Federal Regulatory Agencies
Federal Regulatory Agencies
News releases, reports, statements and associated documents from federal regulatory agencies ranging from the Securities Exchange Commission to the Commodities Futures Trading Commission
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SEC Issues Order Involving Samdrew VII
WASHINGTON, June 15 -- The Securities and Exchange Commission issued the following order (Admin. Proc. File No. 3-20004) involving Samdrew VII:In the Matter of SAMDREW VII, INC.
ORDER TO SHOW CAUSE
The Securities and Exchange Commission ("Commission") issued an Order Instituting Proceedings ("OIP") on September 15, 2020, against Samdrew VII, Inc. ("Respondent") pursuant to Section 12(j) of the Securities Exchange Act of 1934./1
On December 31, 2020, the Division of Enforcement filed a Declaration of Victor Tabak, which established that, pursuant to Commission Rule of Practice 141(a)(2)(ii),/2 ... Show Full Article WASHINGTON, June 15 -- The Securities and Exchange Commission issued the following order (Admin. Proc. File No. 3-20004) involving Samdrew VII: In the Matter of SAMDREW VII, INC. ORDER TO SHOW CAUSE The Securities and Exchange Commission ("Commission") issued an Order Instituting Proceedings ("OIP") on September 15, 2020, against Samdrew VII, Inc. ("Respondent") pursuant to Section 12(j) of the Securities Exchange Act of 1934./1 On December 31, 2020, the Division of Enforcement filed a Declaration of Victor Tabak, which established that, pursuant to Commission Rule of Practice 141(a)(2)(ii),/2service of the OIP was made on Respondent on September 17, 2020. On April 5, 2021, the Division filed a motion requesting that the Commission find Respondent in default for not filing an answer and that it revoke the registration of each class of its securities based on the record and the allegations in the OIP.
As stated in the OIP, Respondent's answer was required to be filed within ten days of the service of the OIP./3
As of the date of this order, Respondent has not filed an answer. Nor has Respondent filed an opposition to the Division's motion for default. The prehearing conference and hearing are thus continued indefinitely.
Accordingly, Respondent is ORDERED to SHOW CAUSE by June 28, 2021, why the registration of its securities should not be revoked by default due to its failure to file an answer, to respond to the Division's motion for default, and to otherwise defend this proceeding. When a party defaults, the allegations in the OIP will be deemed to be true and the Commission may determine the proceeding against that party upon consideration of the record without holding a public hearing.
If Respondent fails to respond to this order to show cause, it may be deemed in default, the proceeding may be determined against it, and the registration of its securities may be revoked./4
Upon review of the filings in response to this order, the Commission will either direct further proceedings by subsequent order or issue a final order resolving the matter.
The parties' attention is called to the Commission's March 18, 2020 order regarding the filing and service of papers, which provides that pending further order of the Commission parties to the extent possible shall submit all filings electronically at apfilings@sec.gov./5
Also, the Commission's Rules of Practice were recently amended to include new e-filing requirements, which took effect on April 12, 2021./6
For the Commission, by the Office of the General Counsel, pursuant to delegated authority.
Vanessa A. Countryman, Secretary
* * *
Footnotes:
1/ Samdrew VII, Inc., Exchange Act Release No. 89881, 2020 WL 5569735 (Sep. 15, 2020).
2/ 17 C.F.R. Sec. 201.141(a)(2)(ii).
3/ Samdrew VII, Inc., 2020 WL 5569735, at *2; Rules of Practice 151(a), 160(b), 220(b), 17 C.F.R. Sec.Sec. 201.151(a), 201.160(b), 201.220(b).
4/ Rules of Practice 155, 180, 17 C.F.R. Sec.Sec. 201.155, 201.180; see Samdrew VII, Inc., 2020 WL 5569735, at *2 ("If Respondent fails to file the directed Answer, . . . [it] may be deemed in default and the proceedings may be determined against it . . . .").
5/ Pending Administrative Proceedings, Exchange Act Release No. 88415, 2020 WL 1322001 (Mar. 18, 2020), https://www.sec.gov/litigation/opinions/2020/33-10767.pdf.
6/ Amendments to the Commission's Rules of Practice, Exchange Act Release No. 90442, 2020 WL 7013370 (Nov. 17, 2020), 85 Fed. Reg. 86,464, 86,474 (Dec. 30, 2020); Instructions for Electronic Filing and Service of Documents in SEC Administrative Proceedings and Technical Specifications, https://www.sec.gov/efapdocs/instructions.pdf. The amendments also impose other obligations on parties to administrative proceedings such as a new redaction and omission of sensitive personal information requirement. Amendments to the Commission's Rules of Practice, 85 Fed. Reg. at 86,465-81.
SEC Issues Order Involving Larry Feinblum
WASHINGTON, June 15 -- The Securities and Exchange Commission issued the following order (Admin. Proc. File No. 3-14407) involving Larry Feinblum:In the Matter of LARRY FEINBLUM
ORDER VACATING MUNICIPAL SECURITIES DEALER, MUNICIPAL ADVISOR, TRANSFER AGENT, AND NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION BARS
Larry Feinblum has requested that we vacate certain collateral bars that were imposed in an administrative order, dated May 31, 2011 (the "Order"), and subject to a right to reapply after two years./1
The bars were imposed based solely on conduct occurring prior to July 22, 2010, ... Show Full Article WASHINGTON, June 15 -- The Securities and Exchange Commission issued the following order (Admin. Proc. File No. 3-14407) involving Larry Feinblum: In the Matter of LARRY FEINBLUM ORDER VACATING MUNICIPAL SECURITIES DEALER, MUNICIPAL ADVISOR, TRANSFER AGENT, AND NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION BARS Larry Feinblum has requested that we vacate certain collateral bars that were imposed in an administrative order, dated May 31, 2011 (the "Order"), and subject to a right to reapply after two years./1 The bars were imposed based solely on conduct occurring prior to July 22, 2010,the effective date of the Dodd-Frank Wall Street Reform and Consumer Protection Act./2
Accordingly, in our discretion, we vacate the Order to the extent it prohibits Larry Feinblum from associating with any municipal securities dealer, municipal advisor, transfer agent, or nationally recognized statistical rating organization, subject to a right to reapply after two years, but otherwise leave the Order unmodified.
By the Commission.
Vanessa A. Countryman, Secretary
* * *
Footnotes:
1/ See Larry Feinblum, Exchange Act Release No. 64575, 2011 WL 2139878 (May 31, 2011).
2/ See Bartko v. SEC, 845 F.3d 1217, 1225 (D.C. Cir. 2017); Commission Statement Regarding Decision in Bartko v. SEC (Feb. 23, 2017), https://www.sec.gov/news/statement/commission-statement-regarding-bartko-v-sec.html.
SEC Commissioner Roisman Issues Statement on Regulatory Agenda
WASHINGTON, June 15 -- The Securities and Exchange Commission issued the following joint statement by Commissioners Elad L. Roisman and Hester M. Peirce on Chair Gary Gensler's regulatory agenda:* * *
Last Friday, the Office of Information and Regulatory Affairs released the Spring 2021 Unified Agenda of Regulatory and Deregulatory Action ("Agenda"), which includes the SEC Chair's Agenda.[1]
While there are important and timely items on the list, including rules related to transfer agents and government securities alternative trading systems, the Agenda is missing some other important rulemakings, ... Show Full Article WASHINGTON, June 15 -- The Securities and Exchange Commission issued the following joint statement by Commissioners Elad L. Roisman and Hester M. Peirce on Chair Gary Gensler's regulatory agenda: * * * Last Friday, the Office of Information and Regulatory Affairs released the Spring 2021 Unified Agenda of Regulatory and Deregulatory Action ("Agenda"), which includes the SEC Chair's Agenda.[1] While there are important and timely items on the list, including rules related to transfer agents and government securities alternative trading systems, the Agenda is missing some other important rulemakings,including rules to provide clarity for digital assets, allow companies to compensate gig workers with equity, and revisit proxy plumbing. Perhaps the absence of these rules is attributable to the regrettable decision to spend our scarce resources to undo a number of rules the Commission just adopted.
The Agenda makes clear that the Chair's recent directive to SEC staff to consider revisiting recent regulatory actions taken with respect to proxy voting advice businesses was not an isolated event, but just the opening salvo in an effort to reverse course on a series of recently completed rulemakings.[2]
On the agenda are proposals to further amend Rule 14a-8 and Rule 14a-2(b) under the Securities Exchange Act of 1934 (together, the "Proxy Updates");[3] Rule 13q-1 (the "Resource Extraction Payments Rule");[4] the rules pertaining to the accredited investor definition and the integration framework (together, the "Harmonization Rules"),[5] and our whistleblower rules.[6]
Not only are the Commission's most recent amendments to each of these rules less than a year old; they have only been effective for a range of three to seven months. As far as we can tell, the agency has received no new information which would warrant opening up any of these rules for further changes at this time. We are disappointed that the Commission would dedicate our scarce resources to rehashing newly completed rules.
The agency historically has embraced a transparent, methodical, and rigorous rulemaking process to ensure its rules reflect sound policy, transcend political differences, and thus enable our registrants to operate in a consistent, predictable regulatory regime. For all SEC rulemakings, the Commission adheres to the Administrative Procedure Act ("APA"), which celebrated its 75th anniversary on the day the Agenda was released. This years-long process generally requires publishing a rule proposal for public review and comment, reviewing and considering all comments received, and then explaining the determination to adopt or modify the proposed rule in light of those comments.
For most of the specific rulemakings that the Agenda reopens, however, the Commission and its staff undertook an even more extended and rigorous process to obtain public input. The Proxy Updates were shaped by a roundtable hosted by the SEC staff in 2018 and accompanied by a call for public comments and research.[7]
The Harmonization Rules similarly began with the Commission gathering public input through a concept release and request for public comment,[8] which informed the proposal. The Resource Extraction Payments Rule represented an even greater investment of agency time and resources--it was the Commission's third attempt at producing a rule in response to a 2010 Congressional mandate. Courts and Congress voided two prior attempts.[9]
Threading the needle to ensure compliance with the statutory mandate while steering clear of the court and congressional hurdles required thousands of hours of staff and Commission time and expertise and ingenuity of people across the agency.
A change in administration naturally brings changes in policy, and the Agenda reflects that shift in the form of new rulemakings, but reopening large swathes of work that was just completed without new evidence to warrant reopening is not normal practice. Past Commissions have generally refrained from engaging in a game of seesaw with our rulebook. The inclusion of these rules in the Agenda undermines the Commission's reputation as a steady regulatory hand. While we will keep an open mind on each proposal, it is hard to see how the Commission could change course on such complex matters before the Commission's latest actions have fully taken effect.
We hope Chair Gensler will reconsider the need to revisit freshly minted rules, but we look forward to working with him and our fellow Commissioners on other rulemaking initiatives reflected on the Agenda and on addressing issues of perennial importance such as elder investor fraud and small business capital formation.
* * *
Footnotes:
[1] Securities and Exchange Commission, Agency Rule List (Spring 2021), available at Reginfo.gov.
[2] See Commissioner Hester M. Peirce & Commissioner Elad R. Roisman, "Response to Chair Gensler's and the Division of Corporation Finance's Statements Regarding the Application of the Proxy Rules to Proxy Voting Advice" (June 1, 2021), https://www.sec.gov/news/public-statement/peirce-roisman-response-statements-application-proxy-rules-060121.
[3] See Exemptions from the Proxy Rules for Proxy Voting Advice, Rel. No. 34-89372 (July 22, 2020), https://www.sec.gov/rules/final/2020/34-89372.pdf; Procedural Requirements and Resubmission Thresholds under Exchange Act Rule 14a-8, Rel. No. 34-89964 (Sep. 23, 2020), https://www.sec.gov/rules/final/2020/34-89964.pdf.
[4] See Disclosure of Payments by Resource Extraction Issuers, Rel. No. 34-90679 (Dec. 16, 2020), https://www.sec.gov/rules/final/2020/34-90679.pdf.
[5] See Accredited Investor Definition, Rel. No. 33-10824 (Aug. 26, 2020), https://www.sec.gov/rules/final/2020/33-10824.pdf; Facilitating Capital Formation and Expanding Investment Opportunities by Improving Access to Capital in Private Markets, Rel. No. 33-10884 (Nov. 2, 2020), https://www.sec.gov/rules/final/2020/33-10884.pdf.
[6] See Whistleblower Program Rules, Rel. No. 34-89963 (Sep. 23, 2020), https://www.sec.gov/rules/final/2020/34-89963.pdf.
[7] See, e.g., Roundtable on the Proxy Process (Nov. 15, 2018), comments available at https://www.sec.gov/proxy-roundtable-2018; Proxy Voting Roundtable (Feb. 19, 2015), comments available at https://www.sec.gov/comments/4-681/4-681.shtml; Roundtable on Proxy Advisory Services (Dec. 5, 2013), comments available at https://www.sec.gov/spotlight/proxy-advisory-services.shtml; Concept Release on the U.S. Proxy System, Rel. No. 34-62495 (Jul. 14, 2010), https://www.sec.gov/rules/concept/2010/34-62495.pdf, comments available at https://www.sec.gov/comments/s7-14-10/s71410.shtml.
[8] See Concept Release on Harmonization of Securities Offering Exemptions, Rel. No. 33-10649 (Jun. 18, 2019), https://www.sec.gov/rules/concept/2019/33-10649.pdf, comments available at https://www.sec.gov/comments/s7-08-19/s70819.htm.
[9] The Commission first adopted rules in this area in 2012, as mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act"). The 2012 rules were vacated by the U.S. District Court for the District of Columbia. The Commission then adopted new rules in 2016, which were disapproved by a joint resolution of Congress pursuant to the Congressional Review Act. In 2020, the Commission adopted final rules designed to achieve the statutory objective of the Dodd-Frank Act while complying with the Congressional Review Act.
Renee Jones to Join SEC as Director of Corporation Finance
WASHINGTON, June 15 -- The Securities and Exchange Commission issued the following news release on June 14, 2021:The Securities and Exchange Commission today announced that Renee Jones has been appointed Director of the Division of Corporation Finance. John Coates, the Division's current Acting Director, has been named SEC General Counsel. Both appointments are effective June 21, 2021.
Renee Jones
Jones most recently served as Professor of Law and Associate Dean for Academic Affairs at Boston College Law School, where she taught courses in corporations, securities regulation, startup company ... Show Full Article WASHINGTON, June 15 -- The Securities and Exchange Commission issued the following news release on June 14, 2021: The Securities and Exchange Commission today announced that Renee Jones has been appointed Director of the Division of Corporation Finance. John Coates, the Division's current Acting Director, has been named SEC General Counsel. Both appointments are effective June 21, 2021. Renee Jones Jones most recently served as Professor of Law and Associate Dean for Academic Affairs at Boston College Law School, where she taught courses in corporations, securities regulation, startup companygovernance, and financial regulation. Previously, she represented private and public companies on corporate and securities matters at Hill & Barlow law firm. Jones is a member of the American Law Institute and has served as the Co-Chair of the Securities Law Committee of the Boston Bar Association. She received an undergraduate degree from Princeton University and a J.D. from Harvard University.
"Robust public disclosure has been a hallmark of effective securities regulation since the 1930s," said SEC Chair Gary Gensler. "Renee brings deep expertise in corporate governance and securities law to the Division of Corporation Finance. Her leadership will be invaluable as the Division facilitates disclosure under our current rules and undertakes rule modernization to meet the challenges of today. I am pleased to welcome Renee to the SEC and look forward to working with her."
"I am excited to join the Division of Corporation Finance's team of experienced and dedicated public servants," said Jones. "The Division plays an essential role in ensuring investors have the information they need to make informed investment decisions. I will work tirelessly to execute our rules and make sound recommendations that will help the SEC realize its mission."
John Coates
Coates has served as the SEC's Acting Director of the Division of Corporation Finance since February 2021. Before joining the SEC, he served as the John F. Cogan Professor of Law and Economics at Harvard University, where he also was Vice Dean for Finance and Strategic Initiatives. Previously, Coates was a partner at Wachtell, Lipton, Rosen & Katz, specializing in mergers and acquisitions and financial institutions. During his prior service on the SEC's Investor Advisory Committee, he chaired the Investor-as-Owner Subcommittee. Coates received his Bachelor of Arts with highest distinction from the University of Virginia and his law degree from New York University Law School.
"In only two months, I've come to rely upon John's deep expertise and judgment, traits that are essential in the role of General Counsel," said Chair Gensler. "I thank Michael Conley for his service as Acting General Counsel, and I look forward to continuing to work with Michael and John on critical matters before the Commission."
"I am honored to continue to help advance the SEC's mission to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation," said Coates. "During my tenure as Acting Director of Corporation Finance, I experienced firsthand the unwavering commitment of the SEC staff, and I look forward to serving in a new role as the Commission's General Counsel."
NRC Issues Event Notification for Advent Health Orlando
WASHINGTON, June 15 -- The Nuclear Regulatory Commission issued the following event notification (No. 55294) involving Advent Health Orlando:EN Revision Imported Date: 6/14/2021
EN Revision Text: The following was received from the Florida Department of Health via email:
"Center for Diagnostic Pathology discovered a lost source on June 3. It was a seed that was implanted in breast tissue on May 24 and removed on May 25. Two specimens with seeds were removed and one was processed in the Operating Room. The pathologist thought the seed was removed but it was discovered that a biopsy clip was ... Show Full Article WASHINGTON, June 15 -- The Nuclear Regulatory Commission issued the following event notification (No. 55294) involving Advent Health Orlando: EN Revision Imported Date: 6/14/2021 EN Revision Text: The following was received from the Florida Department of Health via email: "Center for Diagnostic Pathology discovered a lost source on June 3. It was a seed that was implanted in breast tissue on May 24 and removed on May 25. Two specimens with seeds were removed and one was processed in the Operating Room. The pathologist thought the seed was removed but it was discovered that a biopsy clip wasmistaken for the seed. The clip was sent to the lab instead and when the lab manager did the inventory on June 2, they could not find the seed. On June 3 a survey could not locate the seed. They believe the seed was left in the specimen that was frozen to be sliced by histology. They could see in the slices where the seed was, but they could not find the seed and believe it was dislodged during the slicing and collected with the rest of the waste to be incinerated by Daniels. That waste was picked up June 1. It was stated that due to the source being low energy, the exposure risk was low.
"A follow up investigation is pending."
Florida incident number: Not yet assigned.
* * * UPDATE ON 6/08/21 AT 0800 EDT FROM MATTHEW SENSION TO LLOYD DESOTELL * * *
Florida Department of Health re-sent the incident report and provided the incident number.
Florida Event Number: FL21-075
Notified R1DO (Ferdas)(email), ILTAB (email) and NMSS Event Notifications (email).
THIS MATERIAL EVENT CONTAINS A 'Less than Cat 3' LEVEL OF RADIOACTIVE MATERIAL
Sources that are "Less than IAEA Category 3 sources," are either sources that are very unlikely to cause permanent injury to individuals or contain a very small amount of radioactive material that would not cause any permanent injury. Some of these sources, such as moisture density gauges or thickness gauges that are Category 4, the amount of unshielded radioactive material, if not safely managed or securely protected, could possibly - although it is unlikely - temporarily injure someone who handled it or were otherwise in contact with it, or who were close to it for a period of many weeks. For additional information go to http://www-pub.iaea.org/MTCD/publications/PDF/Pub1227_web.pdf
Agreement State
Event Number: 55294
Rep Org: FLORIDA BUREAU OF RADIATION CONTROL
Licensee: Advent Health Orlando
Region: 1
City: Orlando
State: FL
County:
License #: 2897-1
Agreement: Y
Docket:
NRC Notified By: Farrar Stewart
HQ OPS Officer: Thomas Herrity
Notification Date: 06/07/2021
Notification Time: 17:14 [ET]
Event Date: 06/03/2021
Event Time: 00:00 [EDT]
Last Update Date: 06/08/2021
Emergency Class: Non Emergency
10 CFR Section:
Agreement State
Person (Organization):
FERDAS, MARC (R1)
ILTAB, (EMAIL)
NMSS_EVENTS_NOTIFICATION, (EMAIL)
Jury in EEOC Suit Finds That RockAuto Discriminated Against Applicant Because of His Age
MADISON, Wisconsin, June 15 -- The Equal Employment Opportunity Commission issued the following news release on June 14, 2021:A jury has determined that RockAuto, a Madison, Wis.-headquartered internet-based auto parts seller, violated federal law when it failed to hire a qualified job applicant because of his age, the U.S. Equal Employment Opportunity Commission (EEOC) announced today.
According to the EEOC's lawsuit, the applicant, Glenn McKewen, applied for a position as a supply chain manager at the company's Madison headquarters in 2016. McKewen had years of relevant experience as well ... Show Full Article MADISON, Wisconsin, June 15 -- The Equal Employment Opportunity Commission issued the following news release on June 14, 2021: A jury has determined that RockAuto, a Madison, Wis.-headquartered internet-based auto parts seller, violated federal law when it failed to hire a qualified job applicant because of his age, the U.S. Equal Employment Opportunity Commission (EEOC) announced today. According to the EEOC's lawsuit, the applicant, Glenn McKewen, applied for a position as a supply chain manager at the company's Madison headquarters in 2016. McKewen had years of relevant experience as wellas relevant bachelor's and master's degrees. RockAuto, after receiving McKewen's application, emailed him to ask in what year he received his undergraduate degree. When McKewen revealed a graduation year more than 20 years prior to his application, RockAuto rejected him the next day. RockAuto, however, passed other, significantly younger applicants who lacked McKewen's experience and credentials through its interview and hiring process, the EEOC charged.
Such alleged conduct violates the Age Discrimination in Employment Act (ADEA). The EEOC filed suit in U.S. District Court for the Western District of Wisconsin after first attempting to reach a pre-litigation settlement through its conciliation process.
After a two-day trial, the jury found in favor of the EEOC. Damages for McKewen are to be determined by the court at a later date.
"The law forbids employers from denying a job to an applicant because of his age," said Gregory Gochanour, regional attorney for the EEOC's Chicago District. "If RockAuto had given McKewen's application fair consideration, and had not rejected him because of his age, he very likely would have been hired. The jury sent a strong message to RockAuto and other employers that they may not use age as a factor when deciding whom to hire, and that if they do, they put them-selves in legal jeopardy."
The case was tried for the EEOC by Leslie Carter and Elizabeth Banaszak.
The EEOC's Chicago District is responsible for investigating charges of employment discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, North Dakota, and South Dakota, with Area Offices in Milwaukee and Minneapolis.
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.
FCC Media Bureau Issues Order on Karen L. Toole
WASHINGTON, June 15 -- The Federal Communications Commission's Media Bureau issued the following order (FRN No. 0030296222) on Karen L. Toole:In re Applications of Karen L. Toole, Personal Representative, Estate of Robert Cummings Toole, For Renewal of Licenses for Station KBCK(AM), Deer Lodge, Montana, Station KQRV(FM), Deer Lodge, Montana, and FM Translator Station K257AF, Butte, Montana
ORDER
Adopted: June 14, 2021 Released: June 14, 2021
By the Chief, Audio Division, Media Bureau:
1. In this Order, we adopt the attached Consent Decree entered into by the Media Bureau (Bureau) and Karen ... Show Full Article WASHINGTON, June 15 -- The Federal Communications Commission's Media Bureau issued the following order (FRN No. 0030296222) on Karen L. Toole: In re Applications of Karen L. Toole, Personal Representative, Estate of Robert Cummings Toole, For Renewal of Licenses for Station KBCK(AM), Deer Lodge, Montana, Station KQRV(FM), Deer Lodge, Montana, and FM Translator Station K257AF, Butte, Montana ORDER Adopted: June 14, 2021 Released: June 14, 2021 By the Chief, Audio Division, Media Bureau: 1. In this Order, we adopt the attached Consent Decree entered into by the Media Bureau (Bureau) and KarenL. Toole, Personal Representative, Estate of Robert Cummings Toole (Licensee), the licensee for Station KBCK(AM), Deer Lodge Montana; Station KQRV(FM), Deer Lodge, Montana, and FM Translator Station K257AF (Station). The Consent Decree resolves issues arising from the Bureau's review of the captioned license renewal applications (Applications) for the Stations. In particular, the Consent Decree resolves the Bureau's investigation of KCK(AM)'s and KQRV(FM)'s compliance with the Public File Rule contained in section 73.3526 of the Commission's rules (Rules)./1
The Bureau's Audio Division suspended processing of the Application because those stations did not comply with the public file obligations in section 73.3526.
2. The Bureau and Licensee have negotiated the attached Consent Decree in which Licensee stipulates that the Stations' prior licensee, Robert Toole, violated section 73.3526 of the Rules. Pursuant to the Consent Decree, Licensee agrees, among other things, to implement a comprehensive compliance plan to ensure future compliance with her online public inspection file obligations and, one year after entering into the Consent Decree, submit a compliance report to the Audio Division.
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.
4. Based on the record before us, we conclude that nothing in that record creates a substantial and material question of fact as to whether Licensee possess the basic qualifications to be a Commission licensee.
5. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 4(i), 4 (j) and 503(b) of the Communications Act of 1934, as amended,/2 and by the authority delegated by Sections 0.61 and 0.283 of the Commission's rules,/3 the Consent Decree attached hereto IS ADOPTED without change, addition or modification.
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 Karen L. Toole, 774 Eastside Road, Deer Lodge, MT 59722, and her counsel, Joseph C. Chautin, III, Hardy, Carey, Chautin & Balkin, LLP, 1080 West Causeway Approach, Mandeville, LA 70471.
FEDERAL COMMUNICATIONS COMMISSION
Albert Shuldiner, Chief, Audio Division, Media Bureau
* * *
In the Matter of Online Public Inspection Files of Karen L. Toole, Personal Representative, Estate of Robert Cummings Toole, Licensee of Station KBCK(AM), Deer Lodge, Montana, Station KQRV(FM), Deer Lodge, Montana, and FM Translator Station K257AF, Butte, Montana
CONSENT DECREE
1. The Media Bureau of the Federal Communications Commission and Karen L. Toole, Personal Representative, Estate of Robert Cummings Toole (hereafter "Licensee," as defined below), by their authorized representatives, hereby enter into this Consent Decree for the purpose of terminating the Media Bureau's investigation into the Licensee's compliance with section 73.3526 of the Commission's rules,/1 relating to the maintenance of online public inspection files. To resolve this matter, the Licensee agrees to implement a comprehensive Compliance Plan to ensure her future compliance with section 73.3526.
I. DEFINITIONS
2. 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. Sec. 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 Media Bureau of the Commission.
(d) "Commission" or "FCC" means the Federal Communications Commission and all of its bureaus and offices.
(e) "Covered Employees" means all employees and agents of the Licensee who are responsible for performing, supervising, overseeing, or managing activities related to the maintenance of online public inspection files, as required by the Online Public Inspection File Rule.
(f) "Effective Date" means the date by which both the Bureau and the Licensee have signed the Consent Decree.
(g) "Investigation" means the Bureau's decision to hold and not process the Licensee's license renewal applications identified in Appendix A due to the noncompliance with her public file obligations.
(h) "Licensee" means Karen L. Toole, Personal Representative, Estate of Robert Cummings Toole, and her affiliates, subsidiaries, predecessors-in-interest, and successors-in-interest.
(i) "Online Public Inspection File Rule" means 47 CFR Sec. 73.3526.
(j) "Parties" means the Licensee and the Bureau, each of which is a "Party."
(k) "Rules" means the Commission's regulations found in Title 47 of the Code of Federal Regulations.
(l) "Stations" means Stations KBCK(AM), Deer Lodge, Montana (Fac. Id. 670), Station KQRV(FM), Deer Lodge, Montana (Fac. Id. 79010), and FM Translator Station K257AF, Butte, Montana (Fac. Id. 69373).
II. BACKGROUND
3. Section 73.3526 requires radio station licensees to maintain an online public inspection file and to upload certain documents to the Commission's public inspection file database throughout the year. It is crucial that stations maintain online public inspection files that are complete and up to date because the information in them directly affects, among other things, the public's ability to be informed about a station's compliance with its obligations.
4. The Stations were previously licensed to Robert Toole, who passed away on November 20, 2020. Prior to his passing, he timely filed applications for renewal of radio station licenses. Those applications are identified in Appendix A. Following his passing, Licensee, his widow, filed an application to assign the stations to herself as the administrator of Robert Toole's estate, which the Bureau granted on February 1, 2021./2
As the Licensee has disclosed in amendments to the Applications, the Stations did not comply with the Online Public Inspection File Rule.
5. The radio industry is recovering from a recent dramatic reduction in sponsorship revenues which, in turn, placed the industry, including the Licensee, under significant, ongoing financial stress. The Bureau believes that the exceptional circumstances brought about by the industry's economic situation, together with the passing of Robert Toole and Licensee's ongoing administration of his estate, present a unique situation which, on balance, warrant resolution of the Bureau's investigation under the terms and conditions described below.
III. TERMS OF AGREEMENT
6. Adopting Order. The provisions of this Consent Decree shall be incorporated by the Bureau in an Adopting Order.
7. Jurisdiction. The Licensee agrees that the Bureau has jurisdiction over her and the matters contained in this Consent Decree and has the authority to enter into and adopt this Consent Decree.
8. Effective Date. The Parties agree that this Consent Decree shall become effective on the Effective Date. As of the Effective Date, the Parties agree that this Consent Decree shall have the same force and effect as any other order of the Commission.
9. 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 addition, the Bureau agrees to process the Licensee's pending radio license renewal applications identified in Appendix A in the ordinary course. In consideration for such, the Licensee agrees to the terms, conditions, and procedures contained herein.
10. The Bureau agrees that, in the absence of new material evidence, the Bureau will not use the facts developed in this Investigation through the Effective Date, or the existence of this Consent Decree, to institute, on its own motion or in response to any petition to deny or other third-party objection, any new proceeding, formal or informal, or take any action on its own motion against the Licensee 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 to set for hearing the question of the Licensee's basic qualifications to be a Commission licensee or to hold Commission licenses or authorizations./3
11. Admission of Liability. The Licensee admits for the purpose of this Consent Decree that the previous licensee of the stations, Robert Toole, failed to timely place records in its online public inspection file, in repeated violation of section 73.3526 of the Rules.
12. Pursuant to section 503(b)(2)(E) of the Act, in exercising its forfeiture authority, the Commission may consider, among other things, "any history of prior offenses" by the licensee./4
The Licensee acknowledges that the Commission or its delegated authority may consider the Licensee's admission of liability in this Consent Decree in proposing any future forfeiture against Licensee in the event the Licensee is determined to have apparently committed a violation of the Act, the Rules, or of any orders of the Commission after the Effective Date, whether related to the online public inspection file and record keeping or otherwise.
13. Compliance Officer. Within 30 calendar days after the Effective Date, the Licensee shall designate a senior manager to serve as a Compliance Officer and to discharge the duties set forth below. The Compliance Officer shall report directly to the Licensee's Chief Executive Officer (or equivalent senior officer/owner) on a regular basis, and shall be responsible for developing, implementing, and administering the Compliance Plan and ensuring that the Licensee complies with the terms and conditions of the Compliance Plan and this Consent Decree. The Compliance Officer shall have specific knowledge of the Online Public Inspection File Rule prior to assuming his/her duties. The Bureau acknowledges that the Compliance Officer, Chief Executive Officer, and/or owner may be the same individual.
14. Compliance Plan. For purposes of settling the matters set forth herein, the Licensee agrees that she shall, within 30 calendar days after the Effective Date, develop and implement a Compliance Plan designed to ensure future compliance with the Online Public Inspection File Rule, and with the terms and conditions of this Consent Decree. The Compliance Plan, with the exception of the Compliance Report described below in paragraph 14(c), shall apply to all radio stations owned by the Licensee that are required to have an Online Public Inspection File. The Compliance Plan shall contain, at a minimum, the following elements:
(a) Compliance Manual. The Compliance Plan shall include a Compliance Manual that is distributed to all Covered Employees. The Licensee may adopt a Compliance Manual that she has prepared or one that has been prepared by an outside source, such as a trade association (e.g., the National Association of Broadcasters), another licensee, or a law firm. The Compliance Manual shall:
i. thoroughly explain the requirements embodied in the Online Public Inspection File Rule;
ii. contain Operating Procedures that Covered Employees must follow to help ensure the Licensee's compliance with the Online Public Inspection File Rule. The Operating Procedures shall include internal procedures and policies specifically designed to ensure that the Licensee's stations upload all required information to their online public inspection files in a timely manner and otherwise maintain full, complete, and up to date information therein. The Operating Procedures shall also include a compliance checklist that describes the steps that a Covered Employee must follow to ensure compliance with the Online Public Inspection File Rule; and
iii. be periodically reviewed and revised as necessary to ensure that the information set forth therein remains current, complete, accurate, and effective.
(b) Compliance Training Program. If the Licensee has Covered Employees, the Compliance Plan shall include a Compliance Training Program to provide periodic training to those Covered Employees on complying with the Online Public Inspection File Rule. As part of the compliance training program, Covered Employees shall be advised of the Licensee's obligation to report any noncompliance with the Online Public Inspection File Rule and shall be instructed on how to disclose noncompliance to the Compliance Officer. All Covered Employees shall receive initial training under the compliance training program within 30 calendar days after the Effective Date, except that any person who becomes a Covered Employee at any time after such initial training is provided shall receive training under the compliance training program within 30 calendar days after the date he or she becomes a Covered Employee. The Licensee shall provide training under the compliance training plan on at least an annual basis, and she shall periodically review and revise the compliance training program as necessary to ensure that it remains current, complete, and effective.
(c) Compliance Report. One year after entering into this Consent Decree, the Licensee shall submit a compliance report to the Bureau for each station listed in Appendix A that is required to maintain an Online Public Inspection File. The compliance report shall contain a certification of the Licensee's compliance with the Online Public Inspection File Rule during the previous year. The compliance report shall be submitted to the Bureau no later than 30 days after the one-year anniversary of the Effective Date. The Bureau may, within its sole discretion, require the Licensee to submit more frequent or additional compliance reports in accordance with the terms of paragraph 15 below.
i. The compliance report shall include a certification by the Compliance Officer stating that the Compliance Officer has personal knowledge that the Licensee: (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.
ii. 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,/5 and be subscribed to as true under penalty of perjury in substantially the form set forth therein.
iii. If the Compliance Officer is unable to provide the requisite certification, the Compliance Officer shall provide the Bureau with a report detailing the noncompliance, as described below.
iv. The compliance report shall be submitted to the Audio Division staff: Alexander Sanjenis (alexander.sanjenis@fcc.gov).
15. Reporting Noncompliance. The Licensee shall, for each station she owns, report any instance of noncompliance with the Online Public Inspection File Rule, and any instance of noncompliance with any applicable terms and conditions of this Consent Decree within 10 calendar days after discovery of such noncompliance. Such reports shall include a detailed explanation of: (i) each such instance of noncompliance; (ii) the steps that the Licensee has taken or will take to remedy such noncompliance, including the schedule on which such actions will be taken; and (iii) the steps that the Licensee has taken or will take to prevent the recurrence of any such noncompliance, including the schedule on which such preventative action will be taken. All reports of noncompliance shall be submitted to the Audio Division staff: Alexander Sanjenis (alexander.sanjenis@fcc.gov).
16. Termination Date. The obligations to which the Licensee is subject pursuant to this Consent Decree shall terminate upon submission of the Compliance Report pursuant to Paragraph 14(c), provided the Bureau is satisfied that the Licensee has demonstrated substantial compliance with her obligations. If the Bureau is not satisfied that the Licensee has demonstrated substantial compliance with her obligations, the Bureau may, within its the sole discretion and authority, extend the termination date of this Consent Decree for up to an additional 24 months.
17. Further Violation(s). The Licensee acknowledges that the Bureau retains the discretion and authority to propose sanctions against the Licensee, including the issuance of notices of apparent liability for forfeitures, for any apparent willful and/or repeated violation by the Licensee of the Online Public Inspection File Rule that occurs during the term of this Consent Decree.
18. Waivers. As of the Effective Date, the Licensee waives any and all rights she 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. The Licensee 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 Consent Decree or Adopting Order, neither the Licensee nor the Commission shall contest the validity of the Consent Decree or the Adopting Order, and the Licensee shall waive any statutory right to a trial de novo. The Licensee hereby agrees to waive any claims she may have under the Equal Access to Justice Act/6 relating to the matters addressed in this Consent Decree.
19. Severability. The Parties agree that if any of the provisions of the Consent Decree shall be held unenforceable by any court of competent jurisdiction, such unenforceability shall not render unenforceable the entire Consent Decree, but rather the entire Consent Decree shall be construed as if not containing the particular unenforceable provision or provisions, and the rights and obligations of the Parties shall be construed and enforced accordingly.
20. 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.
21. Subsequent Rule or Order. The Parties agree that if any provision of this 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 the Licensee does not expressly consent) that provision will be superseded by such Rule or Order.
22. Successors and Assigns. The Licensee agrees that the provisions of this Consent Decree shall be binding on her successors, assigns, and transferees.
23. Final Settlement. The Parties agree and acknowledge that this Consent Decree shall constitute a final settlement between the Parties with respect to the Investigation.
24. Modifications. This Consent Decree cannot be modified without the advance written consent of both Parties.
25. 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.
26. Authorized Representative. Each Party represents and warrants to the other that it has full power and authority to enter into this Consent Decree. Each person signing this Consent Decree on behalf of a Party hereby represents that he or she is fully authorized by the Party to execute this Consent Decree and to bind the Party to its terms and conditions.
27. Counterparts. This Consent Decree may be signed in counterpart (including electronically or by facsimile). Each counterpart, when executed and delivered, shall be an original, and all of the counterparts together shall constitute one and the same fully executed instrument.
Albert Shuldiner, Chief, Audio Division
6/14/2021
Date
Karen L. Toole, Personal Representative,
Estate of Robert Cummings Toole
Date
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Footnotes:
1/ 47 CFR Sec. 73.3526.
2/ 47 U.S.C. Sec. 154(i), 154(j), and 503(b).
3/ 47 CFR Sec.Sec. 0.61, 0.283.
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1/ 47 CFR Sec. 73.3526.
2/ File No. 0000129820 (filed Dec. 17, 2020).
3/ See 47 CFR Sec. 1.93(b).
4/ See 47 U.S.C. Sec. 503(b)(2)(E).
5/ 47 CFR Sec. 1.16.
6/ See 5 U.S.C. Sec. 504; 47 CFR Sec.Sec. 1.1501-1.1530.