the Effective Date, and the
final Installment Payment is due within twelve (12) months after the
Effective Date (Maturity Date). Uniradio acknowledges and agrees that
upon execution of this Consent Decree, the Voluntary Contribution and
each Installment Payment shall become a "Claim " or "Debt" as defined
in 31 U.S.C. S: 3701(b)(1). Upon an Event of Default, all procedures
for collection permitted by law may, at the Commission's discretion,
be initiated. In addition, Uniradio agrees that it will make the first
and all subsequent Installment Payments in United States Dollars
without further demand or notice by the dates specified above.
Installment Payments must be made by check or similar instrument,
payable in United States Dollars to the order of the Federal
Communications Commission. The payments must include the Account
Number and FRN referenced in the caption to the Adopting Order.
Payments by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payments by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payments by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. For payments by
credit card, an 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). Uniradio shall also send electronic
notification to Kevin Pittman at Kevin.Pittman@fcc.gov, Daudeline Meme
at Daudeline.Meme@fcc.gov, and Samantha Peoples at
Sam.Peoples@fcc.gov. on the date each payment is made.
13. Event of Default. Uniradio agrees that an Event of Default shall occur
upon the failure by Uniradio to pay the full amount of any Installment
Payment on or before the due date specified in this Consent Decree.
14. Interest, Charges for Collection, and Acceleration of Maturity Date.
Upon an Event of Default under this Consent Decree, the then unpaid
amount of the Voluntary Contribution shall accrue interest, computed
using the rate of the U.S. Prime Rate in effect on the date of the
Event of Default, plus 4.75 percent, from the date of the Event of
Default until payment in full. Upon an Event of Default, the then
unpaid amount of the Voluntary Contribution, together with interest,
as aforesaid, any penalties permitted and/or required by the law,
including but not limited to 31 U.S.C. S: 3717 and administrative
charge(s), plus the costs of collection, litigation, and attorneys'
fees, shall become immediately due and payable, without notice,
presentment, demand, protest, or notice of protest of any kind, all of
which are waived by Uniradio.
15. Waivers. Uniradio 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. Uniradio 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 Uniradio nor the Commission shall contest the
validity of the Consent Decree or of the Adopting Order, and Uniradio
shall waive any statutory right to a trial de novo. Uniradio hereby
agrees to waive any claims it may 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.
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 this Consent Decree to which Uniradio does not expressly
consent) that provision will be superseded by such Rule or Commission
order.
18. Successors and Assigns. Uniradio 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 requirements of the
Communications Laws.
20. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
21. 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.
22. Authorized Representative. The individual signing this Consent Decree
on behalf of Uniradio represents and warrants that he is authorized by
Uniradio to execute this Consent Decree and to bind Uniradio to the
obligations set forth herein. The FCC signatory represents that he is
signing this Consent Decree in his official capacity and that he is
authorized to execute this Consent Decree.
23. 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.
_______________________________
John D. Poutasse
Acting Chief
Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
Ricardo Astiazaran
General Manager
Uniradio Corporation
________________________________
Date
47 U.S.C. S: 325(c).
Id. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 325(c).
See Letter from John D. Poutasse, Acting Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to Ricardo
Astiazaran, General Manager, Uniradio Corporation (July 25, 2011).
See 47 U.S.C. S: 325(c).
See 47 U.S.C. S: 325(d); see also 47 U.S.C. S: 309(a).
See American Broadcasting Cos., Inc., 35 FCC 2d 1, 5-6, para. 9 (1972);
see also Fox Television Stations, Inc., 77 RR 2d 132, 133, 137-38, paras.
5, 30, 33-35 (1994), vacated and remanded on other grounds, Channel 51 of
San Diego v. FCC, 79 F.3d 1187, 1188-89 (D.C. Cir. 1996), rev'd on remand,
Fox Television Stations, Inc., 11 FCC Rcd 14870, 14875-78, paras. 16-25
(1996); aff'd sub nom, Radio Television S.A. de C.V. et al. v. FCC, 130
F.3d 1078 (D.C. Cir. 1997).
See Letter from Mark C. Del Bianco, Counsel for Uniradio, to Marlene H.
Dortch, Secretary, Federal Communications Commission (Sept. 13, 2010)
(File No. 325-STA-20100913-00005).
Id. at 1.
See Permit to Deliver Programs to Foreign Broadcast Stations, Re: Actions
Taken, Public Notice, Report No. 325-00156 (Sept. 22, 2010), available at
http://licensing.fcc.gov/ibfsweb/ib.page.FetchPN? report_key=840663,
amended, Report No. 325-00159 (Oct. 13, 2010), available at
http://licensing.fcc.gov/ ibfsweb/ib.page.FetchPN?report_key=844838.
See Permit to Deliver Programs to Foreign Broadcast Stations, Re: Actions
Taken, Public Notice, Report No. 325-00160 (Nov. 2, 2010), available at
http://licensing.fcc.gov/ibfsweb/ib.page.FetchPN?report_key=849250.
See supra note 2.
See Letter from Mark C. Del Bianco, Counsel for Uniradio Corporation, to
John D. Poutasse, Acting Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (Aug. 19, 2011).
LOI Response at 1.
See, e.g., Tolling Agreement Extension, File No. EB-10-SE-145, executed by
and between John D. Poutasse, Acting Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and Ricardo
Astiazaran, General Manager, Uniradio Corporation (Dec. 13, 2011).
47 C.F.R. S: 1.16.
Debt Collection Improvement Act of 1996, Pub. L. 104-134, 110 Stat. 1321,
1358 (Apr. 26, 1996).
Federal Communications Commission DA 12-357
4
Federal Communications Commission DA 12-357