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Released: October 18, 2007
Federal Communications Commission
Washington, D.C. 20554
July 23, 2007
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
AND FACSIMILE (202) 546-1218
The Graham Williams Group
Attn: Armstrong Williams, Chief Executive Officer
201 Massachusetts Avenue, N.E.
Washington, D.C. 20002
Re: File No. EB-05-IH-0031
Dear Mr. Williams:
This is an official CITATION, issued pursuant to section 503(b)(5) of the
Communications Act of 1934, as amended ("the Act"), for violations of the
statutes and rules administered by the Federal Communications Commission
("Commission") that govern sponsorship identification in broadcast
programming. Future violations of these statutory provisions and
Commission rules may subject you and your company to monetary forfeitures.
As explained below, you may appeal this citation.
The Enforcement Bureau (the "Bureau") investigated whether various
parties, including certain licensees of radio and television stations and
cable operators, may have violated provisions of the Act, and the
Commission's rules in connection with the airing of program material and
announcements concerning the No Child Left Behind ("NCLB") law
administered by the United States Department of Education ("DoED").
Specifically, we investigated whether such licensees and operators aired
the material without appropriately announcing that DoED was that
material's sponsor and whether certain parties involved in the production
and distribution of the program material, including Mr. Armstrong Williams
("Williams") and the Graham Williams Group ("GWG"), failed to make related
disclosures required under the law.
As a part of this investigation, by letters of inquiry dated February 14,
2005 ("LOIs"), we requested certain information and materials from GWG and
Ketchum, Inc. ("Ketchum"). GWG and Ketchum responded to those LOIs,
providing various pertinent documents and recordings. GWG contended in its
Response that it did not violate any statute or Commission rule and that,
in any event, it was "not subject to the FCC's jurisdiction."
Notwithstanding GWG's jurisdictional objection, the Commission has the
responsibility, and the legal authority, to investigate and to enforce the
above-noted provisions of the Act and its rules, including Section 507 of
Our investigation focused on GWG's performance and that of Ketchum
pursuant to the following agreements: (1) the "Order for Supplies or
Services" dated May 14, 2003, as amended on January 6 and June 9, 2004,
between Ketchum and DoED; and (2) contracts between GWG and Ketchum dated
December 2, 2003, and June 29, 2004. By these agreements, Ketchum served
as the general contractor to DoED to implement its campaign promoting NCLB
and GWG acted as a subcontractor to Ketchum in this endeavor.
In response to our inquiry, GWG has provided documentary evidence,
including recorded program material, that details numerous instances
where GWG's principal, nationally syndicated broadcast commentator
Williams, apparently promoted NCLB during various programs in which he
appeared without identifying such comments as being sponsored. Moreover,
the broadcasters to whom such material was supplied assert that they were
not informed that the NCLB comments were sponsored by DoED and that they
did not, therefore, air sponsorship announcements for the NCLB material.
GWG argues, however, that in none of these instances were sponsorship
disclosures required because Williams' comments were not paid for or
otherwise compensated. GWG contends that its contract with DoED
specified only that it would furnish "two (2) television and two (2)
radio advertisements featuring a one-minute read by Secretary Paige"
regarding the [NCLB] program, and would "include the television spot `on
all of Mr. William's [sic] cable television affiliates.'" GWG further
asserts that advertisements on "The Right Side with Armstrong Williams"
("RSAW") "were to be included as a bonus in the radio runs of the
television show," but that they were not specifically required. GWG notes
in support of its contentions that "the Deliverables under SOW #9 and
SOW#16 do not specify delivery of any comments on NCLB, other than
placement of the DoED ads," and those advertisements included appropriate
The evidentiary record, however, belies GWG's explanations. In this
connection, the pertinent contract statements of work ("SOW") indicate
that the parties mutually intended that GWG and/or Williams would
devise and broadcast promotional messages on behalf of NCLB beyond the
provision of discrete advertisements. Furthermore, contrary to its
explanation, GWG's promise that Williams would deliver such on-air
commentary appears to have been specifically contemplated in the
contract, and not gratuitously supplied by GWG. Moreover, GWG's and
Ketchum's own correspondence contains numerous references that support a
finding that the contract work requirements contemplated the preparation
and delivery of comments on NCLB in addition to the production and
placement of discrete NCLB advertisements. Finally, we note that GWG's
monthly reports to DoED appear to report on the totality of broadcast
promotional efforts made on behalf of NCLB as having satisfied GWG's
contract duties, and not merely its placement of specific advertisements.
We find GWG's explanations that its monthly reporting efforts, made over a
year-long period, "were incorrect in listing all of [Williams's] media
interviews and activities and automatically includ[ing] them," or that
Williams only "realized for the first time" such significant reporting
errors in January 2005, after this matter was disclosed by the national
press to be unpersuasive.
In sum, the record here establishes that Williams and GWG received more
than nominal consideration from DoED to include particular material in
programming supplied to and intended for transmission by broadcast
stations and that the material was, in fact, aired by various broadcast
stations. In these circumstances, Williams and GWG were obliged under
Section 507(c) to disclose to the licensees receiving the programming that
the NCLB-related broadcast material was sponsored by DoED. The record also
establishes that such disclosure was not provided by either Williams or
GWG. We conclude that GWG and Williams violated Section 507 of the
If, after receipt of this citation, you or your company violates the
Communications Act or the Commission's rules in any manner described
herein, the Commission may impose monetary forfeitures not to exceed
$11,000 for each such violation or each day of a continuing violation.
You may respond to this citation within 30 days from the date of this
letter either through (1) a personal interview at the Commission's Field
Office nearest to your place of business, or (2) a written statement. You
may use this response to appeal this citation. In addition, your response
should specify the actions that you are taking to ensure that you do not
violate the Commission's rules governing sponsorship identification in
broadcast programming, as described above.
You may schedule a personal interview at the nearest Commission field
office. These offices are located in: Atlanta, GA; Boston, MA; Chicago,
IL; Columbia, MD; Dallas, TX; Denver, CO; Detroit, MI; Kansas City, MO;
Los Angeles, CA; New Orleans, LA; New York, NY; Philadelphia, PA; San
Diego, CA; San Francisco, CA; Seattle, WA; and Tampa, FL. Please call
Hillary S. DeNigro at 202-418-7334 if you wish to schedule a personal
interview. You should schedule any interview to take place within 30 days
of the date of this letter. You should send any written statement within
30 days of the date of this letter to:
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Federal Communications Commission
445 - 12th Street, S.W.
Washington, D.C. 20554
You should reference EB-05-IH-0031 when corresponding with the Commission.
If you request a meeting, reasonable accommodations for people with
disabilities are available upon request. Include a description of the
accommodation you will need including as much detail as you can. Also
include a way we can contact you if we need more information. Please allow
at least 5 days advance notice; last minute requests will be accepted, but
may be impossible to fill. Send an e-mail to firstname.lastname@example.org or call the
Consumer & Governmental Affairs Bureau:
For sign language interpreters, CART, and other reasonable accommodations:
202-418-0530 (voice), 202-418-0432 (tty)
For accessible format materials (braille, large print, electronic files,
format): 202-418-0531 (voice), 202-418-7365 (tty)
As required by the Privacy Act of 1974, 5 U.S.C. S: 552(a)(e)(3), you are
hereby notified that the Commission's staff will use all relevant material
information to determine what, if any, enforcement action is required to
ensure your compliance with the Commission's rules. This will include any
information that you disclose in your interview or written statement.
Finally, you should be aware that the knowing and willful making of any
false statement or the concealment of any material fact in reply to this
citation is punishable by fine or imprisonment under 18 U.S.C. S: 1001.
Kris Anne Monteith
Chief, Enforcement Bureau
cc: Colby M. May, Esq.
See Sections 317 and 507 of the Communications Act of 1934, as amended,
codified at 47 U.S.C. S:S: 317 and 508, respectively, and Section 73.1212
of the Commission's rules, 47 C.F.R. S:S: 73.1212.
Id. As to the disclosure obligation, Section 507(c) of the Act provides in
[A]ny person who supplies to any other person any program or program
matter which is intended for broadcasting over any radio station shall, in
advance of such broadcast, disclose to such other person any information
of which he has knowledge, or which has been disclosed to him, as to any
money, service or other valuable consideration which any person has paid
or accepted, or has agreed to pay or accept, for the inclusion of any
matter as a part of such program or program matter. . . .
47 U.S.C. S: 508(c).
See Letter from GWG to Kenneth M. Scheibel, Jr., Attorney, Investigations
& Hearings Division, Enforcement Bureau, dated April 6, 2005 ("GWG
Response"), and Letter from Ketchum to William D. Freedman, Deputy Chief,
Investigations & Hearings Division, Enforcement Bureau, dated April 13,
2005 ("Ketchum Response").
Section 507's disclosure obligations, and hence our jurisdiction, extend
to "any person" engaged in the conduct described in that provision, not
just licensees or regulatees of the Commission. See 47 U.S.C. S:S:
503(b)(1)(B) (authorizing FCC to impose a forfeiture penalty on any person
who has "willfully or repeatedly failed to comply with any of the
provisions of this Act"), 508(g) ("Any person who violates any provision
of this section shall, for each such violation, be fined not more than
$10,000 or imprisoned not more than one year, or both."). See also id. at
S: 503(b)(5) (before imposing a forfeiture penalty on a non-licensee, FCC
must issue a citation to non-licensee and non-licensee must subsequently
engage in prohibited conduct). Ketchum's contention that the Commission
has no authority to enforce Section 507 because it is a criminal provision
over which the Department of Justice has primary jurisdiction simply
overstates the case. The Commission recognizes the jurisdictional
responsibilities of the Department of Justice and its sole authority to
bring criminal cases, but it also has a long history of exercising
concurrent administrative jurisdiction where provisions in the
Communications Act include civil and criminal penalties. See, e.g., our
administrative enforcement of the criminal provisions governing the
broadcast of indecent, obscene or profane material at 18 U.S.C. S: 1464,
referenced in Sections 503(b)(1) and 312(a)(6) of the Communications Act.
See GWG Response, Tab 1.
See Ketchum Response, Tab 9; see also GWG Response, Tab 3.
See, e.g., GWG Response, Tab 21.
We note that in November 2006 and May 2007, the Bureau inquired of 15
licensees of 60 television stations concerning eight specific episodes of
"Right Side with Armstrong Williams," and one episode of "America's Black
Forum," during which Williams discussed NCLB. In their responses, the
licensees who received such programming from GWG uniformly denied that GWG
furnished any sponsorship identification announcement or other information
concerning Williams' relationship with DoED and/or the NCLB comments.
See GWG Response at 4.
See GWG Response at 9. This citation addresses GWG's failure to identify
as sponsored numerous intra-program mentions and discussion of NCLB. We do
not dispute its contention that the television advertisements it prepared
concerning NCLB, featuring DoED Secretary Paige, contained appropriate
See SOW # 9 (Attachment B to January 24, 2004, Amendment of Contract
between DoED and Ketchum).
See Ketchum Response, Tab 2.
See, e.g.,GWG Response, Tabs 6 and 8; Ketchum Response, Tab 24.
See GWG Response, Tab 11.
See GWG Response at 4-5.
GWG Response, Tab 3; Ketchum Response, Tab 9.
The broadcast stations that aired all or part of such material without
providing appropriate sponsorship identification, include one licensed to
Sonshine Family Television, Inc. - WBPH-TV, Bethlehem, Pennsylvania, which
aired 5 episodes of RSAW; several licensed to subsidiaries of Sinclair
Broadcast Group, Inc. - WABM(TV), Birmingham, Alabama; KSMO-TV, Kansas
City, Missouri; WVTV(TV), Milwaukee, Wisconsin; WUXP-TV, Nashville,
Tennessee; KOCB(TV), Oklahoma City, Oklahoma, WEAR-TV, Pensacola, Florida;
WPMY(TV), Pittsburgh, Pennsylvania; KABB(TV), San Antonio, Texas; and
WTWC-TV, Tallahassee, Florida, all of which aired one episode of ABF; and
one licensed to Glory Communications, Inc. - WGCV(AM), Cayce, South
Carolina, which aired an audio version of 8 episodes of RSAW and one
episode of ABF. Glory indicates that it provided an announcement
identifying GWG, but not DoED, as the material's sponsor. See also note
Although in this case certain broadcast stations actually aired the
subject material, this is not a prerequisite to a finding of violation of
Section 507(c). That provision states that disclosure is required whenever
any person supplies program material "which is intended for broadcast...."
47 U.S.C. S: 507(c).
See 47 C.F.R. S: 1.80(b)(3).
Federal Communications Commission DA 07-3351
Federal Communications Commission DA 07-3351