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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Waterman Broadcasting Corp. of ) File No. EB-04-TC-145
Florida, Inc. ) Facility ID No. 71085
Licensee of WBBH-TV ) NAL/Acct. No. 200532170013
Fort Myers-Naples, FL ) FRN: 0001807965
)
) File No. EB-04-TC-150
Montclair Communications, Inc. ) Facility ID No. 19183
Licensee of WZVN-TV ) NAL/Acct. No. 200532170014
Fort Myers-Naples, FL ) FRN: 0001733518
Apparent Liability for
Forfeiture
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 8, 2005
Released: August 9, 2005
By the Acting Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''),1 we find that Waterman Broadcasting Corp.
(``Waterman'') and Montclair Communications, Inc.
(``Montclair'') 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
Waterman and Montclair4 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 they provided aurally in their programming for
WBBH-TV and WZVN-TV during the Hurricane Charley emergency in
the Fort Myers-Naples, Florida area on August 12 and August 13,
2004. Based upon our review of the facts and circumstances, we
find that each of the stations is apparently liable for a
forfeiture in the amount of $24,000.
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.5 As the
median age of the population continues to rise, the proportion of
Americans with hearing loss will likely increase.6 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).''7
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,8 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.9 Section
79.2(b)(1)(i) requires video programming distributors providing
emergency information in the audio portion of programming to
provide persons with hearing disabilities the same access to such
information, either through a method of closed captioning or
another method of visual presentation.10
4. As noted, the Commission's rules do not mandate closed
captioning,11 but instead allow for any number of means of visual
presentation, including, but not limited to, open captioning,
crawls, or scrolls.12 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.13 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.''14 Methods could
include already prepared signs, charts, or handwritten
information contained on a white board.15
5. 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.''16 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,''17 that
the Commission required video programming distributors to display
emergency information in a timely manner so that viewers can
respond to a current emergency without endangering their safety.
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.''18
6. Emergency information is defined 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,''19 not merely the existence of an emergency.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 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.''22 Since adoption of the rules, the Commission has
reminded video programming distributors of their obligation to
make emergency information accessible no fewer than five times.23
B. The Investigation
7. On August 13, 2004, Hurricane Charley hit Florida's
western coast between Fort Myers and Punta Gorda causing deaths,
injuries, and extensive damage to property and natural resources
in
Florida.24 A Category 4 Hurricane, Hurricane Charley came ashore
with winds of 145 miles per hour, later reaching 180 miles per
hour and causing ten foot waves.25 Hurricane Charley is reported
to have been the most powerful storm to hit the Fort Myers area
since 1960.26 WBBH-TV and WZVN-TV broadcast emergency
information regarding Hurricane Charley on August 12 and 13,
2004.27
8. During this coverage, the stations provided their
viewers with emergency information, including the closing of
government facilities, evacuation routes, shelters, the course of
the storm, and the predicted time and counties that Hurricane
Charley would hit. Waterman and Montclair joined forces,
pursuant to a pre-November 5, 1996 time brokerage agreement, to
bring greater resources to bear on coverage of Hurricane
Charley.28 Beginning at 11:30 p.m. on August 12, the stations
began simulcasting special coverage of Hurricane Charley and
preempted regular programming and provided 24-hour coverage of
the storm.29
9. After receiving a complaint about the stations'
coverage,30 the Enforcement Bureau (``Bureau'') launched an
investigation into Waterman's broadcasts on WBBH-TV and
Montclair's broadcasts on WZVN-TV. The Bureau sent Letters of
Inquiry to the stations, directing the stations to provide, among
other things, videotapes for August 12, 2004 and August 13, 2004
of Waterman's coverage of Hurricane Charley on WBBH-TV and
Montclair's coverage of Hurricane Charley on WZVN-TV. The
stations filed responses, including the requested videotapes.31
10. The Bureau has reviewed the stations' videotapes of
programming along with other material the stations provided in
response to the Bureau's Letters of Inquiry, and identified
several instances in which the stations aurally provided
emergency information but failed to provide visual presentation
of emergency information in violation of section 79.(2)(b)(1)(i)
of our rules. These instances, described below at paragraphs 14-
19, form the basis of the NAL.
III. DISCUSSION
11. As an initial matter, we note that the stations are
``video programming distributors'' 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....''32 As broadcast licensees, the
stations must comply with the Commission's rules regarding the
accessibility of emergency information to individuals with
hearing disabilities.
12. We now turn to an analysis of the information
broadcast by the stations over WBBH-TV and WZVN-TV during the
time period at issue. We note at the outset that Hurricane
Charley caused significant injuries to persons, loss of life, and
extensive damage to property and natural resources in the Fort
Myers-Naples area.33 Waterman's coverage of Hurricane Charley,
which lasted eight days, 34 and Montclair's coverage, which
lasted seven days, 35 illustrate the urgency and danger of the
situation. The stations' anchors and reporters repeated
emergency information many times, including evacuation orders,
up-to-date information on the path of the storm, anticipated
times the storm would hit particular communities, and road and
bridge closures. The stations' personnel characterized the storm
as a very serious threat to life and property in southwest
Florida.36 While the stations visually presented some
information during this period, it appears that in several
instances the stations did not make critical information
available to persons with hearing disabilities.
13. Hurricane Charley was an emergency covered by the
Commission's emergency visual access rules. Further, the record
shows that on August 13, 2004 the stations aurally provided
critical emergency information on road and bridge closures, and
evacuation details, but failed to provide visual presentation of
this information. Below we describe each of the three apparent
violations that form the basis of this NAL, and we address each
of the stations' defenses. At the outset, we note that Hurricane
Charley's destructive force and rapidly changing course made it
vital that the stations provide emergency information visually to
avoid serious bodily harm or loss of life for persons with
hearing disabilities.
14. With respect to the first apparent violation, on
August 13 at 1:58 p.m., newscaster Heather Turco stated that
``[t]he biggest news, the Sanibel Causeway is shut down, you will
not be able to get on it. They tell us, the only way to get off
the island is to swim off.''37 Similarly, at 2:24 p.m., Ms.
Turco announced that ``[t]he Sanibel Causeway is shut down'' and
after ``3:45 or 4:00 it is no longer safe to go to shelters, if
you want to go, go now after 4:00 no longer safe.''38 Based on
our review of the videotapes and the stations' written material,
we find that the stations did not provide visual access to this
emergency information.
15. The stations do not deny that they failed to present
this information visually. Instead they argue that (i) while the
information may have been ``useful'' to viewers, the most
critical information during this period was the ``take shelter
ASAP warnings'' the stations presented in the crawls; and (ii)
the shelter information was not a critical detail about the
emergency situation.39 We disagree on both counts. First, the
warnings regarding the Sanibel Causeway clearly constitute ``road
closure'' information covered by the rule.40 The Sanibel
Causeway is a particularly important road as it is the only means
on and off Sanibel Island; without this information, persons with
hearing disabilities had no way of knowing that they would not be
allowed to cross the Causeway, placing them in a potentially
dangerous situation. Second, the information that it was no
longer safe to go to a shelter clearly is information to
``further the protection of life, health, safety and
property....''41 Failure to provide this information visually
left viewers with hearing disabilities in the potentially
dangerous situation of trying to reach shelter when it was
clearly too late for any such attempts. We find the stations'
failure to provide visual access to this emergency information an
apparent violation of section 79.2(b)(1)(i).
16. The second apparent violation occurred on August 13 at
2:21, when newscaster Robert Van Winkle announced ``warning now
to Glades County residences, there's a mandatory evacuation,
effective immediately for people in manufactured homes and low
lying areas are required to leave and seek shelter.''42 Based on
our review of the videotapes and the stations' written material,
we find that the stations did not provide visual access to this
emergency information.
17. As with the first apparent violation, the stations do
not deny that they failed to provide this information visually.
Instead, the stations assert that while this information may have
been ``useful'' to viewers, in the stations' good faith judgment
the radar graphic provided the necessary details to indicate the
severity and location of the storm.''43 We disagree. The
Commission provided evacuation orders as a specific example of
emergency information that must be visually provided.44 The
stations' radar graphic did not convey the critical information
that Glades County was under a mandatory evacuation. Without
visual presentation of the evacuation order, viewers with hearing
disabilities in Glades County had no way to learn of the
mandatory evacuation order. We find the stations' failure to
provide visual access to this critical emergency information an
apparent violation of section 79.2(b)(1)(i).
18. The third apparent violation occurred on August 13 at
2:26 p.m., when newscaster Jim Reif announced that ``[w]e just
got [an] urgent request from Emergency Management Office
Charlotte County, urging residents at this point, do not
evacuate, it's too dangerous, stay where you are hunker down as
best you can. Residents of Charlotte County, Punta Gorda, Port
Charlotte and all around Charlotte Harbor, stay where you
are.''45 Based on our review of the videotapes and the stations'
written material, we find that the stations did not provide
visual access to this emergency information.
19. Again, the stations do not deny that they failed to
provide visual access to the information that residents of these
specific areas should no longer evacuate. Instead, the stations
argue that sufficient information was provided visually in crawls
at 2:33 p.m. and 3:37 p.m.46 Again, we disagree. The stations'
crawls at these times provided only generic warnings that
``Charley was CAT4 storm and viewers should seek shelter
immediately.''47 The aural location-specific information is
clearly information ``intended to further the protection of life,
health, safety...'' and ``specific details regarding the areas
that will be affected by the emergency.48 Without visual
presentation of the Charlotte County Emergency Management Office
warning, hearing impaired residents of Charlotte County had no
way of knowing the generic warning meant to stay where they were
and not to seek other shelter. We find the stations' failure to
provide visual access to this emergency information an apparent
violation of section 79.2(b)(1)(i).
20. In addition to their incident-specific arguments, the
stations argue generally that the Second Report and Order
provided licensees with discretion to use good faith judgment
regarding the details that they must make visually accessible.49
The stations appear to contend 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 good faith judgments''50 gives them
discretion to determine where and when emergency information
should be presented visually. This contention is wrong. As we
have stated in the past,51 although the rule allows programmers
to exercise discretion as to whether to display non-critical
details of emergency information, programmers must present basic,
critical information about a hurricane emergency such as road
closures, shelters, and evacuation details. The expansive
interpretation of the good faith exception asserted by the
stations in this matter would swallow the rule and render it
wholly ineffective.
IV. FORFEITURE AMOUNT
21. 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.52 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.''53 Based on
our review of the record, we conclude that Waterman and Montclair
are apparently liable for the willful or repeated violation of
our rules.
22. 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. As we have in previous emergency visual access
cases,54 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).55 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. Waterman
and Montclair provided aural emergency information without
providing visual presentation on three occasions, resulting in
three apparent violations of the rule for which we propose a
forfeiture. We therefore propose a forfeiture of $24,000 for
each station. Waterman and Montclair 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.56
V. CONCLUSIONS AND ORDERING CLAUSES
23. We have determined that Waterman Broadcasting, Corp.,
and Montclair Communications, Inc., have 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 they provided to hearing persons
accessible to persons with hearing disabilities, resulting in a
proposed forfeiture of $24,000 for each station.
24. 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 Waterman Broadcasting, Corp., IS HEREBY NOTIFIED of an
Apparent Liability for Forfeiture in the amount of $24,000 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.
25. 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, Waterman Broadcasting, Corp.,
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.57
26. IT IS FURTHERED 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
Montclair Communications, Inc., IS HEREBY NOTIFIED of an
Apparent Liability for Forfeiture in the amount of $24,000 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.
27. 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, Montclair Communications,
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.58
28. 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.
29. 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.
30. 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. 20554.59
31. IT IS FURTHER ORDERED that copies of this Notice of
Apparent Liability for Forfeiture SHALL BE SENT by certified mail
to Steven H. Pontius, Executive Vice President & General Manager,
Waterman Broadcasting, Corp., WBBH-TV, 3719 Central Avenue, Fort
Myers, Florida 33901 and Lara K. Kunkler, President & General
Manager, Montclair Communications, Inc., WZVN-TV, 3719 Central
Avenue, Fort Myers Florida 33091.
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).
4Waterman Broadcasting Corp. and Montclair Communications, Inc.
hereinafter referred to jointly as ``the stations.''
5See 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).
6See HAC Report and Order, 18 FCC Rcd 16753, at para. 5.
7http://www.asha.org/public/hearing/disorders/prevalence_adults.-
htm (visited May 24, 2005) (citations omitted).
847 U.S.C § 613.
9Closed 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'').
1047 C.F.R. § 79.2(b)(1)(i).
11Second Report and Order, 15 FCC Rcd at 6620, para. 11.
12Id. at 6618, para. 8.
13Id. at 6621, para. 11.
14Id. at 6623-24, para. 16.
15See 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).
16Second Report and Order, 15 FCC Rcd 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.
1747 C.F.R. § 79.2(a)(2).
181976 Order, 61 FCC2d 18, at para. 11.
1947 C.F.R. § 79.2(a)(2).
20Second Report and Order, 15 FCC Rcd at 6617, para. 5.
21Note to 47 C.F.R. § 79.2(a)(2) (emphasis added).
2247 C.F.R. § 79.2(a)(2) (emphasis added).
23See, 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 (2004); Public Notice,
``Reminder to Video Programming Distributors of Obligation to
Make Emergency Information Accessible to Persons with Hearing
Disabilities,'' 20 FCC Rcd 5918, (2005).
24See
http://www.cbsnews.com/stories/2004/08/14/national/main636019.sh-
tml, Hurricane Charley Comes Ashore, August 14, 2004 (visited
April 18, 2005).
25Id. Hurricane Charley was classified as a Tropical Storm on
August 11, but was upgraded to a Category 2 Hurricane by 2:00
p.m. on August 12. Hurricane Charley developed into a Category 3
Hurricane by 11:00 a.m. on August 13, and a Category 4 Hurricane
by 2:00 p.m. on August 13. Letter from Steven H. Pontius,
Executive Vice President & General Manager, WBBH-TV, Division of
Waterman Broadcasting, to Janet Sievert, Attorney,
Telecommunications Consumer Division, Enforcement Bureau, FCC, at
n.2 (January 17, 2005) (``Waterman Response Letter'').
26http://www.cnn.com/2004/WEATHER/08/14/storms/+hurricane+Charle-
y, Weather Charley Death Toll at 13, August 15, 2004 (visited
April 18, 2005).
27Waterman provided coverage of Hurricane Charley from August 12
through 20, 2004, while Montclair provided coverage of Hurricane
Charley from August 11 through 19, 2004. Because Waterman's and
Montclair's coverage on August 12 and 13 was during the height of
the emergency, as reflected in the informal complaint, and
Waterman's coverage August 14 through 20 and Montclair's coverage
August 14 through 19 generally dealt with the aftermath of the
hurricane, the Bureau focused its investigation on August 12 and
13. See Waterman Response Letter at 5; Letter from Lara K.
Kunkler, President of Montclair Communications, Inc & General
Manager, WZVN-TV, to Janet Sievert, Attorney, Telecommunications
Consumer Division, Enforcement Bureau, FCC (January 18, 2005
(``Montclair Response Letter''.) See also Informal Complaint,
File No. 04-N93233, filed September 7, 2004 (``Informal
Complaint'')
28See Waterman Response Letter at 2; Montclair Response Letter at
1. Waterman provides programming, advertising and certain other
services to Montclair pursuant to the pre-November 5, 1996 time
brokerage agreement.
29Montclair incorporates by reference Waterman's submission
concerning policies that are implemented jointly by Waterman and
Montclair, videotapes and Attachment 2, for August 13, detailing
the programming carried by both stations. See Montclair Response
Letter at 1 and 3.
30See Informal Complaint.
31Letter from Colleen K. Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau, FCC, to Steven H.
Pontius, Vice President & General Manager, Waterman Broadcasting
Corp., of Florida (November 17, 2004) (``Waterman Letter of
Inquiry''); Letter from Colleen K. Heitkamp, Chief,
Telecommunications Consumers Division, Enforcement Bureau, FCC,
to Lara K. Kunkler, President, Montclair Communications, Inc.
(November 17, 2004)(``Montclair Letter of Inquiry'').
3247 C.F.R. § 79.1(a)(2).
33See, e.g., WBBH-TV Videotapes;
http://www.cnn.com/2004/WEATHER/08/14/storms/index.html, Weather
- Charley Death Toll at 13, August 15, 2004 (visited April 18,
2005).
34See Waterman Response Letter at 5-6. On August 12, Waterman
provided hurricane information during its regularly scheduled
newscasts, newsbreaks throughout the day, one-hour special, and
crawls. Waterman's regularly scheduled newscast aired from 5:00
a.m. to 7:00 a.m., 12:00 p.m. to 1:00 p.m., 4:00 p.m. to 6:30
p.m., and 11:00 p.m. to 11:30 p.m.; regularly scheduled
newsbreaks aired at approximately 8, 26, and 56 minutes after the
hours of 7:00 a.m., 8:00 a.m. and 9:00 a.m.; two to three minute
updates of Hurricane Charley aired during breaks at 11:30 a.m.,
1:29 p.m., 2:00 p.m., 2:30 p.m., 3:00 p.m., 7:00 p.m., 7:30 p.m.,
9:28 p.m., and 9:59 p.m.; the one-hour hurricane special aired
from 8:00 to 9:00 p.m.; the brief information crawls aired at
10:15 a.m., 10:44 a.m., and 11:16 a.m.; the continuous crawl
containing safety and preparedness information began at 11:23
a.m.
35See Montclair Response Letter at 3-4. On August 12, Montclair
provided hurricane information during its regularly scheduled
newscasts, newsbreaks throughout the day, one-hour special, and
crawls. Montclair's regularly scheduled newscast aired from 5:00
a.m. to 7:00 a.m., 6:00 p.m. to 6:30 p.m., and 11:00 p.m. to
11:30 p.m.; regularly scheduled newsbreaks aired at approximately
7:08 a.m., 7:23 a.m., 7:38 a.m., 7:56 a.m., 8:08 a.m., 8:26 a.m.,
8:34 a.m., 8:37 a.m.; six minute news interruptions at 9:26 a.m.,
10:00 a.m., 11:00 a.m., 11:34 a.m., 1:00 p.m., 1:34 p.m., 2:34
p.m., 3:00 p.m., 4:00 p.m., 4:30 p.m., 4:59 p.m., 5:29 p.m., 7:00
p.m., 7:30 p.m., 8:00 p.m., and 10:30 p.m.; the one-hour
hurricane special aired from 9:00 p.m. to 10:00 p.m.; the brief
information crawls aired at 10:15 a.m., 10:44 a.m., and 11:16
a.m.; the continuous crawl containing safety and preparedness
information started at 12:01 a.m., and aired continuously
throughout the day starting at 11:00 a.m.; 45 promotional
announcements aired throughout the day regarding safety and
preparedness techniques and announcing the planned simulcast with
WBBH-TV; and 31 four-second identifiers providing coordinates and
projected track of the hurricane.
36See Waterman Response Letter, VHS Tape #4, 1:21 p.m. August 13,
2004. See also Waterman Response Letter, Attachment 2-e at 19.
We note that Waterman's Response Letter states that this occurred
at 1:24 p.m.; see also Montclair Response Letter, VHS Tape #4,
1:21 p.m. August 13, 2004. See also Montclair Response Letter,
Attachment 2-e at 19.
37Waterman Response Letter, Attachment 2-f at 23; Montclair
Response Letter, Attachment 2-f at 2.
38Waterman Response Letter, Attachment 2-f at 36; Montclair
Response Letter, Attachment 2-f at 36.
39Waterman Response Letter, Attachment 2-f at 23; Montclair
Response Letter, Attachment 2-f at 23.
4047 C.F.R. § 79.2(a)(2).
4147C.F.R. 79.2(a)(2).
42Waterman Response Letter, Attachment 2-f at 34; Montclair;
Response Letter, Attachment 2-f at 34
43Waterman Response Letter, Attachment 2-f at 34-35; Montclair
Response Letter, Attachment 2-f at 34-35.
44Note to 47 C.F.R. § 79.2(a)(2).
45Waterman Response Letter, Attachment 2-f at 38; Montclair
Response Letter, Attachment 2-f at 38.
46Waterman Response Letter, Attachment 2-f at 38; Montclair
Response Letter, Attachment 2-f at 38.
47Waterman Response Letter, Attachment 2-g at 2, 3; Montclair
Response Letter, Attachment 2-g at 2.
4879.2(a)(2).
49Waterman Response Letter at 2, 9, 12, Exhibit 2; see also
Montclair Response Letter at 5 -6.
50Second 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.
51See NBC Telemundo License Co., Licensee of WRC-TV Washington,
D.C., File No. EB-04-TC-101, Notice of Apparent Liability of
Forfeiture, DA 05-1512, at para. 13 (May 2005) (``WRC NAL'').
52Specifically, 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, 19 FCC Rcd 10945 (2004);
(establishing an effective date of September 7, 2004).
53See 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).
54See ACC Licensee, Inc., Licensee of WJLA-TV Washington, D.C.,
File No. EB-04-TC-100, Notice of Apparent Liability of
Forfeiture, DA 05-1511 (May 2005); WRC NAL; Fox Television
Stations, Inc. Licensee of WTTG(TV) Washington, D.C., File No.
EB-04-TC-104, Notice of Apparent Liability of Forfeiture, DA 05-
1513 (May 2005).
55See 47 C.F.R. § 1.80(b)(4).
56See 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3).
57If Waterman 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
Janet Sievert, Senior Attorney, Telecommunications Consumers
Division, at janet.sivert@fcc.gov.
58If Montclair 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
Janet Sievert, Senior Attorney, Telecommunications Consumers
Division, at janet.sivert@fcc.gov.
597 C.F.R. § 1.1914.