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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Fox Television Stations, Inc. )
Licensee of WTTG (TV) ) File No. EB-04-TC-104
Washington, D.C. ) Facility ID No. 22207
) NAL/Acct. No. 200532170011
) FRN: 0012916607
Apparent Liability for )
Forfeiture )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 25, 2005
Released: May 25, 2005
By the Acting Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''),1 we find that Fox Television Stations, Inc. (``Fox'')
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 Fox
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 WTTG during a
thunderstorm/tornado watch in the Washington, D.C. Metropolitan
area on May 25, 2004. Based upon our review of the facts and
circumstances, we find Fox apparently liable for a forfeiture in
the amount of $16,000.
II. BACKGROUND
2. Approximately one in ten Americans - 28 million -
has some level of hearing loss; in the population of people over
65 years of age that number increases to one in three.4 As the
median age of the population continues to rise, the proportion of
Americans with hearing loss will likely increase.5 According to
the American Speech-Language-Hearing Association, ``[t]he number
of Americans with a hearing loss has evidentially doubled during
the past 30 years. Data gleaned from Federal surveys illustrate
the following trend of prevalence [of hearing loss] for
individuals aged three years or older: 13.2 million (1971), 14.2
million (1977), 20.3 million (1991), and 24.2 million (1993).''6
Access to television information in an emergency is critical for
all Americans, including this important and growing segment of
our population.
A. Requirements for Accessibility of Emergency Information
3. Congress recognized how important visual access to
televised information is to individuals with hearing
disabilities, and required the Commission, pursuant to section
713 of the Act,7 to prescribe rules regarding Video Programming
Accessibility. Pursuant to this direction, and out of a concern
that critical emergency information be available to every
television viewer, including persons with hearing disabilities,
the Commission adopted section 79.2 of the rules.8 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.9
4. The Commission's rules do not require closed
captioning,10 but allow for other methods of visual presentation,
including, but not limited to, open captioning, crawls, or
scrolls.11 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.12
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.''13 This could include already prepared signs or charts or
handwritten information contained on a white board.14 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.'' 15 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,''16 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. The Commission
long ago recognized the importance of timeliness of providing
emergency information, noting that ``if visual notification is
delayed, it should not be unreasonably delayed so that a hearing
impaired person would not have time to take reasonable and
constructive precautions with regard to the emergency.''17
5. 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,''18 not merely the existence of an
emergency.19 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.''20 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.''21 Since the adoption of the rules, the Commission
has repeatedly reminded video programming distributors of their
obligation to make emergency information accessible.22
B. The Investigation
6. On May 25, 2004, the Washington, D.C. Metropolitan
area was subject to a severe thunderstorm/tornado watch. The
Commission received a consumer complaint against WTTG alleging
that the station failed to make information on the
thunderstorm/tornado watch accessible to persons with hearing
disabilities that resulted in confusion about the severity and
location of the emergency for those viewers. In the words of the
complainant, ``[Fox] cut into the screen during `American Idol'
for news about the weather. From this visual (with no captions),
it look[ed] like the bad weather might be in Maryland. I was
totally confused.''23
7. The Enforcement Bureau (``Bureau'') subsequently
launched an investigation into Fox's broadcasts carried on WTTG
on that date.24 The Bureau sent a Letter of Inquiry to Fox,
directing Fox to provide, among other things, videotapes of Fox's
May 25, 2004 coverage of the thunderstorm/tornado watch on WTTG.
Fox filed a response that included the requested videotapes.25
8. The Bureau has reviewed Fox's tapes of WTTG's
programming and identified two instances where the station
aurally provided emergency information regarding the way to take
shelter in one's home but failed to provide the visual
presentation of that emergency information. The two instances
are described below.
(a) At 6:20 p.m., Ms. Gwen Tolbart told viewers in the
Frederick and Hagerstown, Maryland areas that they should take
cover, go to the lowest level of their house, and stay close to
the floor. Fox failed to provide closed captioning or any visual
presentation of this emergency information on WTTG.
(b) At 6:45 p.m., Ms. Tolbart told viewers located in
Lovettsville, Leesburg, and Lucketts, Virginia, to take cover, go
to the lowest level of their house, and go to an interior room.
Fox failed to provide closed captioning or any visual
presentation of this emergency information on WTTG.
III. DISCUSSION
9. As an initial matter, we note that Fox 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....''26 As a broadcast licensee, Fox
must comply with the Commission's rules regarding the
accessibility of emergency information to individuals with
hearing disabilities.
10. We now turn to an analysis of the information
broadcast by Fox over WTTG during the time period at issue. Fox
interrupted its regular programming with coverage of the
thunderstorm/tornado watch on several occasions. Fox's
meteorologist repeated emergency information many times,
emphasizing the areas where the thunderstorm or tornado was
located and was likely to cause damage or loss of life, warned
viewers to take shelter in their homes, and provided instructions
for safe sheltering. While Fox visually presented some
information during this period, mostly concerning the location of
the severe weather, it appears that in several instances Fox did
not make critical information available to persons with hearing
disabilities.
11. The record shows that, in two separate instances
from approximately 6:20 p.m. to 6:45 p.m., Fox aurally provided
critical emergency information to viewers at specific locations
on the way to take shelter in one's home, but failed to provide
any visual presentation of this information.27 The information
in question concerning 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.''28 Indeed,
the Commission offered this category of information as an example
of critical details covered by the rule.29 In addition, the
Commission offered tornadoes and warnings and watches of
impending changes in weather as examples of covered
emergencies.30 Fox did not, however, provide visual presentation
of the shelter instructions after they were aurally provided. We
note that, because of the rapid movement of a tornado and the
quickly changing weather patterns associated with this type of
weather event, it is vital that basic emergency information be
provided visually and in a timely manner. The failure to present
emergency information visually in this instance could have
resulted in serious bodily harm or loss of life for persons with
hearing disabilities. Accordingly, based on the facts and
circumstances present here, we find Fox liable for two apparent
violations of section 79.2(b)(1)(i).
12. Fox provides evidence that its failure to provide
closed captioning was caused by the unavailability of its
contract closed captioning service.31 As stated above, however,
and as described in more detail below, section 79.2(b)(1)(i)
mandates only that Fox provide visual access to emergency
information by some means, not that Fox provide such visual
access by closed captioning. Therefore, even without the
assistance of its contract captioner, Fox could have complied
with the rule by utilizing crawls, graphics, or some other method
of visual presentation. Indeed, Fox displayed a chart showing
shelter tips at 5:53 p.m., but it failed to provide that chart
after shelter tips were aurally provided later during its
programming. Therefore, viewers with hearing disabilities who
were not watching at 5:53 p.m. were not made aware of shelter
tips when they were communicated aurally at other times. Fox's
evidence does not, therefore, alter our conclusion.
IV. FORFEITURE AMOUNT
13. For the time period 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.32 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."33 Based on
our review of the record, we conclude that Fox is apparently
liable for the willful or repeated violation of our rules.
14. 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).34 The purpose of the EAS
and safety frequencies rules is to warn persons of emergencies,
and the purpose of section 79.2(b)(1)(i) is the same. Fox
provided aural emergency information without providing visual
presentation on several occasions, resulting in two apparent
violations of the rule. Accordingly, we propose a forfeiture of
$16,000 for the two apparent violations here. Fox 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.35
V. CONCLUSIONS AND ORDERING CLAUSES
15. We have determined that Fox Television Stations,
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 $16,000.
16. 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 Fox Television Stations, Inc. IS HEREBY NOTIFIED of an
Apparent Liability for Forfeiture in the amount of $16,000 for
willful or 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.
17. 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, Fox Television Stations, 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.36
18. Payment of the forfeiture must 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 may be mailed to Federal Communications Commission,
P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight
mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and
account number 911-6106.
19. 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 principles (``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.
20. 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. 20554.37
21. IT IS FURTHER ORDERED that copies of this Notice of
Apparent Liability for Forfeiture SHALL BE SENT by certified mail
to Molly Pauker, Vice President, Corporate and Legal Affairs, Fox
Television Stations, Inc, 5151 Wisconsin Avenue, N.W.,
Washington, D.C. 20016.
FEDERAL COMMUNICATIONS COMMISSION
Kris A. Monteith
Acting Chief, Enforcement Bureau
_________________________
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).
4See Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones, WT Docket No. 01-309, Report and
Order, 18 FCC Rcd 16753, at para. 5 (2003) (HAC Report and
Order); Erratum, WT Docket No. 01-309, 18 FCC Rcd 18047 (2003)
(citations omitted).
5See HAC Report and Order, 18 FCC Rcd 16753, at para. 5..
6From:
http://www.asha.org/public/hearing/disorders/prevalence_adults.h-
tm (visited May 24, 2005) (citations omitted).
747 U.S.C § 613.
8Closed 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'').
947 C.F.R. § 79.2(b)(1)(i).
10Second Report and Order, 15 FCC Rcd at 6620, para. 11.
11Id. at 6618, para. 8.
12Id. at 6621, para. 11.
13Id. at 6623-24, para. 16.
14See generally, Amendment of Part 73 of the Rules to Establish
Requirements for Captioning of Emergency Messages on Television,
Report and Order, Docket No. 20659, 61 FCC2d 18 (1976) (1976
Order), at paras. 9, 11 and Appendix B (relating to prior visual
presentation requirements and noting potential use of slides and
hand printed messages).
15Id. 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 to needlessly 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.
1647 C.F.R. § 79.2(a)(2).
17 1976 Order, 61 FCC2d 18, at para. 11.
18Id.
19Second Report and Order, 15 FCC Rcd at 6617, para. 5.
20Id. (emphasis added).
21Note to 47 C.F.R. § 79.2(a)(2) (emphasis added).
22See, e.g., Public Notice, ``Reminder to Video Programming
Distributors of Obligation to Make Emergency Information
Accessible to Persons with Hearing Disabilities,'' DA 01-1930, 16
FCC Rcd 15348 (2001); 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); Public
Notice, ``Reminder to Video Programming Distributors of
Obligation to Make Emergency Information Accessible to Persons
with Hearing Disabilities,'' DA 05-688, 20 FCC Rcd ____, 2005 WL
626867 (CGB March 17, 2005); Letter from Colleen K. Heitkamp,
Chief, Telecommunications Consumers Division, Enforcement Bureau,
FCC, to Molly Pauker, Vice President, Corporate and Legal
Affairs, Fox Television Stations, Inc., (April 22, 2004).
23Complaint filed by Cheryl A. Heppner, Executive Director,
Northern Virginia Resource Center for Deaf and Hard of Hearing
Persons (``NVRC'') (filed May 28, 2004) (``NVRC Complaint'').
NVRC is located in Fairfax, Virginia, a suburb of Washington,
D.C.
24Fox is the licensee of WTTG and is a video programming
distributor as defined in our rules. 47 C.F.R. § 79.1(a)(2).
Letter from Molly Pauker, Vice President, Corporate and Legal
Affairs, Fox Television Stations, Inc., to Peter G. Wolfe, Senior
Attorney, FCC (June 29, 2004) (``Response'').
25Letter from Colleen K. Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau, FCC, to Fox Television
Stations, Inc. (June 7, 2004) (``Letter of Inquiry'').
2647 C.F.R. § 79.1(a)(2).
27See supra para. 8.
28Id. 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)(2).
29Note to 47 C.F.R. § 79.2(a)(2).
3047 C.F.R. § 79.2(a)(2).
31Response at 7, Exhibit 1.
32Specifically, 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).
33See 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).
34See 47 C.F.R. § 1.80(b)(4).
35See 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3).
36If Fox 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. Fox 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.
3747 C.F.R. § 1.1914.