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Before the
                Federal Communications Commission
                     Washington, D.C. 20554




In the Matter of                 )
                                )
Channel 51 of San Diego, Inc.    )    File No. EB-04-TC-067
Licensee of KUSI-TV              )    Facility ID No. 10238
San Diego, CA                    )    NAL/Acct. No. 200532170007 
                                )    FRN: 0002965655
                                )
Apparent Liability for           )
Forfeiture                       )


               NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  February 22, 2005          Released:  February 23, 
2005                                    

By the Chief, Enforcement Bureau:

I.     INTRODUCTION

     1.     In this Notice of Apparent Liability for Forfeiture 
(``NAL''),1 we find that Channel 51 of San Diego, Inc. 
(``Channel 51'') apparently willfully or repeatedly violated 
section 713 of the Communications Act of 1934, as amended (the 
``Act''),2 and section 79.2(b)(1)(i) of the Commission's rules.3  
Channel 51 apparently violated the Act and the Commission's 
rules by failing in a timely manner to make accessible to 
persons with hearing disabilities emergency information that it 
provided aurally in its programming for KUSI-TV during a 
wildfires emergency in the San Diego, California area on October 
26 and October 27, 2003.  Based upon our review of the facts and 
circumstances, we find Channel 51 apparently liable for a 
forfeiture in the amount of $25,000. 

II.  BACKGROUND

     2.   Channel 51 is the licensee of KUSI-TV4  and is a video 
programming distributor as defined in our rules.5  As a video 
programming distributor, Channel 51 is obligated to provide to 
persons with hearing disabilities the same access to emergency 
information that it provides to listeners of its programming.6 

     3.   During the week beginning October 26, 2003, there were 
wildfires throughout Southern California, including the San Diego 
area.  These wildfires caused loss of life, injuries, and 
extensive damage to property and natural resources.  Due to high 
winds, these fires spread extremely rapidly, and caused the 
evacuation of many of San Diego's residents.  During this time, 
Channel 51 broadcast emergency information regarding the 
wildfires.   

     4.     After receiving a consumer complaint against KUSI-TV 
alleging that the station failed to make information on the 
wildfires accessible to persons with hearing disabilities, the 
Enforcement Bureau (``Bureau'') launched an investigation into 
Channel 51's broadcasts on KUSI-TV that week.  We sent a Letter 
of Inquiry to Channel 51, directing Channel 51 to provide, among 
other things, videotapes of Channel 51's coverage of the 
wildfires on KUSI-TV.7  Channel 51 filed a response8 and 
subsequently provided videotapes of its coverage. 
 
     5.     The Bureau has reviewed Channel 51's tapes of KUSI-
TV's programming and identified numerous instances where the 
station aurally provided emergency information but substantially 
delayed the visual presentation of emergency information, if it 
provided the visual presentation at all.  Some illustrative 
examples are shown below.9  

          (a)  At 6:58 a.m.10 and during the next seven minutes, 
     reporter Dave Ericson said that Route 67 was closed, the 
     anchor said that Wildcat Canyon Road was closed, and a 
     representative of the San Diego County Sheriff's department 
     said that there were evacuations at Moreno Valley and 
     Eucalyptus Hills.   Channel 51 did not provide closed 
     captioning or other visual presentation of any portion of 
     this emergency information until approximately 10:38 a.m., 
     when it provided visual presentation of some of the 
     emergency information.11  The recorded footage that Channel 
     51 provided of its broadcast does not show any visual 
     presentation of the remainder of this emergency information 
     through at least 12:17 p.m.,12 over five hours after the 
     aural presentation.  
                 (b)     At approximately 8:14 a.m., reporter 
     Dave Scott said that Scripps Poway Parkway was closed.  
     Channel 51 did not provide closed captioning or other visual 
     presentation of this emergency information through at least 
     12:17 p.m., over four hours later.  

       (c)     At approximately 9:12 a.m., the anchor said that 
     there was an evacuation center at Santana High School.  
     Channel 51 did not provide closed captioning or other visual 
     presentation of this emergency information through at least 
     12:17 p.m., over three hours later.  
          
       (d)     At approximately 9:38 a.m., the anchor said that 
     Routes 67, I-15, and 163, Wildcat Canyon Road, Cole Grace 
     Road, Lake Wohlford Road, and Scripps Poway Parkway were 
     closed.  Channel 51 did not provide closed captioning or 
     other visual presentation of any portion of this emergency 
     information until 10:38 a.m., one hour later, at which time 
     it provided visual presentation for some of the emergency 
     information, and did not provide visual presentation of the 
     remainder of the emergency information through at least 
     12:17 p.m., over two hours later.  

       (e)     At approximately 11:15 a.m. and during the next 
     five minutes, the anchor said that there were evacuations at 
     Santo Road, Portobello Drive and Antigua Boulevard in 
     Tierrasanta to the Qualcomm Stadium parking lot, and 
     Councilman Mainschein said that there were evacuations from 
     Scripps Ranch to Mira Mesa High School.  Channel 51 did not 
     provide closed captioning or other visual presentation of 
     this emergency information through at least 12:17 p.m., over 
     an hour later.  

III.        DISCUSSION

     6.     Section 713 of the Act requires the Commission to 
prescribe rules on Video Programming Accessibility.13  Pursuant 
to section 713, and out of a concern that the same critical 
emergency information be available to every television viewer, 
including persons with hearing disabilities, the Commission 
adopted section 79.2 of the rules.14  Section 79.2(b)(1)(i) 
requires that video programming distributors providing emergency 
information in the audio portion of programming ``must'' provide 
persons with hearing disabilities with the same access to such 
information that distributors provide to listeners, either 
through a method of closed captioning or by using another method 
of visual presentation.15  Section 79.2 does not require closed 
captioning,16 but allows for other methods of visual 
presentation, including, but not limited to, open captioning, 
crawls, or scrolls.17  In addition, other methods of visual 
presentation could include maps, signs, and charts, each of which 
can communicate emergency information to those with hearing 
disabilities.  The Commission stated that it was permitting these 
alternatives because it was concerned about the limited ``real-
time'' captioning resources available and their current costs.18  
The Commission made clear, however, that regardless of the method 
of visual presentation used, video programming distributors must 
``use [a] method of visual presentation [that] ensure[s] the same 
accessibility [to emergency information] for persons with hearing 
disabilities as for any other viewer, as required by the 
rule.''19  The Commission mandated equal accessibility because 
emergency information is of ``equal or greater importance to 
persons with hearing disabilities, and television plays a 
critical role in its dissemination.'' 20  Further, it is clear 
from the Commission's definition of emergency information, i.e., 
information about a ``current'' emergency that provides critical 
details concerning ``how to respond to the emergency,''21 that 
the Commission required video programming distributors to display 
emergency information in a timely manner so that viewers can 
respond to a current emergency before becoming endangered.  Thus, 
although the Commission declined to require video programming 
distributors to close caption emergency information they provide 
aurally, the Commission did require video programming 
distributors to visually present by some method in real-time the 
emergency information they provide aurally.
 
     7.     Further, the Commission defined emergency information 
in section 79.2 as ``information, about a current emergency, that 
is intended to further the protection of life, health, safety, 
and property, i.e., critical details regarding the emergency and 
how to respond to the emergency,''22 not merely the existence of 
an emergency.23  The rule provides the following non-exhaustive 
list of examples of the types of emergencies covered:  
``tornadoes, hurricanes, floods, tidal waves, earthquakes, icing 
conditions, heavy snows, widespread fires, discharge of toxic 
gases, widespread power failures, industrial explosions, civil 
disorders, school closings and changes in school bus schedules 
resulting from such conditions, and warnings and watches of 
impending changes in weather.''24  The Commission further stated 
that critical details included, among other things, ``specific 
details regarding the areas that will be affected by the 
emergency, evacuation orders, detailed descriptions of areas to 
be evacuated, specific evacuation routes, approved shelters or 
the way to take shelter in one's home, instructions on how to 
secure personal property, road closures, and how to obtain relief 
assistance.''25  The Commission has several times reminded video 
programmers of their obligation to make emergency information 
accessible.26

     8.     As an initial matter, we find that Channel 51 is a 
``video programming distributor'' subject to section 79.2 of the 
Commission's rules.  Section 79.1(a)(2) defines a video 
programming distributor as ``[a]ny television broadcast station 
licensed by the Commission....''27  As a broadcast licensee, 
Channel 51 must comply with the Commission's rules regarding the 
accessibility of emergency information to individuals with 
hearing disabilities.

     9.     We now turn to an analysis of the information 
broadcast by Channel 51 over KUSI-TV during the time period at 
issue.  We note at the outset that the October 26 and October 27 
wildfires caused loss of life, injuries, and extensive damage to 
property and natural resources in the City of San Diego, San 
Diego County, and other areas of Southern California.28  The 
fires spread rapidly via high winds causing city and county 
officials to emphasize repeatedly that residents should evacuate 
immediately when they were told to do so and that they should pay 
attention to the information provided by television stations.29  
Police gave evacuation orders in certain areas over bullhorns; it 
was therefore especially important for persons with hearing 
disabilities, who might not be able to hear the bullhorns, to 
have timely warnings to evacuate provided visually on television.   
Channel 51's own coverage of the fires illustrates the urgency 
and danger of the situation.  Channel 51 interrupted regular 
programming with full coverage of the wildfires.  Channel 51 
anchors and reporters repeated emergency information many times, 
emphasizing the number of persons injured, acres burned, and 
houses destroyed.  Channel 51 personnel characterized the fires 
as ``hell on earth'' and ``out of control,'' and noted that 
police cars were fleeing from the dangerous areas.  While Channel 
51 visually presented some information during this period, it 
appears that in numerous instances Channel 51 did not make 
critical information available to persons with hearing 
disabilities.  

     10.   The record shows that, in 22 separate instances from 
approximately 6:58 a.m. on October 26 to 8:41 p.m. on October 27, 
Channel 51 aurally provided critical emergency information on 
areas to be evacuated, road closures, shelters and the way to 
take shelter in one's home, but provided visual presentation of 
this information, if at all, only after a substantial delay of at 
least 30 minutes.  The examples provided above at Paragraph 5 are 
illustrative.  The information in question concerning 
evacuations, road closures, shelters, and the way to take shelter 
in one's home falls squarely within the Commission's definition 
of ``emergency information'' because it is ``[i]nformation, about 
a current emergency, that is intended to further the protection 
of life, health, safety, and property, i.e., critical details 
regarding the emergency and how to respond to the emergency.''30  
Indeed, the Commission offered these categories of information as 
examples of critical details covered by the rule.31   In 
addition, the Commission offered widespread fires as an example 
of an emergency covered by the Commission's rules.32               

     11.      As set forth above, video programming distributors 
are obligated to provide viewers with hearing disabilities with 
the ``same accessibility'' to emergency information as they 
provide to other viewers.  Here, it is apparent that in numerous 
instances Channel 51 delayed the visual presentation of emergency 
information, thereby failing to provide persons with hearing 
disabilities the same access to emergency information that it 
provided to other viewers and apparently violating section 79.2 
of our rules.  We recognize that real-time closed captioning is 
not always available to broadcasters, and that creating visual 
information, in certain circumstances, may take some very short 
period of time.  We emphasize, however, that any visual 
presentation of emergency information must be simultaneous or 
nearly simultaneous to the aural emergency information to provide 
the ``same accessibility'' to emergency information to persons 
with hearing disabilities.  Nonetheless, as a matter of 
convenience in order to preserve our resources, we have exercised 
our discretion here to propose a forfeiture for only those 
apparent violations where Channel 51 provided closed captioning 
or other visual presentation of emergency information, if at all, 
after a delay of greater than 30 minutes after Channel 51 
provided the same information aurally (i.e., those listed in the 
text and in Appendix A).  It is clear from these examples that 
Channel 51's apparent violations left persons with hearing 
disabilities without the same critical information the station 
gave to its listening audience.  We note that our conclusions 
here are based on the specific facts and circumstances presented.  
We might reach different determinations regarding which apparent 
violations to include in an NAL based on a different record.  For 
example, we might find it more appropriate in other circumstances 
and based on different facts to propose a forfeiture for those 
apparent violations where a video programming distributor 
provides visual presentation of emergency information in less 
than 30 minutes after it has provided aural information.  

     12.     In response to the Bureau's Letter of Inquiry, 
Channel 51 argues that the extent and amount of programming to be 
made accessible to the hearing impaired was explicitly left to 
the licensee's good faith judgment by the Second Report and 
Order.33  Channel 51 contends that the Commission's statement in 
the Second Report and Order that ``[i]n determining whether 
particular details need to be made accessible, we will permit 
programmers to rely on their own good faith judgments''34 gives 
it unchecked latitude to determine where and when emergency 
information should be presented visually.  We disagree.  The 
language of section 79.2(b)(1)(i) is unequivocal: ``[e]mergency 
information that is provided in the audio portion of the 
programming must be made accessible....''35  While the order 
allows video programming distributors to exercise their good 
faith judgment in determining which ``particular details'' to 
broadcast, nothing in the order suggests that video programming 
distributors may rely on this limited exception to excuse a 
complete failure to visually present in a timely fashion 
categories of critical information that are clearly covered by 
the rule.  It is not even remotely plausible to suggest that 
programmers may refuse to present such basic, critical 
information in a wildfire emergency as evacuations, road 
closures, shelters, and shelter-at-home advice.  Such an 
expansive interpretation of the good faith exception would 
swallow the rule and render it wholly ineffective. 

     13.     We conclude, therefore, that Channel 51 gave aural 
emergency information on KUSI-TV 22 separate times on October 26 
and October 27, 2003, but apparently did not provide the same 
access to the information to persons with hearing disabilities by 
using a method of closed captioning or a method of visual 
presentation.  Thus, Channel 51 apparently violated section 
79.2(b)(1)(i) of the Commission's rules.  

IV.      FORFEITURE AMOUNT

     14.     For the time at issue in this case, section 
503(b)(2)(A) of the Communications Act authorized the Commission 
to assess a forfeiture of up to $27,500 for each violation of the 
Act or of any rule, regulation, or order issued by the Commission 
under the Act.36  In exercising such authority, we are required 
to take into account "the nature, circumstances, extent, and 
gravity of the violation and, with respect to the violator, the 
degree of culpability, any history of prior offenses, ability to 
pay, and such other matters as justice may require."37  Based on 
our review of the record, we conclude that Channel 51 is 
apparently liable for the willful or repeated violation of our 
rules.

     15.     The Commission's forfeiture guidelines do not 
currently establish a base forfeiture amount for violations of 
section 79.2(b)(1)(i).  Enforcement of the emergency 
accessibility rules is important as lives may depend on 
compliance.  We find that $8,000, the base forfeiture amount for 
violations of rules relating to distress and safety frequencies 
and for failure to install and operate Emergency Alert System 
(``EAS'') equipment is analogous and warranted for apparent 
violations of section 79.2(b)(1)(i).38   The purpose of the EAS 
and safety frequencies rules are to warn persons of emergencies, 
and the purpose of section 79.2(b)(1)(i) is the same.  Channel 51 
provided aural emergency information without providing visual 
presentation on numerous occasions, resulting in 22 apparent 
violations of the rule for which we propose a forfeiture.  While 
we believe that a $8,000 base forfeiture amount for violations of 
section 79.2(b)(1)(i) is appropriate generally, a strict 
application to all 22 apparent violations here would result in a 
total proposed forfeiture that is excessive in light of the 
circumstances presented.  We therefore propose a forfeiture of 
$25,000.  Channel 51 will have the opportunity to submit further 
evidence and arguments in response to this NAL to show that no 
forfeiture should be imposed or that some lesser amount should be 
assessed.39 
 
V.   CONCLUSIONS AND ORDERING CLAUSES

     16.     We have determined that Channel 51 of San Diego, 
Inc. has apparently willfully or repeatedly violated section 713 
of the Act and section 79.2(b)(1)(i) of the Commission's rules by 
failing to make emergency information that it provided to hearing 
people accessible to persons with hearing disabilities, resulting 
in a proposed forfeiture of $25,000.

     17.     Accordingly, IT IS ORDERED, pursuant to section 
503(b) of Communications Act of 1934, as amended, 47 U.S.C.  
503(b), and section 1.80 of the Commission's rules, 47 C.F.R.  
1.80, that Channel 51 of San Diego, Inc. IS HEREBY NOTIFIED of an 
Apparent Liability for Forfeiture in the amount of $25,000 for 
willful and repeated violations of section 713 of the Act, 47 
U.S.C.  613, and section 79.2(b)(1)(i) of the Commission's 
rules, 47 C.F.R.  79.2(b)(1)(i), as described in the paragraphs 
above and contained in Appendix A. 

     18.     IT IS FURTHER ORDERED, pursuant to section 1.80 of 
the Commission's rules, 47 C.F.R.  1.80, that within thirty (30) 
days of the release of this Notice, Channel 51 of San Diego, Inc.  
SHALL PAY the full amount of the proposed forfeiture OR SHALL 
FILE a response showing why the proposed forfeiture should not be 
imposed or should be reduced.40  

     19.     IT IS FURTHER ORDERED that payment of the forfeiture 
amount should be made by check or similar instrument, payable to 
the order of the Federal Communications Commission.  The payment 
must include the NAL/Acct.No. and FRN No. referenced above.  
Payment by check or money order must be mailed to Forfeiture 
Collection Section, Finance Branch, Federal Communications 
Commission, P.O. Box. 73482, Chicago, IL 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 One, and 
account number 1165259.

     20.     The Bureau will not consider reducing or canceling a 
forfeiture in response to a claim of inability to pay unless the 
petitioner submits: (1) federal tax returns for the most recent 
three-year period; (2) financial statements prepared according to 
generally accepted accounting practices (``GAAP''); or (3) some 
other reliable and objective documentation that accurately 
reflects the petitioner's current financial status.  Any claim of 
inability to pay must specifically identify the basis for the 
claim by reference to the financial documentation submitted.

     21.     Requests for payment of the full amount of this 
Notice of Apparent Liability under an installment plan should be 
sent to: Chief, Revenue and Receivables Operations Group, 445 
12th Street, S.W., Washington, D.C., 20554.41

     22.     IT IS FURTHER ORDERED that copies of this Notice of 
Apparent Liability for Forfeiture SHALL BE SENT by certified mail 
to Robert B. Jacobi, Esq. Cohn & Marks, Suite 300, 1920 N Street, 
N.W., Washington, D.C. 20036-1622, and Michael Dean McKinnon, 
Vice President, Broadcast Operations and     Programming, Channel 
51 of San Diego, Inc., 4575 Viewridge Avenue, San Diego, CA 
92123.


               
                         FEDERAL COMMUNICATIONS COMMISSION



                         David H. Solomon
                         Chief, Enforcement Bureau
                              APPENDIX  A


     (1)  At 6:58 a.m. and during the next seven minutes, 
     reporter Dave Ericson said that Route 67 was closed, the 
     anchor said that Wildcat Canyon Road was closed, and a 
     representative of the San Diego County Sheriff's department 
     said that there were evacuations at Moreno Valley and 
     Eucalyptus Hills.   Channel 51 did not provide closed 
     captioning or other visual presentation of any portion of 
     this emergency information until approximately 10:38 a.m., 
     when it provided visual presentation of some of the 
     emergency information, and did not provide visual 
     presentation of the remainder of the emergency information 
     through at least 12:17 p.m.42     
     (2)  At approximately 8:14 a.m., reporter Dave Scott said 
     that Scripps Poway Parkway was closed.  Channel 51 did not 
     provide closed captioning or other visual presentation of 
     this emergency information through at least 12:17 p.m.  

     (3)  At approximately 9:12 a.m., the anchor said that there 
     was an evacuation center at Santana High School.  Channel 51 
     did not provide closed captioning or other visual 
     presentation of this emergency information through at least 
     12:17 p.m.  
          
     (4)  At approximately 9:38 a.m., the anchor said that Routes 
     67, I-15, and 163, Wildcat Canyon Road, Cole Grace Road, 
     Lake Wohlford Road, and Scripps Poway Parkway were closed.  
     Channel 51 did not provide closed captioning or other visual 
     presentation of any portion of this emergency information 
     until 10:38 a.m., one hour later, at which time it provided 
     visual presentation of some of the emergency information, 
     and did not provide visual presentation of the remainder of 
     the emergency information through at least 12:17 p.m.  

      (5) At approximately 11:15 a.m. and during the next five 
     minutes, the anchor said that there were evacuations at 
     Santo Road, Portobello Drive and Antigua Boulevard in 
     Tierrasanta to the Qualcomm Stadium parking lot, and 
     Councilman Mainschein said that there were evacuations from 
     Scripps Ranch to Mira Mesa High School.  Channel 51 did not 
     provide closed captioning or other visual presentation of 
     this emergency information through at least 12:17 p.m. 

             (6)    At approximately 11:37 a.m.,43 the anchor 
     said that there were evacuations at Santo Road, Portobello 
     Drive and Antigua Boulevard in Tierrasanta.  Channel 51 did 
     not provide closed captioning or other visual presentation 
     of this emergency information through at least 12:17 p.m.  

             (7)    At approximately 3:18 p.m., reporter John 
     Soderman said that Route 163 was closed because of an 
     airplane crash.  Channel 51 did not provide closed 
     captioning or other visual presentation of this emergency 
     information until approximately 5:07 p.m.

             (8)    At approximately 3:41 p.m., the anchor said 
     that there were evacuations at Hidden Trails Road, Rancho 
     San Pasqual and Cloverdale in Escondido.  Channel 51 did not 
     provide closed captioning or other visual presentation of 
     this emergency information until approximately 10:21 p.m.

             (9)    At approximately 4:00 p.m., reporter Lina 
     Lewis said that there were evacuations on Mission Gorge 
     Road.  Channel 51 did not provide closed captioning or other 
     visual presentation of this emergency information until 
     approximately 5:00 p.m.

             (10)   At approximately 5:12 p.m., the San Diego 
     Chief of Police said there was a shelter at Mission Hills 
     High School.  Channel 51 did not provide closed captioning 
     or other visual presentation of this emergency information 
     through at least 12:11 a.m. the following day.  

             (11)   At approximately 6:26 p.m., the anchor said 
     that there were evacuations in Chula Vista, Valley Center, 
     Scripps Ranch and Ramona, and that there were shelters at 
     Bonita Vista High School, St. Peter's Church, Mira Mesa High 
     School, Poway Community Center, and Julian High School.  
     Channel 51 did not provide closed captioning or other visual 
     presentation of any portion of this emergency information 
     until 7:27 p.m., when it provided visual presentation of 
     some of the emergency information, and did not provide 
     visual presentation of the remainder of this emergency 
     information through at least 12:11 a.m. the following day.  

             (12)   At approximately 6:35 p.m., the anchor said 
     there were evacuations at Mission Gorge Road.  Channel 51 
     did not provide closed captioning or other visual 
     presentation of this emergency information until 
     approximately 7:27 p.m.  

             (13)   At approximately 7:30 p.m. and during the 
     next five minutes, reporter Don Curley and the anchor said 
     there was a shelter at Qualcomm Stadium.  Channel 51 did not 
     provide closed captioning or other visual presentation of 
     this emergency information until approximately 8:31 p.m.

             (14)   At approximately 9:54 p.m., the anchor said 
     that Routes I-8, I-15, 52, 163, 94, and 67 were closed.  
     Channel 51 did not provide closed captioning or other visual 
     presentation of any portion of this emergency information 
     until 10:43 p.m., when it provided visual presentation of 
     some of the emergency information, and did not provide 
     visual presentation of the remainder of this information 
     through at least 12:11 a.m. the following day.  

             (15)   At 10:25 a.m.,44 reporter Steve Bosch advised 
     viewers to protect themselves from air pollution by staying 
     indoors, avoiding strenuous activity, and breathing through 
     a damp cloth.  Channel 51 did not provide closed captioning 
     or other visual presentation of this emergency information 
     through at least 12:43 p.m.  

             (16)   At 10:46 a.m., Dr. Mark Pian advised viewers 
     to protect their children from air pollution by keeping them 
     inside, having them participate in quiet activities to avoid 
     breathing, and making sure they take their medications.  
     Channel 51 did not provide closed captioning or other visual 
     presentation of this emergency information through at least 
     12:43 p.m.  

               (17) At 11:13 a.m., a representative of the 
     American Lung Association advised viewers to stay inside, 
     avoid exercise, use an air conditioner, and replace their 
     filter.  Channel 51 did not provide closed captioning or 
     other visual presentation of this emergency information 
     through at least 12:43 p.m.  

             (18)   At approximately 5:15 p.m. and within five 
     minutes thereafter, the Sheriff of San Diego County said 
     that there were evacuations in Julian, Ramona, Rancho Jamul, 
     Eucalyptus Hills, Valley Center, Lake Wohlford, Oakdale, and 
     Rincon Reservation, and the County Supervisor told residents 
     of East County, Crest, Shadow Mountain, and Blossom Valley 
     to boil or disinfect their water.  Channel 51 did not 
     provide closed captioning or other visual presentation of 
     this emergency information through at least 7:30 p.m.  

             (19)   At approximately 5:38 p.m., the anchor said 
     there were evacuations in Ramona, Julian, Rincon 
     Reservation, Valley Center, and San Diego Country Estates.  
     Channel 51 did not provide closed captioning or other visual 
     presentation of this emergency information through at least 
     7:30 p.m.  

             (20)   At approximately 6:04 p.m., the anchor said 
     that those sheltered at Qualcomm Stadium should go to Balboa 
     Park and YMCA shelters.  Channel 51 did not provide closed 
     captioning or other visual presentation of this emergency 
     information through at least 7:30 p.m.  

             (21)   At approximately 6:34 p.m., the anchor said 
     that residents evacuated from Pine Hills should go to Julian 
     High School.   Channel 51 did not provide closed captioning 
     or other visual presentation of this emergency information 
     through at least 7:30 p.m.  
    
               (22) At approximately 8:41 p.m., the American Lung 
     Association representative advised residents to stay indoors 
     with the windows closed, to replace their air filters, to 
     hold wet handkerchiefs around their noses and mouths and 
     breathe through their noses.  Channel 51 did not provide 
     closed captioning or other visual presentation of this 
     emergency information through at least 9:40 p.m.  
              
 









                

       
          

       

_________________________

1See 47 U.S.C.  503(b)(4)(A).  The Commission has authority 
under this section of the Act to assess a forfeiture penalty 
against a broadcast licensee if the Commission determines that 
the licensee has "willfully or repeatedly" failed to comply with 
the provisions of the Act or with any rule, regulation, or order 
issued by the Commission under the Act.  For a violation to be 
willful, it need not be intentional.  Southern California 
Broadcasting Co., 6 FCC Rcd 4387 (1991).
247 U.S.C.  613.
347 C.F.R.  79.2(b)(1)(i).
4Letter from Robert B. Jacobi, counsel for Channel 51, to Peter 
G. Wolfe, Senior Attorney, FCC (July 9, 2004) (``Response''), 
Affidavit of Michael Dean McKinnon. 
547 C.F.R.  79.1(a)(2).
647 C.F.R.  79.2(b)(1)(i).
7Letter from Colleen K. Heitkamp, Chief, Telecommunications 
Consumers Division, Enforcement Bureau, FCC, to Michael D. 
McKinnon, Vice President and Station Manager, KUSI News (May 26, 
2004) (``Letter of Inquiry'').  
8Response, filed July 9, 2004.
9The specific instances listed here and in Appendix A, all of 
which demonstrate Channel 51's apparent failure to provide visual 
access to emergency information, form the basis of this NAL. 
10The examples described in the text all occurred on October 26, 
2003.
11Because Channel 51's tapes do not always indicate the time of 
coverage and Channel 51's tape labels do not accurately indicate 
the actual coverage on the tape, we sometimes drew conclusions 
about the times and dates of coverage based on the coverage 
itself.  For example, on the initial videotape, which is labeled 
7:00 a.m. to 9:00 a.m., the time register started at 7:58 a.m., 
is turned off after 8:03 a.m., and then went on again in 
approximately twenty minutes but showed the time as 7:24 a.m.  
Given these glitches, we conclude that the tape actually started 
at 6:58 a.m.  More generally, where Channel 51's coverage did not 
provide times, we timed the videotapes starting from the point 
the tape was labeled, or, when the time stopped in the middle of 
a videotape, the time when the time register went off.  Of 
course, these times are approximate.  Most important here is the 
amount of time that elapsed between the time Channel 51 provided 
emergency information aurally and the time it presented it 
visually, if at all.  See para. 11, infra. 
12Channel 51 did not provide videotape of all its wildfire 
coverage on October 26 and 27.  See Response at 2 (``we no longer 
have all the footage from the fires....'').  Specifically, 
Channel 51 did not provide any videotapes for October 26, 2003 
between 12:17 p.m. and 3:13 p.m., on October 27, 2003 before 
10:00 a.m., between 12:43 p.m. and 3:00 p.m., between 7:30 p.m. 
and 8:10 p.m., and after 9:40 p.m.  Consequently, we cannot 
determine whether Channel 51, during these gaps of time, visually 
presented emergency information that it had previously aurally 
presented.  In our description of such cases, we note that 
Channel 51 did not make the emergency information accessible 
through at least the beginning of the missing coverage.  
1347 U.S.C  613.
14Closed Captioning and Video Description of Video Programming, 
Implementation of Section 305 of the Telecommunications Act of 
1996, and Accessibility of Emergency Programming, Second Report 
and Order, 15 FCC Rcd 6615, 6621-22, para. 12 (2000) (``Second 
Report and Order'').
1547 C.F.R.  79.2(b)(1)(i).
16Second Report and Order, 15 FCC Rcd at 6620, para. 11.
17Id. at 6618, para. 8.  
18Id. at 6621, para. 11.
19Id. at 6623-24, para. 16.
20Id. at 6619-20, paras. 9, 10 (citing examples of the importance 
of timely visual emergency information including an inaccessible 
tornado warning that caused delay in evacuation of children and 
an inaccessible water contamination warning that caused persons 
with hearing disabilities needlessly to incur health risks of 
which they were not initially aware).  In attempting to determine 
the scope of this rule, the Commission expressed concern that the 
disabilities community have available ``sufficient information'' 
with the ``same immediacy'' as other viewers.  Closed Captioning 
and Video Description of Video Programming, Implementation of 
Section 305 of the Telecommunications Act of 1996, and 
Accessibility of Emergency Programming, Further Notice of 
Proposed Rulemaking, 13 FCC Rcd 5627, 5631 (1998).  In addition 
to the plain meaning of the ``emergency information,'' the nature 
of the critical details described in section 79.2(a)(2) makes 
clear that timely visual presentation is required. See Note to 47 
C.F.R.  79.2(a)(2) discussed infra para. 7. 
21 47 C.F.R.  79.2(a)(2).
22Id.
23Second Report and Order, 15 FCC Rcd at 6617, para. 5.
24Id. (emphasis added).
25Note to 47 C.F.R.  79.2(a)(2) (emphasis added).
26See, e.g., Public Notice, ``Reminder to Video Programming 
Distributors of Obligation to Make Emergency Information 
Accessible to Persons with Hearing or Vision Disabilities,'' 17 
FCC Rcd 14614 (2002); Public Notice, ``Reminder to Video 
Programming Distributors of Obligation to Make Emergency 
Information Accessible to Persons with Hearing or Vision 
Disabilities,'' 18 FCC Rcd 14670 (2003); Public Notice, 
``Reminder to Video Programming Distributors of Obligations to 
Make Emergency Information Accessible to Persons with Hearing or 
Vision Disabilities,'' 19 FCC Rcd 9882 (May 24, 2004).
2747 C.F.R.  79.1(a)(2).
28See, e.g., KUSI Videotapes; Gregory Alan Gross, Fire Fight, No 
End in Sight for Besieged County, Wildfire Devastation Worst in 
Three Decades, S.D. UNION-TRIBUNE, Oct. 27, 2003, at A1.
29 KUSI Videotapes.
3047 C.F.R.  79.2(a)(2).  In addition, the information here was 
primarily intended for the audience in the geographic area where 
the emergency was occurring.  47 C.F.R.  79.2(b)(1)(i).
31Id.
32Id.
33Response at 2.
34Second Report and Order, 15 FCC Rcd at 6617, para. 5 (emphasis 
added).  For example, if the station reported aurally that an 
evacuation order was announced at 1:00 p.m., it could reasonably 
exercise its discretion to omit the time the order was announced 
as long as the station visually presented the existence of the 
evacuation order.
3547 C.F.R.  79.2(b)(1)(i) (emphasis added).
36Specifically, section 503(b)(2)(A) provides for forfeitures up 
to $25,000 for each violation or a maximum of $250,000 for each 
continuing violation by (i) a broadcast station licensee or 
permittee, (ii) a cable television operator, or (iii) an 
applicant for any broadcast or cable television operator license, 
permit, certificate or similar instrument.  47 U.S.C.  
503(b)(2)(A).  The Commission amended its rules by adding a new 
subsection to its monetary forfeiture provisions that 
incorporates by reference the inflation adjustment requirements 
contained in the Debt Collection Improvement Act of 1996 (DCIA), 
Pub L. No. 104-134,  31001, 110 Stat. 1321 (1996).  Thus, the 
maximum statutory forfeiture per violation pursuant to section 
503(b)(2)(A) increased from $25,000 to $27,500.  See Amendment of 
Section 1.80(b) of the Commission's Rules and Adjustment of 
Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd. 18,221 
(2000).  We note that the Commission recently increased the per 
violation amount again to $32,500.  See Amendment of Section 
1.80(b) of the Commission's Rules and Adjustment of Forfeiture 
Maxima to Reflect Inflation, 2004 WL 1366972, FCC 04-139 (rel. 
June 18, 2004); 69 FR 47788 (establishing an effective date of 
September 7, 2004).

37See 47 U.S.C.  503(b)(2)(D); see also The Commission's 
Forfeiture Policy Statement and Amendment of Section 1.80 of the 
Commission's Rules, 12 FCC Rcd 17,087 (1997); recon. denied, 15 
FCC Rcd 303 (1999).

38See  47 C.F.R.  1.80(b)(4).
39See 47 U.S.C.  503(b)(4)(C); 47 C.F.R.  1.80(f)(3).

40If Channel 51 chooses to respond, it should mail its response 
to Colleen Heitkamp, Chief, Telecommunications Consumers 
Division, Enforcement Bureau, Federal Communications Commission, 
445 12th Street, S.W. Room-4C224, Washington, D.C. 20554, and 
must include the file number listed above.  It should also send 
an electronic copy of its response to Mark Stone, Deputy Chief, 
Telecommunications Consumers Division, at mark.stone@fcc.gov and 
Peter Wolfe, Senior Attorney, Telecommunications Consumers 
Division, at peter.wolfe@fcc.gov.
41 7 C.F.R.  1.1914.
42 See n.12.
43 Examples 1-14 occurred on October 26, 2003.
44 Examples 15-22 occurred on October 27, 2003.