Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No. EB-04-TC-145
Waterman Broadcasting Corp. of )
Florida, Inc. Facility No. 71085
)
Licensee of WBBH-TV NAL/Acct. No. 200532170013
)
Fort Myers, Florida FRN: 0001807965
)
)
) File No. EB-04-TC-150
Montclair Communications, Inc
) Facility ID No. 19183
Licensee of WZVN-TV
) NAL/Acct. No. 200532170014
Naples, Florida
) FRN: 0001733518
ORDER
Adopted: March 7, 2007 Released: March 7, 2007
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau, Waterman Broadcasting Corp. of
Florida, Inc. ("Waterman") and Montclair Communications, Inc.
("Montclair"). The Consent Decree terminates an investigation
initiated by the Enforcement Bureau regarding whether the Stations
violated section 713 of the Communications Act of 1934, as amended
(the "Act"), and section 79.2(b)(1)(i) of the Commission's rules by
failing to make accessible to persons with hearing disabilities
emergency information that it provided aurally in its programming for
WBBH-TV and WZVN-TV during Hurricane Charley, in the Fort Myers-Naples
Designated Market Area during August of 2004.
2. The Enforcement Bureau, and the Stations have negotiated the terms of
a Consent Decree that resolve this matter and terminate the
investigation. A copy of the Consent Decree is attached hereto and
incorporated by reference.
3. After reviewing the terms of the Consent Decree, we find that the
public interest would be served by adopting the Consent Decree and
terminating the investigation. In the absence of material new evidence
relating to this matter, we conclude that our investigation raises no
substantial or material questions of fact as to whether the Stations
posses the basic qualifications, including character qualifications,
to remain a Commission licensee. Furthermore, we find that the Notice
of Apparent Liability issued in this proceeding is null and void.
4. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and the authority delegated by
sections 0.111 and 0.311 of the Commission's rules, that the attached
Consent Decree IS ADOPTED and the Notice of Apparent Liability IS
CANCELLED.
5. IT IS FURTHER ORDERED that the above-captioned investigation into the
matters described herein is terminated.
6. IT IS FURTHER ORDERED that copies of this order shall be sent by
regular first class mail and certified mail - return receipt requested to
Jonathan Blake, Covington & Burling LLP, 1201 Pennsylvania Avenue, NW,
Washington, DC 20004 and Peter Tannenwald, Irwin, Campbell & Tannenwald,
P.C., 1730 Rhode Island Avenue, NW, Suite 200, Washington, DC 20036.
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-04-TC-145
)
Waterman Broadcasting Corp. of Facility ID No. 71085
Florida, Inc. )
NAL/Acct. No. 200532170013
Licensee of WBBH-TV )
FRN: 0001807965
Fort Myers, Florida )
File No. EB-04-TC-150
Montclair Communications, Inc. )
Facility ID No. 19183
Licensee of WZVN-TV )
NAL/Acct. No. 200532170014
Naples, Florida )
FRN: 0001733518
)
CONSENT DECREE
I. Introduction
1. The Enforcement Bureau ("Bureau") of the Federal Communications
Commission (the "FCC" or "Commission") and Waterman Broadcasting Corp. of
Florida, Inc. ("Waterman") and Montclair Communications, Inc.
("Montclair"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
(the "Investigation") regarding whether the Stations complied with section
713 of the Communications Act of 1934, as amended (the "Act"), and section
79.2(b)(1)(i) of the Commission's rules, with respect to the duty to make
accessible to persons with hearing disabilities emergency information that
the Stations provided aurally in their programming for WBBH-TV and WZVN-TV
during Hurricane Charley, in the Fort Myers-Naples Designated Market Area
on August 13, 2004.
II. BACKGROUND
2. On August 13, 2004, Hurricane Charley hit Florida's coast between Fort
Myers and Punta Gorda. The Commission was made aware of allegations that
the Stations failed to make some of the information on Hurricane Charley
that was provided by voice accessible to persons with hearing
disabilities. This failure allegedly deprived hearing impaired viewers of
access to critical emergency information including evacuation orders and
information on what to do to remain safe. The Bureau subsequently launched
an investigation into the Stations' broadcasts carried on WBBH-TV and
WZVN-TV on August 12 and 13, 2004.
III. DEFINITIONS
3. For the Purposes of this Consent Decree, the following definitions
shall apply:
(a) "Act" means the Communications Act of 1934, as amended;
(b) "Bureau" means the Enforcement Bureau of the Federal Communications
Commission;
(c) "Commission" or "FCC" means the Federal Communications Commission;
(d) "Effective Date" means the date on which the Bureau releases the
Adopting Order;
(e) "Emergency Visual Presentation Policy" means the process and
procedures developed by the Stations in an effort to ensure compliance
with the Act and the Rules regarding broadcasting emergency information
for the hearing impaired.
(f) "Extended news coverage of an emergency condition" means news
programming of one half hour or greater duration, other than the Stations'
regularly scheduled news programming, during which emergency information,
as defined in section 79.2 of the Commission's rules, is provided;
(g) "Investigation" means the investigation of the Stations' broadcasts on
August 12 and 13, 2004;
(h) "Waterman" means Waterman Broadcasting Corp. of Florida, Inc.
licensee of WBBH-TV, Fort Myers, Florida, and any affiliate, d/b/a,
predecessor-in-interest, parent companies and any direct or indirect
subsidiaries of such parent companies, or other affiliated companies or
businesses, and their successors and assigns;
(i) "Montclair" means Montclair Communications, Inc. licensee of WZVN-TV,
Naples, Florida, and any affiliate, d/b/a, predecessor-in-interest, parent
companies and any direct or indirect subsidiaries of such parent
companies, or other affiliated companies or businesses, and their
successors and assigns;
(j) "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms and conditions of this Consent Decree without change, addition, or
modification, and formally terminating the above-captioned Investigation;
(k) "Parties" means Waterman, Montclair and the Bureau;
(l) "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations; and
(m) "Stations" means Waterman and Montclair serving the Fort Myers-Naples
Designated Market Area.
IV. AGREEMENT
4. The Stations agree that the Bureau has jurisdiction over them and the
subject matter contained in this Consent Decree and the authority to enter
into and adopt this Consent Decree.
5. The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement between them concerning the Investigation.
In express reliance on the covenants and representations contained herein,
and to avoid the potential expenditure of additional public resources, the
Bureau agrees to terminate the Investigation. In consideration for the
termination of this Investigation and in accordance with the terms of this
Consent Decree, the Stations agree to the terms, conditions, and
procedures contained herein.
6. The Parties agree that this Consent Decree does not constitute either
an adjudication on the merits or a factual or legal finding regarding any
compliance or noncompliance by the Stations with the requirements of the
Act and the Rules. The Parties agree that this Consent Decree is for
settlement purposes only and that by agreeing to this Consent Decree, the
Stations do not admit or deny any non-compliance or violation of the Act
or the Commission rules in connection with the matters that are the
subject of this Consent Decree.
7. The Parties agree that the provisions of this Consent Decree shall be
subject to final approval by the Bureau by incorporation of such
provisions by reference in an Order.
8. The Parties agree that this Consent Decree shall become effective on
the Effective Date and shall have the same force and effect as any other
order of the Commission. Any violation of the terms of this Consent Decree
shall constitute a separate violation of a Commission order, entitling the
Commission to exercise any rights and remedies attendant to the
enforcement of a Commission order.
9. The Bureau agrees that it shall terminate the Investigation. The Bureau
agrees that, in the absence of new material evidence, it will not on its
own motion initiate any inquiries, investigations, forfeiture proceedings,
hearings, or other sanctions or actions against the stations, based in
whole or in part on the Investigation or any complaints alleging
violations of section 79.2 relating to the coverage the Stations provided
of Hurricane Charley during August of 2004. The Bureau agrees that, in
absence of material new evidence, it will not initiate or recommend to the
Commission any new proceeding, formal or informal, regarding the matters
that were subject of the Investigation. The Bureau further agrees that, in
the absence of material new evidence, it will not use the facts developed
in this Investigation prior to the Effective Date to initiate on its own
motion, or recommend to the Commission, any proceeding, formal or
informal, or take any action on its own motion against the Stations with
respect to their basic qualifications to be or remain a Commission
licensee.
10. In consideration for the termination of the Investigation, the
Stations will implement within thirty (30) days of the Effective Date and
maintain the following Emergency Visual Presentation Policy, which will be
overseen by the Stations' News Directors:
(a) It shall be the policy of Waterman to closed caption the regularly
scheduled local news and emergency information set forth below. Pursuant
to this policy, Waterman will contract with a reputable real-time closed
captioning service provider and/or acquire a voice recognition system to
provide real-time closed captioning for said regularly scheduled newscasts
and emergency information presented on WBBH-TV:
(1) Monday- Friday News Broadcast at 6:00-7:00 a.m., 6:00-6:30 p.m.,
11:00-11:30 p.m., and,
(2) Any "extended news coverage of an emergency condition" affecting the
Fort-Myers-Naples Designated Market Areas.
(b) It shall be the policy of Montclair to closed caption the regularly
scheduled local news and emergency information set forth below. Pursuant
to this policy, Montclair or Waterman on behalf of Montclair will contract
with a reputable real-time closed captioning service provider and/or
acquire a voice recognition system to provide real-time closed captioning
for said regularly scheduled newscasts and emergency information presented
on WZVN-TV:
(1) Monday- Friday News Broadcast at 6:00-6:30 p.m., 11:00-11:30 p.m.,
and,
(2) Any "extended news coverage of an emergency condition" affecting the
Fort-Myers-Naples Designated Market Areas.
(c) It shall be the policy of the Stations to closed caption all emergency
information broadcast outside a regularly scheduled newscast if such
information is conveyed via the Station's audio. However, pursuant to the
Emergency Visual Presentation Policy, if captioning services are not
immediately available or if captioning services cannot be immediately
secured, the Stations will make the critical details of the emergency
information accessible by other visual means, such as crawls, scrolls, or
handwriting on a blackboard, and will continue to do so until captioning
begins. In any event, captioning must be provided, as set forth above,
within the first thirty (30) minutes of any "extended news coverage of an
emergency condition," consistent with the Commission's rules and policies.
Emergency information will include any information relating to an imminent
or ongoing emergency, as described in Section 79.2 of the Commission's
rules, affecting the Station's viewers that is intended to protect life,
health, or property;
(d) Each Station will distribute, at least every six (6) months, the
Station's Emergency Visual Presentation Policy to all employees;
(e) Each Station will incorporate the Station's Emergency Visual
Presentation Policy into the Station's regular news employee training
session;
(f) Pursuant to the Emergency Visual Presentation Policy, each Station
will promptly commence captioning, or contact its captioning service,
before or contemporaneously with any broadcast coverage of a pending or
imminent emergency that endangers the Station's viewers and will make its
best reasonable efforts to ensure that coverage of the emergency is
captioned as soon as possible. As set forth above, captioning must be
provided within the first thirty (30) minutes of any "extended news
coverage of an emergency condition," consistent with the Commission's
rules and policies. Consistent with Section 79.2 of the Commission's
rules, during any time that captioning is not immediately available to
caption the newscast or breaking news report, the Stations will make the
critical details of the emergency information accessible by other visual
means, such as crawls, scrolls, or handwriting on a blackboard;
(g) Pursuant to the Emergency Visual Presentation Policy, each Station
will maintain visible postings on television monitors in the Station's
newsroom that remind employees to promptly contact the Station's
captioning service during emergency events, and such postings will include
the phone number for that service;
(h) Each Station will maintain a labeled speed-dial button to the
Station's captioning service on telephones on the Station's newsroom
assignment desk and in each respective master control;
(i) Each Station shall consult with organizations representing deaf and
hard of hearing persons on a yearly basis as a part of the ongoing
assessment of how the Stations are meting the needs of their hearing
impaired viewers. These consultations will include discussions of how the
Stations can best serve the needs of the hearing impaired viewers for
emergency information;
(j) Each year, on or before the commencement of the hurricane season, each
Station's management shall review with the Station's staff emergency
procedures and processes to ensure the Stations are prepared to provide
emergency information to hearing impaired viewers; and
(k) Each Station will incorporate in their Emergency Visual Presentation
Policy each of the above elements, as well as others. The Stations will
incorporate the Emergency Visual Presentation Policy in to their Disaster
Preparedness Plan.
11. In consideration for the termination of the Investigation, and in
accordance with the terms of this Consent Decree, the Stations will each
make a voluntary contribution to the United States Treasury without
further protest or recourse to a trial de novo in the amount of eighteen
thousand dollars ($18,000) within thirty (30) calendar days after the
Effective Date. The Stations must make this payment by check or similar
instrument, payable to the order of the Federal Communications Commission.
The payment must include the Acct. No. and FRN referenced above. Payment
by check or money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box 358340,
Pittsburgh, Pennsylvania, 15251. Payment by overnight mail may be sent to
Mellon Client Service, 500 Ross Street, Room 670, Pittsburgh, PA,
15262-0001, Attention: FCC Module Supervisor. Payment by wire transfer may
be made to ABA Number 043000261, account number 911-6229. Please include
your NAL/Acct No. in your transfer.
12. The Stations' decision to enter into this Consent Decree is expressly
contingent upon the Bureau's issuance of an Order that is consistent with
this Consent Decree, and which adopts the Consent Decree without change,
addition or modification.
13. The Stations waive any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or to
otherwise challenge or contest the validity of this Consent Decree and the
Order, provided the Bureau issues an Order adopting the Consent Decree
without change, addition or modification.
14. If any Party (or the United States on behalf of the FCC) brings a
judicial action to enforce the terms of the Order, neither the Stations
nor the FCC shall contest the continuing validity of the Consent Decree or
Order. The Stations and the Commission further agree that they will waive
any statutory right to a trial de novo with respect to any matter upon
which the Order is based (provided in each case that the Order is limited
to adopting the Consent Decree without change, addition, or modification),
and that they will consent to a judgment incorporating the terms of this
Consent Decree.
15. In the event that this Consent Decree is rendered invalid by any court
of competent jurisdiction, this Consent Decree shall become null and void
and may not be used in any manner in any legal proceeding.
16. The Parties agree that if any provision of this Consent Decree
conflicts with any subsequent rule or order adopted by the Commission
(except an order specifically intended to revise the terms of this Consent
Decree to which the Stations do not consent), that provision will be
superceded by such Commission rule or order.
17. By this Consent Decree, the Stations do not waive or alter their right
to assert and seek protection from disclosure of any privileged or
otherwise confidential and protected documents and information, or to seek
appropriate safeguards of confidentiality for any competitively sensitive
or proprietary information.
18. The Parties agree that the requirements of this Consent Decree shall
expire thirty-six (36) months from the Effective Date.
19. This Consent Decree may be signed in counterparts and/or by telecopy
and, when so executed, the counterparts, taken together, will constitute a
legally binding and enforceable instrument whether executed by telecopy or
by original signatures.
For the Enforcement Bureau For Waterman Broadcasting Corp. of Florida,
Inc.
By: ______________________________ By: ______________________________
Kris Anne Monteith Steven H. Pontius
Chief Executive Vice President
______________________________ ______________________________
Date Date
For Montclair Communications, Inc.
By: ______________________________
Lara W. Kunkler
President
______________________________
Date
Hereinafter referred to as the Stations.
47 U.S.C. S 613.
47 C.F.R. S 79.2(b)(1)(i).
Waterman Broadcasting Corp. of Florida, Inc., Montclair Communications,
Inc., Notice of Apparent Liability, 20 FCC Rcd 13534.
47 U.S.C. S 154(i).
47 C.F.R. SS 0.111, 0.311.
Hereinafter referred to as the Stations.
47 U.S.C. S 613.
47 C.F.R. S 79.2(b)(i).
Federal Communications Commission DA 07-914
- 2 -
Federal Communications Commission DA 07-914