**CONSENT DECREE**

# 

1\. The Enforcement Bureau of the Federal Communications Commission
("Commission or FCC") and Fifth Avenue Broadcasting Co., Inc. ("Fifth
Avenue") hereby enter into this Consent Decree for the purpose of
terminating a forfeiture proceeding arising from an investigation of
Fifth Avenue, for alleged violations of Sections 73.1225(d)(1),
73.1350(a), 73.1690(b)(2), 73.3526(e)(1), and 73.3526(e)(12) of the
Commission's Rules ("Rules").[^1]

**BACKGROUND**

2\. On September 14, 2000, the Federal Communications Commission
received a complaint that Fifth Avenue had "...re-located its AM
transmission site *into another state* without prior Commission
authorization...". The complainant requested "...immediate Commission
action to require the termination of the unauthorized and potentially
dangerous operations of WCMI(AM)." On September 25, 2000, an FCC agent
from the FCC's Detroit, Michigan Field Office ("Field Office") monitored
Station WCMI(AM) for transmissions. The station, however, was not on the
air at the time. On September 26, 2000, the FCC agent conducted an
inspection of Station WCMI(AM), and Fifth Avenue's Stations WDGG(FM),
and WRVC-FM. The studios of these stations are co-located in Huntington,
West Virginia. As a result of the inspection, it was determined that
WCMI(AM) had been operating from an unauthorized location from
approximately August 18, 1999, until September 22, 2000. During the
inspection, the agent also determined that Fifth Avenue had violated
Sections 73.1225(d)(1), 73.1350(a), 73.1690(b)(2), 73.3526(e)(1), and
73.3526(e)(12) of the Rules.

3\. On November 20, 2000, the Field Office issued a *Notice of Violation
("NOV")* to Fifth Avenue regarding WCMI(AM). On December 4, 2000, Fifth
Avenue filed a request for an extension of time to reply to the *NOV.*
The request was granted, and on December 12, 2000, Fifth Avenue filed a
reply. On September 21, 2001, the Field Office issued to Fifth Avenue a
*Notice of Apparent Liability for Forfeiture* in the amount of \$20,000
for willful and repeated violations of Sections 73.1225(d)(1),
73.1350(a), 73.1690(b)(2), 73.3526(e)(1), and 73.3526(e)(12) of the
Rules. The noted violations involved Fifth Avenue's failure to maintain
records, failure to operate WCMI(AM) according to the terms of the
station authorization by constructing and operating from an unauthorized
location, failure to file required forms, and failure to maintain a
public inspection file.

**DEFINITIONS**

4\. For the purposes of the Consent Decree, the following definitions
shall apply:

a\. The "Commission" means the Federal Communications Commission.

b\. The "Bureau" means the Enforcement Bureau of the Commission.

c.  "Fifth Avenue" means Fifth Avenue Broadcasting Co., Inc., licensee
    of Stations

> WCMI(AM), Ashland, Kentucky, WDGG(FM), Ashland, Kentucky, and WRVC-FM,
> Catlettsburg, Kentucky.

d.  The "Order" means the Bureau's order adopting this Consent Decree.

e.  "Enforcement Proceeding" means the investigation of alleged rule
    violations by

> Fifth Avenue culminating in the *Notice of Apparent Liability for
> Forfeiture*.

f.  "*Notice of Apparent Liability For Forfeiture*" means *Fifth
    Broadcasting Co., Inc.*, File No. EB-00-DT-779, NAL/Acct. No.
    200132360003 (Enf. Bur., Detroit Office, rel. September 21, 2001).

**AGREEMENT**

5\. Fifth Avenue acknowledges and agrees that the Bureau has
jurisdiction over the matters referenced in this Consent Decree and that
the Bureau has the authority to enter into and adopt this Consent
Decree.

6\. Fifth Avenue and the Bureau agree that this Consent Decree does not
constitute an adjudication of the merits, or any finding on the facts or
law regarding any violations committed by Fifth Avenue arising out of
the Enforcement Proceeding, and that it is not to be construed as an
admission of any violation by Fifth Avenue.

7\. Fifth Avenue and the Bureau agree to the following:

> a\. Within thirty (30) days of the release date of the Order, Fifth
> Avenue will make a voluntary contribution to the United States
> Treasury by paying five (5) equal payments of Two Thousand Dollars
> (\$2,000.00) for a total of Ten Thousand Dollars (\$10,000.00). The
> first installment payment will be due thirty (30) days after the Order
> is released, with each of the four (4) subsequent payments due in
> thirty (30)-day intervals thereafter.
>
> b\. Fifth Avenue will continue to operate pursuant to its existing
> Compliance Plan which it had put in place upon learning of its
> violations to ensure that no further violations of the Commission's
> Rules will occur, with particular attention to those violations set
> forth in the *Notice of Apparent Liability for Forfeiture*. The
> Compliance Plan is administered by Fifth Avenue's President and
> General Manager, with assistance from Fifth Avenue's Operations
> Director. An outline of the Plan is set forth in Attachment A hereto.

8\. Fifth Avenue and the Bureau acknowledge and agree that this Consent
Decree will constitute a final settlement between them of the
Enforcement Proceeding.

9\. In express reliance upon the covenants and representations contained
herein, the Bureau agrees to terminate the Enforcement Proceeding at
such time as both parties sign this Consent Decree and the Bureau adopts
this Consent Decree.

10\. In consideration for the termination of the Enforcement Proceeding,
Fifth Avenue agrees to the terms, conditions, and procedures detailed in
this Consent Decree.

11\. Fifth Avenue 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 Order adopts
the Consent Decree without modification.

12\. In the event that the Commission or its delegated authority finds
that Fifth Avenue violates Sections 73.1225(d)(1), 73.1350(a),
73.1690(b)(2), 73.3526(e)(1) or 73.3526(e)(12) of the Commission's Rules
subsequent to the release of this Consent Decree and Order, Fifth Avenue
agrees that the Commission or its delegated authority may consider the
violations documented in the Enforcement Proceeding when determining an
appropriate sanction.

13\. Fifth Avenue 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 modification.

14\. Fifth Avenue and the Bureau agree that, in the event any court of
competent jurisdiction renders this Consent Decree invalid, the Consent
Decree shall become null and void and may not be used in any manner in
any legal proceeding.

15\. Fifth Avenue and the Bureau agree that, if 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
Fifth Avenue nor the Commission will contest the validity of the Consent
Decree or Order and Fifth Avenue will waive any statutory right to a
trial *de* *novo* with respect to the matter upon which the Order is
based, and shall consent to a judgment incorporating the terms of this
Consent Decree.

16\. Fifth Avenue 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.
Sections 1.1501 *et seq.*

17\. Fifth Avenue agrees that any violation of the Consent Decree or the
Order adopting this Consent Decree will constitute a separate violation
of a Commission order, entitling the Commission to exercise any rights
or remedies attendant to the enforcement of a Commission order.

18\. Any provision of this Consent Decree affected by or inconsistent
with any subsequent rule or order adopted by the Commission will be
superseded by such Commission rule or order.

19\. Fifth Avenue and the Bureau agree to be bound by the terms and
conditions stated in this Consent Decree.

20\. Fifth Avenue and the Bureau agree that the terms and conditions of
this Consent Decree shall remain in effect for a period of twenty-four
(24) months, which shall begin on the release date of the Order.

21\. This Consent Decree may be signed in counterparts.

**FEDERAL COMMUNICATIONS COMMISSION**

By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Date:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

David H. Solomon

Chief, Enforcement Bureau

**FIFTH AVENUE BROADCASTING CO., INC.**

By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Date:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Richard Michael Kirtner, President

**Attachment A**

**[OUTLINE]{.underline}**

**[FIFTH AVENUE BROADCASTING CO., INC.]{.underline}**

**[TWO-YEAR COMPLIANCE PROGRAM]{.underline}**

The primary purpose of this Compliance Program (the "Program") is to
ensure for Fifth Avenue Broadcasting Co., Inc. ("Fifth Avenue") that an
effective and meaningful procedure is in place to detect and prevent
Fifth Avenue's violation of the FCC Rules pertaining to the operation of
its radio broadcast stations, with particular attention directed to the
matters relating to the following specified FCC Rules:

· Operation and modification of station transmission facilities in
accordance with station authorizations and filing appropriate
applications for same \[Sections 73.1350(a) and 73.1690(b)(2)\].

· Maintenance of station authorizations and contour maps in appropriate
station local public inspection files \[Sections 73.3526(e)(1) and
(4)\].

· Organization and maintenance of issues/programs lists and placement in
the appropriate station local public inspection files \[Section
73.3526(e)(12)\].

· Maintenance of required records, such as, the logging of antenna
impedance measurements and maintenance of separate binders in accessible
locations at station transmitter sites and main studio locations
\[Section 73.1225(d)(1)\].

Specifically, in order to effectuate these goals, the following
procedures will be adopted: During each year of the Program's two
(2)-year period, the Kentucky Broadcasters Association ("KBA"), under
contract with Fifth Avenue, will conduct an inspection of station
operations. Fifth Avenue will forward the results of such inspections
(including reports of noncompliance) to the Director of the FCC Detroit
Field Office. Fifth Avenue will also place copies of the inspection
reports in its local public records file and copies will be retained by
Fifth Avenue's President/General Manager, Director of Operations and key
station staff personnel familiar with the KBA inspections and the FCC
Rules and procedures reviewed in those inspections.

In addition to the KBA annual inspections, Fifth Avenue will conduct its
own monthly compliance

checks to ensure that all appropriate FCC Rules, including but not
limited to those listed above, are being met. The monthly checks will
end when Fifth Avenue has completed twelve (12) consecutive monthly
checks that indicate complete compliance. For the next twelve (12)
months, and also subsequent to the two (2)-year Program, Fifth Avenue
will conduct its own checks on a random basis. Finally, Fifth Avenue
will conduct both during and after the Program period, an annual
training program for its employees to review Fifth Avenue's standards
and the FCC Rules applicable to station operations.

Fifth Avenue is committed to full and complete compliance with FCC
Rules, and in order to ensure compliance, it will incorporate this
Program into its operational practices. Ultimate responsibility for the
administration of the Program is to be held by Fifth Avenue's
President/General Manager. Responsibility for the day-to-day supervision
of the Program is to be held by Fifth Avenue's recently-named
management-level Director of Operations, and by Fifth Avenue's
consulting engineer, both of whom are to report regularly to Fifth
Avenue's President/General Manager about the results of the Program.

[^1]: 47 C.F.R. §§ 73.1225(d)(1), 73.1350(a), 73.1690(b)(2),
    73.3526(e)(1), and 73.3526(e)(12).