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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB-07-IH-9319
CBS Corporation ) NAL/Acct. No. 200832080007
KUTV Holdings, Inc. ) FRN No. 0003612447
Licensee of Station KUTV(TV), ) FRN No. 0004499273
Salt Lake City, Utah ) Facility ID No. 35823
)
)
)
Order
Adopted: November 21, 2007 Released: November 21, 2007
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and CBS Corporation ("CBS")
as successor-in-interest to Viacom Inc. The Consent Decree terminates
an investigation into compliance by CBS and its wholly owned
subsidiary KUTV Holdings, Inc. ("KUTV"), licensee of station KUTV(TV),
Salt Lake City, Utah, with the terms of the November 23, 2004 Consent
Decree between Viacom, Inc. and the Commission ("2004 Consent
Decree").
2. The Bureau and CBS have negotiated the terms of the Consent Decree, a
copy of which is attached hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree, we find that the
public interest will be served by adopting the Consent Decree and
terminating the above-referenced investigation.
4. Based upon the record before us, we conclude that there are no
substantial and material questions of fact in regard to the
above-referenced investigation as to whether CBS and KUTV possess the
basic qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and the authority delegated by
Sections 0.111 and 0.311 of the Commission's rules, the attached
Consent Decree IS ADOPTED.
6. IT IS FURTHER ORDERED that the objections to the renewal application
of Station KUTV(TV) received by, or in the possession of, the Media
Bureau on or around August 28, 2006, as well as any other similar
pleadings filed against stations licensed to any subsidiaries of CBS,
alleging violation of Section IV, Paragraph 8, Subsection (f) of the
2004 Consent Decree between Viacom Inc. and the Commission in
relation to the Notice of Apparent Liability for Forfeiture issued to
CBS concerning the program "Without A Trace", ARE DISMISSED.
7. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
8. IT IS FURTHER ORDERED that copies of this Order shall be sent by
regular first class mail and by certified mail, return receipt
requested, to CBS Corporation, 601 Pennsylvania Ave., N.W., Suite 540,
Washington, D.C. 20004-2601, and to its counsel, Richard Wiley,
Esquire and Eve Klindera Reed, Esquire, Wiley Rein LLP, 1776 K Street,
N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB-07-IH-9319
CBS Corporation ) NAL/Acct. No. 200832080007
KUTV Holdings, Inc. ) FRN No. 0003612447
Licensee of Station KUTV(TV), ) FRN No. 0004499273
Salt Lake City, Utah ) Facility ID No. 35823
)
)
)
CONSENT DECREE
Adopted: November 21, 2007 Released: November 21, 2007
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. The Enforcement Bureau of the Federal Communications Commission and
CBS Corporation as successor-in-interest to Viacom Inc., by their
authorized representatives, hereby enter into this Consent Decree.
II. DEFINITIONS
9. For purposes of this Consent Decree, in addition to those terms
defined elsewhere in this Consent Decree, the following definitions
shall apply:
a. "CBS" means CBS Corporation, including CBS Broadcasting, Inc., KUTV
Holdings, Inc., and their successors and assigns;
b. "CBS Broadcasting" means CBS Broadcasting, Inc., a wholly owned
subsidiary of CBS Corporation;
c. "KUTV" means KUTV Holdings, Inc., a wholly owned subsidiary of CBS
Corporation;
d. "2004 Consent Decree" means the Consent Decree made and entered into on
November 23, 2004, by and between the Commission and CBS Corporation's
predecessor-in-interest Viacom Inc., including its subsidiaries CBS
Broadcasting Inc., UPN, and Infinity Broadcasting Corporation and their
respective direct and indirect subsidiaries and affiliated entities which
either hold authorizations for television and radio broadcast stations
located throughout the United States or which distribute network or
syndicated television and radio programming to broadcast stations;
e. "Commission" and "FCC" mean the Federal Communications Commission, and
all of its bureaus and offices;
f. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission;
g. "Parties" means the Bureau and CBS;
h. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:
151 et seq.;
i. "Rules" mean the Commission's regulations set forth in Title 47 of the
Code of Federal Regulations;
j. "Indecency Laws" means 18 U.S.C. S: 1464 and 47 C.F.R. S: 73.3999;
k. "Adopting Order" means an order of the Bureau adopting this Consent
Decree;
l. "Effective Date" means the date on which the Adopting Order is
released;
m. "Investigation" means the investigation commenced by the Media Bureau's
June 27, 2007 Letter to Howard F. Jaeckel, Esquire, counsel for CBS
Broadcasting, regarding whether CBS Broadcasting or KUTV violated terms of
the 2004 Consent Decree by failing to comply with the remedial steps
specified in Section IV, Paragraph 8, Subsection (f) of the 2004 Consent
Decree following issuance of the Notice of Apparent Liability for
Forfeiture issued in Complaints Against Various Television Licensees
Concerning Their December 31, 2004, Broadcast of the Program "Without a
Trace," 21 FCC Rcd 2732 (2006);
n. "Final Order" means an action by the FCC or by its staff pursuant to
delegated authority (i) which has not been vacated, reversed, stayed, set
aside, annulled or suspended, (ii) with respect to which no timely appeal,
request for stay or petition for rehearing, reconsideration or review by
any party or by the FCC on its own motion, is pending, and (iii) as to
which the time for filing any such appeal, request, petition, or similar
document or for the reconsideration or review by the FCC on its own motion
under the Communications Act of 1934, as amended, and the FCC's rules and
regulations, has expired.
III. BACKGROUND
10. As a result of the 2004 Consent Decree voluntarily entered into by
Viacom Inc, and its various subsidiaries, including CBS Broadcasting,
the Commission rescinded, vacated and cancelled several forfeiture
orders and notices of apparent liability for forfeiture involving
violations of the Indecency Laws. The 2004 Consent Decree also
terminated several pending indecency investigations. In exchange,
Viacom Inc. made a voluntary contribution of $3.5 million to the
United States Treasury and was obligated to adopt and maintain for
three years a company-wide compliance plan to prevent the broadcast of
material in violation of the Indecency Laws. Paragraph 8, subsection
(f) of this compliance plan required that "[i]f a Viacom-owned station
receives a Notice of Apparent Liability for a broadcast occurring
after the Effective Date which relates to violation of the Indecency
Laws, all employees airing and/or materially participating in the
decision to air such material will be suspended and an investigation
will immediately be undertaken by Viacom. Such employees will be
required to undergo remedial training with respect to the Indecency
Laws and satisfy station management that they understand such laws
before resuming their duties."
11. On March 15, 2006, the Commission issued a Notice of Apparent
Liability for Forfeiture against certain CBS Broadcasting
owned-and-operated and affiliated stations that aired the program
"Without a Trace" on December 31, 2004 before 10:00 p.m ("Without a
Trace NAL"). On August 28, 2006, Andrea Gutton and Sharilee Guest
("Objectors") filed pleadings styled as formal petitions to deny
("Objections") opposing the license renewal application for Station
KUTV(TV), Salt Lake City, Utah, licensed to KUTV Holdings, Inc. The
Objectors alleged, inter alia, that CBS violated the terms of the 2004
Consent Decree because subsequent to the issuance of the Without a
Trace NAL it failed "to immediately suspend all employees materially
participating in the decision to air indecent programming, and launch
an internal investigation. . . ." CBS filed an opposition on January
9, 2007, stating that it had reached a "considered conclusion that it
had presented nothing indecent and that none of its employees had done
anything wrong."
12. On June 27, 2007, the Media Bureau issued a letter directing CBS to
submit a sworn written response to a series of questions relating to
compliance with the 2004 Consent Decree. KUTV responded to the June
27, 2007 letter in the form of an amendment to the license renewal
application for Station KUTV(TV), Salt Lake City, Utah (File Number
BRCT-20060601ASL). The response, dated October 19, 2007, explains that
it was not readily apparent to CBS management or its counsel that the
provisions of Section IV, Paragraph 8, Subsection (f), of the 2004
Consent Decree might apply in the context of scripted shows such as
"Without a Trace." The response also describes various measures CBS
has taken to comply with other provisions of the compliance plan in
the 2004 Consent Decree.
13. CBS and the Bureau acknowledge that any proceeding that might result
from the Investigation will require the significant expenditure of
public and private resources. In order to conserve such resources and
to promote CBS' compliance with the 2004 Consent Decree, the Parties
hereby enter into this Consent Decree in consideration of the mutual
commitments made herein.
IV. AGREEMENT
14. CBS agrees that the Bureau, by delegated authority of the Commission,
has jurisdiction over the matters contained in the Consent Decree and
the authority to enter into and adopt the Consent Decree.
15. CBS and the Bureau each represent and warrant to the other that its
signatory is duly authorized to enter into this Consent Decree on its
behalf.
16. The Parties agree that this Consent Decree will become effective on
the Effective Date. Upon the Effective Date, the Adopting Order and
this Consent Decree will have the same force and effect as any other
order of the Bureau and any violation of the terms of this Consent
Decree will constitute a separate violation of a Bureau order,
entitling the Bureau to subject CBS to enforcement action for such
violation.
17. The Parties agree that the provisions of this Consent Decree shall be
subject to final approval by the Bureau, through entry of the Adopting
Order, which shall immediately resolve and terminate the Investigation
and dismiss the Objections, as well as any other similar pleadings
filed against stations licensed to any subsidiaries of CBS that
pertain to compliance with Section IV, Paragraph 8, Subsection (f) of
the November 23, 2004 Consent Decree in relation to the Without a
Trace NAL.
18. The Parties agree that this Consent Decree is in the nature of a
settlement of all issues relating to the Investigation, does not
constitute an adjudication of the merits of the matters focused upon
in any of the Objections or any finding on the facts or law regarding
any compliance or noncompliance by CBS with the requirements of the
Act or the Commission's Rules and orders; provided, however, that
solely for the purpose of this Consent Decree and in reliance on
fulfillment of the Bureau's commitments hereunder, CBS acknowledges
that it inadvertently failed to comply with the remedial steps
specified in Section IV, Paragraph 8, Subsection (f) of the 2004
Consent Decree as contemplated by the Commission following issuance of
the Without a Trace NAL, understands the 2004 Consent Decree's terms,
and has taken steps to ensure that additional such oversights do not
recur in the future.
19. The Parties agree that Section IV, Paragraph 8 of the 2004 Consent
Decree is amended to provide that the company-wide compliance plan
that CBS adopted pursuant to that paragraph will remain in effect for
an additional term of three (3) years after its current expiration
date, or until November 23, 2010. The Parties agree that all other
provisions of the 2004 Consent Decree remain in full force and effect.
20. CBS agrees that it will make a voluntary contribution to the United
States Treasury in the amount of Three Hundred Thousand Dollars
($300,000) within five (5) calendar days of the date on which the
Order adopting the Consent Decree becomes a Final Order. CBS will make
this contribution without further protest or recourse, 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 in the Adopting Order. Payment by check or money order may
be mailed to the 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 Number 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Routing Number 043000261, receiving bank Mellon Bank, and account
number 9116229.
21. In consideration of the terms and conditions set forth herein, the
Bureau agrees to dismiss the Objections, as well as any other similar
pleadings filed against stations licensed to any subsidiaries of CBS
that pertain to compliance with Paragraph 8, Subsection (f) of the
November 23, 2004 Consent Decree in relation to the Without a Trace
NAL, and terminate the Investigation. The Bureau agrees that it will
not use the facts developed in this Investigation through the
Effective Date of the Consent Decree, or the existence of this Consent
Decree to institute, on its own motion, or in response to any petition
to deny or other third-party objection, any new proceeding, formal or
informal, or take any action on its own motion, or in response to any
petition to deny or other third-party objection, against CBS
concerning the matters that were the subject of the Investigation. The
Bureau also agrees that it will not use the facts developed in this
Investigation through the Effective Date of this Consent Decree, or
the existence of this Consent Decree, to institute on its own motion,
or in response to any petition to deny or other third-party objection,
any proceeding, formal or informal, or take any action on its own
motion, or in response to any petition to deny or other third-party
objection, against CBS with respect to basic qualifications, including
its character qualifications, to be a Commission licensee.
22. The Parties agree that any complaints or pleadings filed with the
Commission or the Bureau, and/or Commission or Bureau investigations,
Notices of Apparent Liability for Forfeiture, Forfeiture Orders, or
Memorandum Opinions and Orders relating to CBS and/or its direct and
indirect subsidiaries that hold Commission authorizations that have
been submitted, begun, or issued subsequent to the effective date of
the 2004 Consent Decree other than the Investigation, as defined
herein, are excluded from the scope of this Consent Decree.
23. CBS waives any and all rights it may have to seek administrative or
judicial reconsideration, review, appeal or stay, or to otherwise
challenge or contest the validity of this Consent Decree and the Order
adopting this Consent Decree, provided that the Bureau issues an Order
adopting the Consent Decree without change, addition, modification or
deletion.
24. CBS' decision to enter into this Consent Decree is expressly
contingent upon the Commission's issuance of an Adopting Order that is
consistent with the Consent Decree, and which adopts the Consent
Decree without change, addition, modification, or deletion.
25. In the event that this Consent Decree is rendered invalid by any court
of competent jurisdiction, it shall become null and void and may not
be used in any manner in any legal proceeding.
26. CBS and the Bureau each agrees that if CBS, the Commission, or the
United States on behalf of the Commission, brings a judicial action to
enforce the terms of the Adopting Order, neither CBS nor the
Commission shall contest the validity of the Consent Decree or Order,
and CBS shall waive any statutory right to a trial de novo.
27. The Parties also agree that if any provision of the Consent Decree
conflicts with any subsequent rule or order adopted by the Commission
(except an order specifically intended to revise the terms of this
Consent Decree to which CBS does not expressly consent) that provision
will be superseded by such Commission rule or order.
28. CBS hereby agrees to waive any claims that it may otherwise have under
the Equal Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S:
1.1501 et seq., relating to the matters addressed in this Consent
Decree.
29. This Consent Decree may be signed in counterparts and/or by telecopy
and, when so executed, the counterparts, taken together, will
constitute a legally binding and enforceable instrument whether
executed by telecopy or by original signatures.
By: __________________________________
Kris Anne Monteith
Chief, Enforcement Bureau
Federal Communications Commission
Date: _________________________________
By: __________________________________
Susan C. Gordon
Senior Vice President, Corporate Controller
& Chief Accounting Officer
CBS Corporation
Date: _________________________________
Viacom, Inc. et al., Order, 19 FCC Rcd 23100 (2004), pet. for recon.
denied, 21 FCC Rcd 12223 (2006).
See 47 U.S.C. S: 154(i).
See 47 C.F.R. S:S: 0.111, 0.311.
Viacom, Inc. et al., Order, 19 FCC Rcd 23100 (2004) ("2004 Consent
Decree"), pet. for recon. denied, 21 FCC Rcd 12223 (2006).
See Letter to Howard F. Jaeckel, Esq., 22 FCC Rcd 11531 (MB 2007).
2004 Consent Decree, 19 FCC Rcd at 23105.
Id. at 23106.
In the Matter of Complaints Against Various Television Licensees
Concerning Their December 31, 2004, Broadcast of the Program "Without a
Trace," Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 2732
(2006).
Objections, at 3.
CBS Opposition, at 2, note 4.
See supra n. 5.
(Continued from previous page)
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