Federal Communications Commission

DA 15-1417

Before the
Federal Communications Commission
Washington, D.C. 20554
In re Application of
Optima Communications, Inc., Assignor, and
Pikes Peak Television, Inc., Assignee
For Consent to Assignment of License of
Station KRDO-FM, Security, Colorado

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NAL/Acct. No. MB-201541410033
FRN: 0009793696
Facility ID No. 50402
File No. BALH-20150423AAW

ORDER
Adopted: December 14, 2015

Released: December 15, 2015

By the Chief, Media Bureau:
1.
In this Order, we adopt the attached Consent Decree entered into by the Media Bureau
(“Bureau”), Optima Communications, Inc. (“Optima”), and Pikes Peak Television, Inc. (“Pikes Peak”).
The Consent Decree resolves issues arising from the Bureau’s review of the captioned application, as
amended,1 for Commission consent to the proposed assignment of license of Station KRDO-FM,
Security, Colorado (the “Station”) from Optima to Pikes Peak (“Application”). In particular, the Consent
Decree resolves the Bureau’s investigation of the applicants’ compliance with Section 73.35402 of the
Commission’s Rules (“Rules”) and Section 310 of the Communications Act of 1934, as amended (the
“Act”).3
2.
The Consent Decree stipulates that Optima and Pikes Peak violated Section 310 of the
Act and Section 73.3540 of the Rules. The Consent Decree also requires, among other things, that
Optima and Pikes Peak will collectively make an eight thousand dollar ($8,000) civil penalty payment to
the United States Treasury. A copy of the Consent Decree is attached hereto and incorporated by
reference.
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 investigation
of potential violations of the Rules and the Act in connection with the 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 Optima or Pikes Peak possesses the basic
qualifications to be a Commission licensee.
1

The Application was amended on June 11, 2015, to submit a copy of the Promissory Note to be executed at the
parties’ closing on the Station license.
2

47 C.F.R. § 73.3540.

3

47 U.S.C. §310.

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DA 15-1417

5.
ACCORDINGLY, IT IS ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended,4 and by the authority delegated by Sections 0.61 and 0.283 of
the Rules,5 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 Mr. Joseph B. McCoy, III, President, Optima
Communications, Inc., 2165 Geronimo Way, Las Vegas, NV 89169, and to Optima’s counsel, Marnie K.
Sarver, Esq., Wiley Rein LLP, 1776 K Street, NW, Washington, DC 50402; and to Mr. J. Timothy
Hannan, EVP and CFO of NPGCO, 825 Edmond Street, St. Joseph, MO 64501, and to Pikes Peak’s
counsel, Elizabeth E. Spainhour, Esq., Brooks Pierce McLendon, Humphrey & Leonard, LLP, 1600
Wells Fargo Capital Center, 150 Fayetteville Street, Raleigh, NC 27601.

FEDERAL COMMUNICATIONS COMMISSION

William T. Lake
Chief, Media Bureau

4

47 U.S.C. § 4(i).

5

47 C.F.R. §§ 0.61, 0.283.

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DA 15-1417

CONSENT DECREE
I.

Introduction

1.
This Consent Decree is entered into by and between the Media Bureau of the Federal
Communications Commission, Optima Communications, Inc., licensee and proposed assignor of Station
KRDO-FM, Security, Colorado (Facility ID No. 50402); and Pikes Peak Television, Inc., proposed
assignee, for the purpose of terminating the Bureau’s Investigation concerning compliance with Section
73.3540 of the Commission’s Rules, 47 C.F.R. § 73.3540, and Section 310 of the Communication Act of
1934, as amended, 47 U.S.C. § 310.
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) “Adopting Order” means the order of the Bureau adopting this Consent Decree;
(c) “Application” means the FCC Form 314 application, as amended, for
Commission consent to assign the Station license from Optima to Pikes Peak
(File No. BALH-20150423AAW);
(d) “Bureau” means the Media Bureau of the Commission;
(e) “Commission” or “FCC” means the Federal Communications Commission;
(f) “Effective Date” means the date on which the Bureau releases the Order;
(g) “Investigation” means the Bureau’s investigation of information contained in the
Application;
(h) “Licensee” or “Optima” refers to Optima Communications, Inc.;
(i) “Parties” means Optima, Pikes Peak, and the Bureau;
(j) “Pikes Peak” means Pikes Peak Television, Inc., proposed assignee of the
Station;
(k) “Rules” means the Commission’s Rules, found in Title 47 of the Code of Federal
Regulations;
(l) “Station” means Station KRDO-FM, Security, Colorado (Facility ID. No.
50402);
(m) “TBA” means the time brokerage agreement originally executed on July 30,
1992, between Optima and Pikes Peak Broadcasting Company, which on June
16, 2006, assigned its rights to Pikes Peak Radio, LLC, an affiliated corporate
entity of Pikes Peak Television, Inc., and was thereafter amended on July 18,
2012; and
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DA 15-1417

(n) “Violations” means the failure of Optima to retain complete control of Station
operations subsequent to the implementation of the TBA in violation of Section
73.3540 of the Rules and Section 310(d) of the Act.
III.

Background

3.
Time Brokerage Agreements are not precluded by any Commission rule or policy, so
long as the ownership rules are not violated and the participating licensee maintains ultimate control over
its facilities.6 The licensee maintains such control when it holds ultimate responsibility for essential
station matters such as programming, personnel, and finances.7
4.
Under the terms of the TBA as originally executed on July 30, 1992, and amended on
July 18, 2012, the executed TBA effected an unauthorized transfer of control of the Station license in
violation of Section 73.3540 of the Rules and Section 310 of the Act.8 In particular, pursuant to the TBA,
Optima improperly delegated core licensee financial responsibilities by allowing an affiliated corporate
entity of Pikes Peak to make direct payments of certain Station obligations and expenses, including a debt
owed to a third party, its site lease, and the Station’s telephone line.9
5.
On April 23, 2015, Optima and Pikes Peak jointly filed the Application which included
the TBA. In response, the Commission staff commenced its Investigation of the TBA.
6.
Because of the compliance issues raised by the TBA, the Parties have negotiated this
Consent Decree to terminate the Bureau’s Investigation.
IV.

Agreement

7.
The Parties acknowledge that any proceedings that might result from the Violations
would be time-consuming and require a substantial expenditure of public and private resources. In order
to conserve such resources, resolve the matter, and promote the Station’s compliance with the Rules, the
Parties are entering into this Consent Decree, in consideration of the mutual commitments made herein.

6

2002 Biennial Regulatory Review – Review of the Commission’s Broadcast Ownership Rules and Other Rules
Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, Report and Order and Notice of Proposed
Rule Making, 18 FCC Rcd 13620, 13743 (2003) (subsequent history omitted).
7

47 U.S.C. § 310(d); 47 C.F.R. § 73.3540(a). See also Solar Broadcasting Co., Inc., Memorandum Opinion and
Order, 17 FCC Rcd 5467, 5486 (2002) (“Although a licensee may delegate certain functions to an agent or
employee on a day-to-day basis, ultimate responsibility for essential station matters, such as personnel,
programming and finances, is nondelegable.”); Radio Moultrie, Inc., Order to Show Cause and Notice of
Opportunity for Hearing, 17 FCC Rcd 24304, 24306-07 (2002) (stating that “the Commission looks not only to who
executes the programming, personnel, and finance responsibilities, but also to who establishes the policies governing
those three areas.”); Choctaw Broadcasting Corp., Memorandum Opinion and Order, 12 FCC 8534, 8538-39 (1997)
(“[A] licensee involved in an LMA is not relieved of its responsibility to retain ultimate control.”).
8

The TBA was originally executed between Optima and Pikes Peak Broadcasting Company, which assigned its
rights under the TBA to Pikes Peak Radio, LLC, an affiliated corporate entity of Pikes Peak Television, Inc., on
June 16, 2006. See Amendment to the Time Brokerage Agreement, Attachment 17; Application, as amended on
June 11, 2015.
9

TBA at 3 ¶2, 6 ¶5, Attachment 17, Id.

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DA 15-1417

8.
The Parties agree to be legally bound by the terms and conditions of this Consent Decree.
Optima and Pikes Peak further agree that the Bureau has jurisdiction over the matters contained in this
Consent Decree and the authority to enter into and adopt this Consent Decree.
9.
The Parties agree that this Consent Decree shall become effective on the Effective Date
as defined herein. Upon the Effective Date, the Adopting Order and this Consent Decree shall have the
same force and effect as any other order of the Commission. Optima and Pikes Peak agree that each 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 either Optima or Pikes Peak
fails to satisfy any condition or Commission Rule, in the absence of Commission alteration of the
condition or Rule, Optima or Pikes Peak 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. Any violation of the Adopting Order or 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 enforcement of a Commission order.
10.
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, Optima and Pikes Peak agree to the terms,
conditions, and procedures contained herein. The Bureau further agrees that, in the absence of new
material evidence, it will not use the Violations in any action against Optima and Pikes Peak, provided
that Optima and Pikes Peak satisfy all of their obligations under this Consent Decree. In the event that
either Optima or Pikes Peak 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.
11.
Optima and Pikes Peak stipulate that each violated Section 310(d) of the Act and Section
73.3540 of the Rules by allowing Pikes Peak to assume control of the Station without prior Commission
authorization.
12.
Optima and Pikes Peak agree to collectively pay a civil penalty to the United States
Treasury in the amount of Eight Thousand Dollars ($8,000), within thirty (30) calendar days after the
Effective Date. Licensee will also send electronic notification of payment to Kim Varner at
Kim.Varner@fcc.gov and Michael Wagner at Michael.Wagner@fcc.gov on the date said payment is
made. Such payment will be made, without further protest or recourse to a trial de novo, by a check or
similar instrument, wire transfer or credit card and must include the Account Number and FRN referenced
in the caption to the Order. Regardless of the form of payment, a completed 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). Below are additional instructions that should be followed based on the form of
payment selected:


Payment by check or money order must be made payable to the order of the
Federal Communications Commission. Such payments (along with the completed Form
159) must be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank – Government Lockbox
#979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.



Payment by wire transfer must be made to ABA Number 021030004, receiving
bank TREAS/NYC, and Account Number 27000001. To complete the wire transfer and

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DA 15-1417

ensure appropriate crediting of the wired funds, a completed Form 159 must be faxed to
U.S. Bank at (314) 418-4232 on the same business day the wire transfer is initiated.


Payment by credit card must be made by providing the required credit card information
on FCC Form 159 and signing and dating the Form 159 to authorize the credit card
payment. The completed Form 159 must then be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to
U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.

13.
The Bureau finds that its Investigation raises no substantial and material questions of fact
as to whether Optima or Pikes Peak possesses the basic qualifications, including those relating to
character, to hold or obtain a Commission license or authorization. Accordingly, the Bureau agrees to
grant the Application, after the Effective Date, provided that the following conditions have been met: 1)
the civil penalty payment, referenced in paragraph 12 of this Decree, has been fully and timely satisfied;
and 2) there are no issues other than the Violations that would preclude grant of the Application.
14.
Optima and Pikes Peak each agree to waive any and all rights they may have to seek
administrative or judicial reconsideration, review, appeal, or stay, or to otherwise challenge the validity of
this Consent Decree and the Adopting Order, provided the Consent Decree is adopted without change,
addition or modification. If any 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, no Party will contest the
validity of the Consent Decree or Adopting Order, and Optima and Pikes Peak will waive any statutory
right to a trial de novo. Optima and Pikes Peak each further agree to waive any claims they may
otherwise have under the Equal Access to Justice Act, 5 U.S.C. § 504 and 47 C.F.R. §§ 1.1501 et seq.,
relating to the matters herein.
15.
The Parties agree that if a court of competent jurisdiction renders any of the provisions of
this Consent Decree invalid or unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable the Consent Decree, but rather the entire Consent Decree shall be construed as if not
containing the particular invalid or unenforceable provision or provisions, and the rights and obligations
of the Parties shall be construed and enforced accordingly. In the event that this Consent Decree in its
entirety is rendered invalid by any court of competent jurisdiction, it will become null and void and may
not be used in any manner in any legal proceeding.
16.
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 Licensee does not expressly consent), such provision will be
superseded by such Commission rule or order.
17.
Optima and Pikes Peak each agree that the provisions of this Consent Decree shall be
binding on its successors, assigns, and transferees.
18.
The Parties agree and acknowledge that this Consent Decree shall constitute a final
settlement between Optima, Pikes Peak and the Bureau concerning the Violations discussed herein.
19.
of all Parties.

This Consent Decree cannot be modified or amended without the advance written consent

20.
Each Party represents and warrants to the other Party 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

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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.
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: __________________________________

OPTIMA COMMUNICATIONS, INC.
By: _________________________________________
Joseph B. McCoy, III, President, Optima
Communications, Inc.,
Date: __________________________________

PIKES PEAK TELEVISION, INC.
By: _________________________________________
J. Timothy Hannan, EVP and CFO of NPGCO, on
behalf of Pikes Peak Television, Inc.
Date: __________________________________

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