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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-IH-0333
FORT WAYNE PUBLIC TELEVISION, ) Acct. No. 200532080006
INC. ) FRN 0007158843
) Facility ID # 22108
Licensee of Noncommercial )
Educational Television Station )
WFWA(TV)/DT, Fort Wayne, )
Adopted: October 21, 2004 Released: October
By the Chief, Enforcement Bureau:
1. In this Order, we adopt a Consent Decree
terminating an investigation by the Enforcement Bureau
(the ``Bureau'') into the possible violation by Fort Wayne
Public Television, Inc. (``Fort Wayne''), licensee of
noncommercial educational television Station WFWA(TV)/DT,
Fort Wayne, Indiana, of section 399B of the Communications
Act of 1934, as amended,1 and section 73.621(d) of the
Commission's rules,2 in connection with the broadcast by
Fort Wayne of underwriting acknowledgments over Station
2. The Bureau and Fort Wayne have negotiated the
terms of the Consent Decree, a copy of which is attached
hereto and incorporated by reference. After reviewing the
terms of the Consent Decree and evaluating the facts
before us, we find that the public interest would be
served by approving the Consent Decree and terminating the
investigation. In the absence of material new evidence
relating to this matter, we conclude that there are no
substantial or material questions of fact as to whether
Fort Wayne possesses the basic qualifications, including
character qualifications, to be or remain a Commission
3. Accordingly, IT IS ORDERED that, pursuant to
section 4(i) of the Communications Act of 1934, as
amended,3 and the authority delegated by sections 0.111
and 0.311 of the Commission's rules,4 the attached Consent
Decree IS ADOPTED.
4. IT IS FURTHER ORDERED that the confidential
complaint dated June 23, 2003, IS DISMISSED.
5. IT IS FURTHER ORDERED that the referenced
investigation IS TERMINATED.
6. IT IS FURTHER ORDERED that copies of this Order
shall be sent by regular first class mail and certified
mail - return receipt requested, to Fort Wayne Public
Television, Inc., 2501 East Coliseum Boulevard, Fort
Wayne, Indiana 46805, and to its counsel, Richard Bodorff,
Esq., Wiley, Rein & Fielding, 1776 K Street, N.W.,
Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau CONSENT DECREE
7. The Enforcement Bureau of the Federal
Communications Commission, and Fort Wayne Public
Television, Inc., by their respective authorized
representatives, hereby enter into this Consent Decree for
the purpose of resolving and terminating the Enforcement
Bureau's investigation into possible violations of section
399B of the Communications Act of 1934, as amended, 47
U.S.C. 399b, in connection with Fort Wayne Public
Television, Inc.'s broadcast of underwriting
acknowledgments over noncommercial educational television
Station WFWA(TV)/DT, Fort Wayne, Indiana.
8. For the purposes of this Consent Decree, the
following definitions apply:
a) The ``Act'' means the Communications Act of
1934, as amended, 47 U.S.C. §§ 151 et seq.;
b) ``Adopting Order'' or ``Order'' means an
order of the Enforcement Bureau adopting this
c) The ``Bureau'' means the Enforcement Bureau
of the Federal Communications Commission;
d) The ``Commission'' or ``FCC'' means the
Federal Communications Commission;
e) ``Complaint'' means the confidential
complaint filed against Fort Wayne dated June
f) ``Effective Date'' means the date on which
the Bureau releases the Adopting Order;
g) ``Final Order'' means the status of the
Adopting Order after the period for
administrative and judicial review has lapsed;
h) ``Fort Wayne'' means Fort Wayne Public
Television, Inc., the licensee of noncommercial
educational television Station WFWA(TV)/DT, Fort
Wayne, Indiana, their parents, subsidiaries,
divisions and affiliates, and each of their
respective officers, directors, employees,
agents, representatives, or any other person
acting or purporting to act on behalf of Fort
Wayne or their successors or assigns;
i) ``Investigation'' means the investigation
of the allegations contained in the Complaint,
including the letter of investigation issued by
the Bureau to Fort Wayne on May 21, 2004;
j) ``Parties'' means Fort Wayne and the
k) ``Rules'' means the Commission's regulations set
forth in Title 47 of the Code of Federal
l) ``Underwriting Laws'' means section 399B of
the Communications Act of 1934, 47 U.S.C. §
399B, and section 73.621(d) of the Commission's
rules, 47 C.F.R. § 73.621(d).
9. The Bureau received the Complaint alleging that
Fort Wayne has broadcast certain material in violation of
the Underwriting Laws over noncommercial educational
television Station WFWA(TV)/DT. The Bureau thereafter
commenced an Investigation to determine whether Fort Wayne
may have violated section 399B of the Act and section
73.621(d) of the Commission's rules in connection with
such broadcasts. Both the Bureau and Fort Wayne
acknowledge that any proceeding that might result from the
Investigation will be time consuming and will require the
expenditure of public and private resources.
II. Terms of Settlement
10. In accordance with the terms of this Consent
Decree, the Parties agree to the following terms,
conditions, and procedures.
11. 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
an Adopting Order.
12. The Parties agree that this Consent Decree
shall become effective on the Effective Date. 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 and any violation 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
13. Fort Wayne agrees that the Bureau has
jurisdiction over the matters that are the subject of this
Consent Decree and the authority to enter into and adopt
this Consent Decree.
14. As part of the Adopting Order, the Bureau
shall terminate the Investigation and shall dismiss with
prejudice the Complaint. From and after the Effective
Date, the Bureau shall not, either on its own motion or in
response to third-party objection, initiate any inquiries,
investigations, forfeiture proceedings, hearings, or other
sanctions or actions against Fort Wayne, or Station
WFWA(TV)/DT, based in whole or in part on (i) the
Investigation, (ii) the Complaint, (iii) any other similar
complaints alleging violation by Fort Wayne of the
Underwriting Laws, with respect to any broadcast of any of
the announcements specified in the Complaint occurring
prior to the Effective Date, or (iv) the allegations
contained in any of the foregoing. The Bureau agrees
that, in the absence of material new evidence, it will
not, on its own motion, initiate or recommend to the
Commission, any new proceeding, formal or informal,
regarding the matters discussed in paragraph 3, above,
with regard to broadcasts prior to the Effective Date. The
Bureau further agrees that, in the absence of material new
evidence, it will not use the facts developed in this
Investigation prior to the Effective Date to initiate on
its own motion, or recommend to the Commission, any
proceeding, formal or informal, or take any action on its
own motion against Fort Wayne with respect to its basic
qualifications to be or remain a Commission licensee.
Nothing in this Consent Decree shall prevent the Bureau
from instituting, or recommending to the Commission, new
investigations or enforcement proceedings against Fort
Wayne, in the event of any alleged future misconduct for
violation of this Consent Decree or for violation of the
Act or the Commission's rules, consistent with the
provisions of this Consent Decree.
15. Fort Wayne admits, solely for the purpose of
this Consent Decree and for FCC civil enforcement
purposes, and in express reliance on the provisions of
Paragraph 8 hereof, that the underwriting announcements at
issue in the Investigation (other than the announcements
aired with respect to AquaTek and the not-for-profit
enterprises) are in violation of the Underwriting Laws.
Notwithstanding any other provision of this Consent
Decree, it is expressly agreed and understood that if this
Consent Decree is breached by the Bureau, or is
invalidated or modified to Fort Wayne's prejudice by the
Commission or by any court, then the provisions of the
immediately-preceding sentence shall be of no force or
effect whatever, and Fort Wayne shall not, by virtue of
that sentence or any other provision of this Consent
Decree, be deemed to have made any admission concerning
any announcements broadcast on Station WFWA(TV)/DT.
16. The Parties agree and acknowledge that this
Consent Decree shall constitute a final settlement between
them concerning the Bureau's Investigation of the matters
discussed in paragraph 3, above.
17. In consideration of the Bureau's termination
of its Investigation into these matters, Fort Wayne agrees
to the terms set forth herein.
18. Fort Wayne agrees that it will make a
voluntary contribution to the United States Treasury in
the amount of $1,000.00 within five (5) calendar days
after the Effective Date of the Adopting Order. The
payment must be made by check or similar instrument,
payable to the order of the Federal Communications
Commission. The payment must include the Acct. No. and
FRN referenced above. Payment by check or money order may
be mailed to Forfeiture Collection Section, Finance
Branch, Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th
Floor Mailroom, Chicago, IL 60661. Payment by wire
transfer may be made to ABA Number 071000013, receiving
bank Bank One, and account number 1165259.
19. As a further condition to this agreement,
Fort Wayne will institute and follow the terms of the
Compliance Plan identified in the Attachment to this
Consent Decree within thirty (30) days of the Effective
20. Fort Wayne agrees that it is required to
comply with each individual condition of this Consent
Decree. Each specific condition is a separate condition
of the Consent Decree as approved. To the extent that
Fort Wayne fails to satisfy any condition, in the absence
of Commission alteration of the condition, it will be
deemed noncompliant and may be subject to possible
enforcement action, including, but not limited to,
revocation of the relief, designation of the matter for
hearing, letters of admonishment, or forfeitures.
21. Fort Wayne 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 Adopting Order adopts the
Consent Decree without change, addition or modification
adverse to Fort Wayne.
22. Fort Wayne agrees to waive any claims it 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 discussed in this Consent Decree.
23. If any Party (or the United States on behalf
of the FCC) brings a judicial action to enforce the terms
of the Adopting Order, Fort Wayne and the FCC shall not
contest the continuing validity of the Consent Decree or
24. In the event that this Consent Decree is
rendered invalid by any court of competent jurisdiction,
this Consent Decree shall become null and void and may not
be used in any manner in any legal proceeding.
25. This Consent Decree may be signed in
For the Enforcement Bureau
David H. Solomon Date
Chief, Enforcement Bureau
For Fort Wayne Public Television, Inc.
Roger Rhodes Date
President and General Manager
1. Fort Wayne has established and will maintain a
multi-level review procedure for underwriting content
to be aired on Station WFWA(TV)/DT. All scripts of
announcements will be reviewed, prior to broadcast, for
compliance with FCC underwriting rules and regulations
by: (i) the Marketing/Underwriting Manager, (ii)
Operations Division Manager, (iii) the producer of the
announcement, and (iv) if there is uncertainty as to
the legality of such announcement, then the General
Manager and/or outside communications counsel.
2. Fort Wayne has and will conduct training on
acceptable underwriting content for all station general
management and staff responsible for underwriting
content with PBS staff and communications attorneys.
To augment this training, outside counsel conducted an
on-site training session for the foregoing stations'
staff and management with respect to practical
application of the underwriting content standards and
guidelines. Outside counsel, or other comparable
professionals, will conduct a second on-site workshop
in the fall of 2004 or early 2005. The station will
videotape this workshop and use it as refresher
training for staff and management at least every twelve
(12) months, include it as a mandatory part of
underwriting sales executive training, and use it to
train any new station employees involved in
underwriting promptly after they commence their duties.
3. Fort Wayne has also implemented and will maintain
a plan to proactively educate prospective underwriting
clients about appropriate underwriting content. To
that end, underwriting account executives are and will
be required to provide an overview of underwriting
announcement guidelines to prospective clients before
contracts are accepted.
1 47 U.S.C. § 399b.
2 47 C.F.R. § 73.621.
3 47 U.S.C. § 154(i).
4 47 C.F.R. §§ 0.111, 0.311.