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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No. EB-04-TC-061
Midwest Television, Inc. Facility No. 42122
Licensee of KFMB-TV NAL/Acct. No. 200532170006
San Diego, CA FRN: 0003750775
Adopted: March 7, 2007 Released: March 7, 2007
By the Chief, Enforcement Bureau:
In this Order, we adopt the attached Consent Decree entered into between
the Enforcement Bureau and Midwest Television ("Midwest"). The Consent
Decree terminates an investigation initiated by the Enforcement Bureau
regarding whether Midwest violated section 713 of the Communications Act
of 1934, as amended (the "Act"), and section 79.2(b)(1)(i) of the
Commission's rules by failing to make accessible to persons with hearing
disabilities emergency information that it provided aurally in its
programming for KFMB-TV during wildfire news coverage during October of
The Enforcement Bureau and Midwest have negotiated the terms of a Consent
Decree that resolve this matter and terminate the investigation. A copy of
the Consent Decree is attached hereto and incorporated by reference.
After reviewing the terms of the Consent Decree, we find that the public
interest would be served by adopting the Consent Decree and terminating
the investigation. In the absence of material new evidence relating to
this matter, we conclude that our investigation raises no substantial or
material questions of fact as to whether Midwest possess the basic
qualifications, including character qualifications, to remain a Commission
licensee. Furthermore, we find that the Notice of Apparent Liability
issued in this proceeding is null and void.
Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Communications
Act of 1934, as amended, and the authority delegated by sections 0.111 and
0.311 of the Commission's rules, that the attached Consent Decree IS
ADOPTED and the Notice of Apparent Liability IS CANCELLED.
IT IS FURTHER ORDERED that the above-captioned investigation into the
matters described herein 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
Jonathan Blake, Covington & Burling LLP, 1201 Pennsylvania Avenue, NW,
Washington, DC 20004.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-04-TC-061
Midwest Television, Inc. ) Facility No. 42122
Licensee of KFMB-TV ) NAL/Acct. No. 200532170006
San Diego, CA ) FRN: 0003750775
1. The Enforcement Bureau ("Bureau") of the Federal Communications
Commission (the "FCC" or "Commission") and Midwest Television, Inc.
("Midwest" or "Station"), by their authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the
Bureau's investigation (the "Investigation") regarding whether the
Station complied with section 713 of the Communications Act of 1934,
as amended (the "Act"), and section 79.2(b)(1)(i) of the Commission's
rules, as it relates to the duty to make accessible to persons with
hearing disabilities emergency information that the Station provided
aurally in their programming during wildfire news coverage on October
26 and October 27, 2003.
2. During the week beginning Sunday, October 26, 2003, there were
wildfires throughout Southern California, including the San Diego
area. Due to high winds these fires spread rapidly and caused the
evacuation of many San Diego residents. During this time, the Station
broadcast emergency information regarding the wildfires. The
Commission was made aware of allegations that the Station may have
failed to make certain information regarding the wildfires accessible
to persons with hearing disabilities. This failure allegedly resulted
in hearing impaired viewers not having access to critical emergency
information. The Bureau subsequently launched an investigation into
the Station's October 26 and 27 broadcasts, which determined that the
Station failed to provide visual presentation of emergency information
about the wildfires in 11 instances where the information had been
aurally presented. Accordingly, the Bureau issued a Notice of Apparent
Liability for Forfeiture ("NAL") proposing that Midwest pay a
forfeiture of twenty thousand dollars ($20,000) for apparently failing
in a timely manner to make accessible to persons with hearing
disabilities emergency information that it provided aurally. Midwest
filed a response to the NAL on March 24, 2003.
3. For the Purposes of this Consent Decree, the following definitions
(a) "Act" means the Communications Act of 1934, as amended;
(b) "Bureau" means the Enforcement Bureau of the Federal Communications
c. "Commission" or "FCC" means the Federal Communications Commission;
d. "Emergency Visual Presentation Policy" means the process and
procedures developed by the Station in an effort to ensure compliance
with the Act and the Rules regarding broadcasting emergency
information for the hearing impaired;
e. "Extended news coverage of an emergency condition" means news
programming of one half hour or greater duration, other than the
Station's regularly scheduled news programming, during which emergency
information, as defined in section 79.2 of the Commission's rules, is
f. "Effective Date" means the date on which the Bureau releases the
g. "Investigation" means the investigation of the Station's broadcasts on
October 26 and 27, 2003;
h. "Midwest" means Midwest Television, Inc., licensee of KFMB-TV, San
Diego, CA, and any affiliate, d/b/a predecessor-in-interest, parent
companies and any direct or indirect subsidiaries of such parent
companies, or other affiliated companies or businesses, and their
successors and assigns;
i. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms and conditions of this Consent Decree without change, addition,
or modification, and formally terminating the above-captioned
j. "Parties" means Midwest and the Bureau;
k. "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations; and,
l. "Station" means Midwest's station KFMB-TV, Facility ID. No. 42122,
serving the San Diego, CA, Designated Market Area.
4. Midwest agrees that the Bureau has jurisdiction over it and the
subject matter contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
5. The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement between them concerning the
Investigation. In express reliance on the covenants and
representations contained herein, and to avoid the potential
expenditure of additional public resources, the Bureau agrees to
terminate the Investigation. In consideration for the termination of
this Investigation and in accordance with the terms of this Consent
Decree, the Station agrees to the terms, conditions and procedures
6. The Parties agree that this Consent Decree does not constitute either
an adjudication on the merits or a factual or legal finding regarding
any compliance or noncompliance by Midwest with the requirements of
the Act and the Rules. The Parties agree that this Consent Decree is
for settlement purposes only and that by agreeing to this Consent
Decree, Midwest does not admit or deny any non-compliance or violation
of the Act or the Commission rules in connection with the matters that
are the subject of this Consent Decree.
7. 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 Order.
8. The Parties agree that this Consent Decree shall become effective on
the Effective Date and shall have the same force and effect as any
other order of the Commission. 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 Commission order.
9. The Bureau agrees that it shall terminate the Investigation. The
Bureau agrees that, in the absence of new material evidence, it will
not on its own motion initiate any inquiries, investigations,
forfeiture proceedings, hearings, or other sanctions or actions
against Midwest, based in whole or in part on the Investigation or any
complaints alleging violations of section 79.2 relating to the
Station's coverage of the San Diego wildfires during October of 2003.
The Bureau agrees that, in absence of material new evidence, it will
not initiate or recommend to the Commission any new proceeding,
informal or formal, regarding the matters that were subject of the
Investigation. The Bureau further agrees that, in 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, informal or
formal, or take any action on its own motion against Midwest with
respect to its basic qualifications to be or remain a Commission
10. In consideration for the termination of the Investigation, the Station
will implement within 30 days of the Effective Date and maintain the
following Emergency Visual Presentation Policy, which will be overseen
by the Station's News Director:
(a) It shall be the policy of the Station to closed caption the regularly
scheduled local news and emergency information set forth below. Pursuant
to this policy, the Station will contract with a reputable real-time
closed captioning service provider to obtain real-time closed captioning
for said regularly scheduled newscasts and emergency information presented
(1) Monday-Friday News Broadcast at 5:00-6:00 p.m., 11:00-11:30 p.m., and,
(2) Any "extended news coverage of an emergency condition" affecting the
San Diego, CA Designated Market Area.
(b) It shall be the policy of the Station to closed caption all emergency
information broadcast outside a regularly scheduled newscast if such
information is conveyed aurally by the Station. However, pursuant to the
Emergency Visual Presentation Policy, if captioning services are not
immediately available or if captioning services cannot be immediately
secured, the Station will make critical details of the emergency
information accessible by other visual means, such as crawls, scrolls, or
handwriting on a blackboard, and will continue to do so until captioning
begins. In any event, captioning must be provided as set forth above,
within thirty (30) minutes of any "extended news coverage of an emergency
condition," consistent with the Commission's rules and polices. Emergency
information will include any information relating to an imminent or
ongoing emergency, as described in section 79.2 of the Commission's rules,
affecting the Station's viewers that is intended to protect life, health,
c. The Station will maintain visible postings on television sets in the
Station's newsroom and master control that remind employees to contact
the Station's captioning service during emergency conditions and
include the phone number for that service;
d. The Station will maintain a labeled speed-dial button on telephones in
the Station's newsroom and master control to the Station's captioning
(e) Pursuant to the Emergency Visual Presentation Policy, the Station will
promptly commence captioning, or contact its captioning service, before or
contemporaneously with any broadcast coverage of a pending or imminent
emergency that endangers the Station's viewers and will make its best
reasonable efforts to ensure that coverage of the emergency is captioned
as soon as possible. As set forth above, captioning must be provided
within the first thirty (30) minutes of any "extended news coverage of an
emergency condition," consistent with the Commission's rules and policies.
Consistent with 79.2 of the Commission's rules, during any time that
captioning is not immediately available to caption the news cast or
breaking news report, the Station will make the critical details of the
emergency information accessible by other means, such as crawls, scrolls,
or handwriting on a blackboard.
(f) The Station will distribute, at least every six months, the Station's
emergency visual presentation policy to news and other appropriate
employees as well as when such employees are hired.
11. In consideration for the termination of the Investigation, and in
accordance with the terms of this Consent Decree, Midwest will make a
voluntary contribution to the United States Treasury without further
protest or recourse to a trial de novo in the amount of eighteen
thousand dollars ($18,000) within 30 calendar days after the Effective
Date. Midwest must make this payment 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
358340 Pittsburgh, Pennsylvania, 15251. Payment by overnight mail may
be sent to Mellon Client Service, 500 Ross Street, Room 670,
Pittsburgh, PA, 15262-0001, Attention: FCC Module Supervisor. Payment
by wire transfer may be made to ABA Number 043000261, receiving Mellon
Bank, and account number 911-6229. Please include your NAL/Acct No. in
12. Midwest's decision to enter into this Consent Decree is expressly
contingent upon the Bureau's issuance of an Order that is consistent
with this Consent Decree, and which adopts the Consent Decree without
change, addition or modification.
13. Midwest 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
Order, provided the Bureau issues an Order adopting the Consent Decree
without change, addition or modification.
14. If any Party (or the United States on behalf of the FCC) brings a
judicial action to enforce the terms of the Order, neither Midwest nor
the FCC shall contest the continuing validity of the Consent Decree or
Order. Midwest and the Commission further agree that they will waive
any statutory right to a trial de novo with respect to any matter upon
which the Order is based (provided in each case that the Order is
limited to adopting the Consent Decree without change, addition, or
modification), and that they will consent to a judgment incorporating
the terms of this Consent Decree.
15. 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.
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 Midwest does not consent), that the provision
will be superseded by such Commission rule or order.
17. By this Consent Decree, Midwest does not waive or alter its right to
assert and seek protection from disclosure of any privileged or
otherwise confidential and protected documents and information, or to
seek appropriate safeguards of confidentiality for any competitively
sensitive or proprietary information.
18. The Parties agree that the requirements of this Consent Decree shall
expire twenty-four (24) months from the Effective Date.
19. 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.
For the Enforcement Bureau For Midwest Television, Inc.
By: ______________________________ By:
Kris Anne Monteith ______________________________
Elisabeth M. Kimmel
47 U.S.C. S 613.
47 C.F.R. S 79.2(b)(1)(i).
Midwest Television, Inc., Notice of Apparent Liability, 20 FCC Rcd 3959.
47 U.S.C S 154(i).
47 C.F.R. SS 0.111, 0.311.
47 U.S.C. S 613.
47 C.F.R. S 79.2(b)(1)(i).
The 11 apparent violations cited in the NAL were described in an
attachment to the NAL and will be referred to throughout this forfeiture
order. See Attachment A.
Letter to David Solomon, Chief, Enforcement Bureau, Federal Communications
Commission from Elizabeth M. Kimmel, Vice President, Vice President,
Business & Legal Affairs, Midwest Television, Inc.
(Continued from previous page)
Federal Communications Commission DA 07-965
Federal Communications Commission DA 07-965