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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.