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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
) File No. EB-06-IH-3489
In the Matter of
) NAL/Acct. No.
SONSHINE FAMILY TELEVISION, INC. 200832080001
)
Licensee of Station WBPH-TV Facility ID No. 60850
)
Bethlehem, Pennsylvania FRN: 0006620066
)
SINCLAIR BROADCAST GROUP, INC. File No. EB-06-IH-3486
)
Licensee of Stations WABM(TV), NAL/Acct. No.
Birmingham, Alabama, WVTV(TV), ) 200832080003
Milwaukee, Wisconsin, WUXP-TV,
Nashville, Tennessee, KOCB(TV), WEAR-TV, ) Facility ID Nos. 16820,
Pensacola, Florida, WPMY(TV), 74174, 9971, 50170,
Pittsburgh, Pennsylvania, KABB(TV), San ) 71363, 73907, 56528,
Antonio, Texas, WTWC-TV, Tallahassee, 66908, and 33336
Florida, and former licensee of KSMO-TV, )
Kansas City, Missouri FRN: 0004331096
)
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 27, 2007 Released: October 18, 2007
By the Commission: Commissioners Adelstein and Copps issuing a joint
statement.
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture, we find Sonshine
Family Television, Inc. ("Sonshine"), licensee of Station WBPH-TV,
Bethlehem, Pennsylvania, apparently liable for a forfeiture in the
amount of forty thousand dollars ($40,000) for willfully and
repeatedly violating Section 317(a)(1) of the Communications Act of
1934, as amended ("Act"), and Section 73.1212(a) of the Commission's
rules. These provisions generally require a licensee to make
sponsorship identification announcements whenever its station
broadcasts matter in return for money, service, or other valuable
consideration. We find that Sonshine, in exchange for consideration,
broadcast five episodes of the program "The Right Side with Armstrong
Williams" ("RSAW") on a total of ten occasions during the period
January 4, 2004, through July 5, 2004, without airing the required
sponsorship identification announcements.
2. We also find Sinclair Broadcast Group, Inc. ("Sinclair"), ultimate
parent of the licensees of Stations WABM(TV), Birmingham, Alabama,
KSMO-TV, Kansas City, Missouri, WVTV(TV), Milwaukee, Wisconsin,
WUXP-TV, Nashville, Tennessee, KOCB(TV), WEAR-TV, Pensacola, Florida,
WPMY(TV), Pittsburgh, Pennsylvania, KABB(TV), San Antonio, Texas, and
WTWC-TV, Tallahassee, Florida, apparently liable for a forfeiture in
the amount of thirty-six thousand dollars ($36,000) for willfully and
repeatedly violating Section 73.1212(d) of the Commission's rules.
That section provides that whenever a licensee is furnished with "any
film, record, transcription, talent, script or other material or
service . . ." for use in connection with the broadcast of political
matter or the discussion of a controversial issue of public
importance, the licensee must make sponsorship announcements
identifying the party or parties furnishing the materials or services.
We find that the above-captioned Sinclair stations broadcast an
episode of the program "America's Black Forum," ("ABF") entitled "2004
Election Countdown," on September 11 or 12, 2004, without airing the
sponsorship identification announcements required by this section.
II. BACKGROUND
A. Sponsorship Identification Law
3. Section 317(a)(1) of the Act and Section 73.1212(a) of the
Commission's rules establish the general obligation of a broadcast
station to air sponsorship identification announcements whenever any
"money, service or other valuable consideration" is paid or promised
to the station for the broadcast of program material. Specifically,
Section 317(a)(1) provides:
All matter broadcast by any radio station for which any money, service or
other valuable consideration is directly or indirectly paid, or promised
to or charged or accepted by, the station so broadcasting, from any
person, shall, at the time the same is so broadcast, be announced as paid
for or furnished, as the case may be, by such person: Provided, That
"service or other valuable consideration" shall not include any service or
property furnished without charge or at a nominal charge for use on, or in
connection with, a broadcast unless it is so furnished in consideration
for an identification in a broadcast of any person, product, service,
trademark, or brand name beyond an identification which is reasonably
related to the use of such service or property on the broadcast.
4. Section 73.1212(a) of the Commission's rules implements Section
317(a)(1) of the Act. Section 73.1212(a) of the Commission's rules
states:
When a broadcast station transmits any matter for which money, service, or
other valuable consideration is either directly or indirectly paid or
promised to, or charged or accepted by such station, the station, at the
time of the broadcast, shall announce:
(1) That such matter is sponsored, paid for, or furnished, either in whole
or in part, and
(2) By whom or on whose behalf such consideration was supplied: Provided,
however, That "service or other valuable consideration" shall not include
any service or property furnished without or at a nominal charge for use
on, or in connection with, a broadcast unless it is so furnished in
consideration for an identification of any person, product, service,
trademark, or brand name beyond an identification reasonably related to
the use of such service or property on the broadcast.
The proviso components of Section 73.1212(a)(2) and of Section 317(a)(1)
of the Act exempt stations from making sponsorship announcements in
certain circumstances, but these provisos do not apply when the
consideration paid or promised to a station is in the form of "money." The
Commission has noted that the sponsorship identification rules are
"grounded in the principle that listeners and viewers are entitled to know
who seeks to persuade them" and has warned that it would take enforcement
action against broadcast stations and cable operators that did not comply
with its rules.
5. The sponsorship identification rules impose upon broadcast licensees a
greater obligation of disclosure in connection with political material
and program matter treating controversial issues. The Commission has
noted that, particularly in the case of such programming, audience
members are "entitled to know when the program ends and the
advertisement begins." Thus, while the provisos to Section 317(a)(1)
of the Act and Section 73.1212(a) of our rules provide generally that
no sponsorship identification announcement is necessary if
broadcast-related materials or services are supplied to a station free
of charge or at a nominal charge, Section 317(a)(2) authorizes the
Commission to require sponsorship announcements for any materials or
services that are furnished for use in political or controversial
issue programming without regard to whether they were provided at no
charge or at a nominal charge. The Commission has exercised this
authority in adopting Section 73.1212(d), which provides:
In the case of any political broadcast matter or any broadcast matter
involving the discussion of a controversial issue of public importance for
which any film, record, transcription, talent, script, or other material
or service of any kind is furnished, either directly or indirectly, to a
station as an inducement for broadcasting such matter, an announcement
shall be made both at the beginning and conclusion of such broadcast on
which such material or service is used that such film, record,
transcription, talent, script, or other material or service has been
furnished to such station in connection with the transmission of such
broadcast matter: Provided, however, That in the case of any broadcast of
5 minutes' duration or less, only one such announcement need be made
either at the beginning or conclusion of the broadcast.
6. The Commission applies the same standard for determining whether a
broadcast matter involves "a controversial issue of public importance"
as it applied under the fairness doctrine. "[G]iven the limitless
number of potential controversial issues and the varying circumstances
in which they might arise," the Commission approaches this
determination on a case-by-case basis. Consistent with the First
Amendment, the Commission relies heavily on licensees' editorial
judgment, and the scope of its review is limited to determining
whether a licensee has acted reasonably and in good faith in
determining whether material is or is not subject to the special
disclosure rule for matter involving controversial issues of public
importance. The inducement component of the rule is satisfied whenever
material is provided to a broadcaster at no or nominal charge.
B. Free Press Complaint and Investigations
7. In early January 2005, Free Press and several thousand other
complainants wrote requesting that the Commission investigate alleged
payola violations involving Armstrong Williams ("Williams"). The
complaints, citing national news reports, contended that Williams was
paid by the Department of Education ("DoEd") to promote the No Child
Left Behind Act ("NCLB") in broadcast programming that he produced or
in which he appeared without disclosing that fact to viewers or to the
stations involved. Many of the complaints identified numerous
broadcast stations reported to have aired such NCLB-related
programming, which included the show "The Right Side with Armstrong
Williams."
8. On February 14, 2005, the Enforcement Bureau ("Bureau") issued letters
of inquiry to Armstrong Williams' media company, Graham Williams Group
("GWG"), and to public-relations firm Ketchum, Inc. ("Ketchum").
Ketchum was the prime contractor with DoEd in connection with that
department's campaign to promote NCLB and GWG was a subcontractor of
Ketchum's in that endeavor. The LOIs directed the respondents to
answer a number of questions and produce a variety of documents
relevant to matters raised in the complaints. In their responses, GWG
and Ketchum provided documentary and other evidence that included more
than one-hundred hours of recorded programs containing NCLB
advertisements or discussion and commentary concerning NCLB during
episodes of RSAW, hosted by Williams, and during the program
"America's Black Forum" ("ABF"), on which Williams appeared as a
guest.
9. After reviewing this evidence, the Bureau identified those episodes in
which discussions of NCLB topics took place during the programs, but
no sponsorship disclosures appeared to have been made. The Bureau
thereafter issued further letters of inquiry to licensees named in the
complaints or identified by Williams to determine, among other things,
whether their stations aired such NCLB-related programming, as
alleged, and if so, whether the stations disclosed the identity of the
sponsor of such programming during their broadcasts. Sonshine and
Sinclair were among the owners to which the Bureau directed a further
LOI.
10. In its response, Sonshine denies that Station WBPH-TV aired ABF but
acknowledges that the station aired five different episodes of RSAW
entitled "What is Faith," "Year End Review," "Young Americans in
Government," "National Security," and "On Point with Rod Paige," on a
total of ten occasions during the period January 4, 2004, through July
5, 2004. During these episodes Williams discussed the NCLB program.
Based on its inability to "produce actual records concerning these
particular programs," Sonshine opines that "in all likelihood" its
station aired them without including any sponsorship identification,
because it believed no identification was necessary. Sonshine
acknowledges, however, that its agreement with Williams "call[ed] for
payment of a nominal fee of $100 to [it] for each broadcast," which
Sonshine implies is not cognizable due to the allegedly modest amount
involved. Sonshine further claims that it was neither informed by GWG
nor made aware that anyone else received or was promised consideration
for the inclusion of any message intended for broadcast. Thus,
Sonshine argues that it had no basis on which to conclude that a
sponsorship announcement was required for the programming. Finally,
Sonshine contends that the broadcast presentations as a whole make
clear that GWG was the material's sponsor in each case, and that its
failure to include specific disclosures announcing that the program
was "paid for" and/or "sponsored" by GWG was harmless.
11. In its response, Sinclair denies that any of its stations aired RSAW
but acknowledges that nine of its stations aired an episode of ABF
entitled "2004 Election Countdown," taped September 8, 2004, during
which Williams discussed the NCLB program. Sinclair admitted that
these stations aired this episode of ABF without including any
sponsorship identification. Sinclair argues, however, that no such
identification was required. In this regard, Sinclair states that it
neither received nor was promised any consideration for the material's
broadcast. Rather, it states that its staff's decision to air such
material reflected its own "independent and uncompensated decision."
Moreover, Sinclair asserts that it had no actual knowledge or any
reason to believe that anyone had received or been promised
consideration for inclusion of material in the program that it aired.
Sinclair concludes that "it simply did not know, and had no reason to
know, that the program required any identification . . . ."
III. Discussion
12. Under Section 503(b)(1) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any rule, regulation, or order issued by
the Commission shall be liable to the United States for a monetary
forfeiture penalty. To impose such a forfeiture penalty, the
Commission must issue a notice of apparent liability, and the person
against whom the notice has been issued must have an opportunity to
show, in writing, why no such forfeiture penalty should be imposed.
The Commission will then issue a forfeiture if it finds by a
preponderance of the evidence that the person has violated the Act or
a Commission rule. We conclude under this standard that Sonshine is
apparently liable for a forfeiture for its willful and repeated
violation of Section 317(a)(1) of the Act and Section 73.1212(a) of
the Commission's rules and that Sinclair is apparently liable for a
forfeiture for its willful and repeated violation of Section
73.1212(d) of the Commission's rules.
13. Sonshine. Both Section 317(a)(1) of the Act and Section 73.1212(a) of
the Commission's rules expressly provide that broadcast stations must
identify the sponsor of material whenever they accept "money, service
or other valuable consideration" to air the material. Sonshine
concedes that it received money in exchange for the broadcast of the
five RSAW episodes identified above, but implies that the nominal
amount of the payment - $100 per broadcast - excuses it from making a
sponsorship announcement. To the extent Sonshine takes this position,
it is unavailing. The duty to provide a sponsorship announcement where
money is exchanged for airtime is part of the primary obligation
stated in Section 317(a)(1) of the Act and Section 73.1212(a) of the
Commission's rules. The provisos to these sections, which afford a
limited exception to the announcement duty, operate by excluding
certain classes of "service or other valuable consideration" from
triggering the obligation. Specifically, they provide that the terms
"service or other valuable consideration" as used in these sections
"shall not include any service or property furnished without charge or
at a nominal charge...." Notably, the term "money," which is named as
a form of consideration that would oblige a station to air a
sponsorship announcement, is not mentioned in the provisos. Moreover,
unlike the provisos, the primary obligation stated in Section
317(a)(1) of the Act and Section 73.1212(a) of the Commission's rules
recognizes no exception for "nominal" monetary payments. On the
contrary, the statute requires sponsorship identification where a
broadcaster is paid "any money, service or other valuable
consideration." We conclude that the receipt of money in exchange for
the broadcast of material requires a sponsorship announcement
regardless of whether the amount could be considered nominal or not.
14. Moreover, we do not agree that the overall presentations of the RSAW
episodes obviated the need for Sonshine to provide identification
announcements in the form specified under the rules. A sponsorship
identification announcement must state in language understandable to a
majority of the audience that the station has received consideration
for the matter broadcast and from whom that consideration was
received.
15. According to Section 73.1212(a)(1), the station shall announce "[t]hat
such matter is sponsored, paid for or furnished, in whole or in part."
In addition under Section 73.1212(a)(2)(i): "For the purposes of this
section, the term `sponsored' shall be deemed to have the same meaning
as `paid for.'" Thus, the Commission has found that the phrase
"sponsored by" may be used in place of "paid for," but no other
substitute words or phrases have been specifically allowed. In
addition, the term "presented by" is subject to differing
interpretations which could lead to public confusion or
misunderstanding. Thus, the term "presented by" does not clearly
inform the audience that it is hearing or viewing matter which has
been paid for. Moreover, the Commission has ruled that use of
"promotional fees furnished by" is not sufficient. Thus, due to the
potential confusion and harm caused by alternative types of
identification, the permissible forms of identification are narrowly
drawn. In view of the foregoing, we find no merit to Sonshine's
argument that the programs' overall presentations, which included
identification of the program title, participants, and production
company, made clear to viewers that those entities were also the
material's sponsors. Consequently, we find that the broadcasts in
question lacked appropriate sponsorship identification.
16. We conclude that Sonshine willfully and repeatedly violated Section
317(a)(1) of the Act and Section 73.1212(a) of the Commission's rules
by airing the RSAW episodes "What is Faith," "Year End Review," "Young
Americans in Government," "National Security," and "On Point with Rod
Paige," over Station WBPH-TV without airing the proper sponsorship
identification. The imposition of a monetary forfeiture to redress of
these failures is appropriate.
17. Sinclair. As noted above, Section 73.1212(d) of the Commission's rules
makes clear that broadcast stations must identify the sponsor of any
materials or services furnished for use in connection with "any
political broadcast matter or any broadcast matter involving the
discussion of a controversial issue of public importance . . . ." In
this case, Williams and GWG provided Sinclair with a complete program
for broadcast on its stations and that program, entitled "2004
Election Countdown," consisted, in substantial part, of partisan
representatives and commentators analyzing and debating various issues
central to the presidential campaign then underway, as well as clips
of the candidates themselves making political statements at their
respective parties' conventions. Based on these characteristics, we
find that this program material was furnished for use in connection
with "political broadcast matter" within the meaning of Section
73.1212(d) of the Commission's rules. Accordingly, during each
broadcast, Sinclair was obliged to air announcements indicating that
the program was furnished by Williams, irrespective of whether it was
provided to Sinclair without charge. We conclude that Sinclair
willfully and repeatedly violated Section 73.1212(d) of the
Commission's rules by airing the ABF episode "2004 Election Countdown"
over its stations on the respective dates noted above without airing
proper sponsorship identification and that the imposition of a
monetary forfeiture in redress of these failures is appropriate. In
this regard, we observe that the Commission has placed particular
importance on a licensee's obligation to identify to its viewers any
and all sponsors of politically related messages.
18. Forfeitures. The Commission's Forfeiture Policy Statement sets a base
forfeiture amount of $4,000 for sponsorship identification violations.
After considering the record and all of the factors contained in
Section 503(b)(2)(D) of the Act, 47 U.S.C. S: 503(b)(2)(D), and the
Forfeiture Policy Statement, we believe a forfeiture of $40,000 is
appropriate for Sonshine's violations. This represents the base amount
for each of the ten broadcasts by WBPH-TV of the referenced RSAW
episodes. After similar consideration, we believe a $36,000 forfeiture
is appropriate for Sinclair's violations. This represents the base
amount for the single broadcast of the ABF program over each of the
nine above-captioned Sinclair stations on September 11 or 12, 2004.
I. Ordering clauses
19. ACCORDINGLY, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's rules, Sonshine is hereby NOTIFIED of its
APPARENT LIABILITY FOR FORFEITURE in the amount of Forty Thousand
Dollars ($40,000) for willfully and repeatedly violating Section
317(a)(1) of the Act and Section 73.1212(a) of the Commission's rules.
20. IT IS FURTHER ORDERED THAT, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's rules, Sinclair is hereby NOTIFIED of its
APPARENT LIABILITY FOR FORFEITURE in the amount of Thirty-Six Thousand
Dollars ($36,000) for willfully and repeatedly violating Section
73.1212(d) of the Commission's rules.
21. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's rules, within thirty days of the release of this Notice,
Sonshine and Sinclair SHALL EACH PAY to the United States the full
amount of the proposed forfeitures or SHALL EACH FILE a written
statement seeking reduction or cancellation of the proposed
forfeitures.
22. Payment of the forfeitures must be made by mailing check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment MUST INCLUDE the respective FCC Registration
Number ("FRN") and the NAL/Account Number for the payor specified in
the caption of this NAL. Payment by check or money order may be mailed
to Federal Communications Commission P.O. Box 358340 Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon Bank/LB
358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment
by wire transfer may be made to ABA Number 043000261, receiving bank
Mellon Pittsburgh, and account number BNF: FCC/ACV--9116229.
23. Each response, if any, must be mailed to Hillary S. DeNigro, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W, Room 4-C330,
Washington, D.C. 20554 and MUST INCLUDE the respective NAL/Acct. No.
for the responding party referenced above.
24. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the respondent 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 respondent'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.
25. Requests for payment of the full amount of the NAL under an
installment plan should be sent to: Associate Managing Director -
Financial Operations, 445 12th Street, S.W., Room 1A625, Washington,
D.C. 20554.
26. IT IS FURTHER ORDERED THAT a copy of this Notice SHALL BE SENT, by
Certified Mail/Return Receipt Requested, to Sonshine Family
Television, Inc., 813 N. Fenwick Street, Allentown, Pennsylvania
18109, and to its counsel, J. Geoffrey Bentley, Esq., 2700 Copper
Creek Road, Oak Hill, Virginia 20171, and to Sinclair Broadcast Group,
Inc., Pillsbury Winthrop Shaw Pittman LLP, 2300 N Street, N.W.,
Washington, D.C. 20037-1128, and to its counsel, Kathryn R.
Schmeltzer, Esq., and Paul A. Cicelski, Esq., at the same address.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
JOINT STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN AND COMMISSIONER MICHAEL J. COPPS
In the Matter of Sonshine Family Television, Inc, and Sinclair Broadcast
Group, Inc., Notice of Apparent Liability for Forfeiture
Growing abuses of the public trust in recent years are shaking Americans'
confidence in the press. When pundits are paid to promote a corporate or
government agenda while the public is never told, all commenters and
journalists become suspect. The repeated revelations of advertisers paying
their way onto news programming without disclosure undercut the
credibility of all journalists. When budget cuts in newsrooms lead
broadcasters to substitute advertisements disguised by slick public
relations firms as news instead of paying for their own work, viewers and
listener wonder what they can believe. When newsrooms are too strapped or
sloppy to perform their due diligence and provide disclosure
announcements, as required by law, it leads to a crisis of confidence.
So we now face a crisis in American journalism. That is why today's action
by the Commission is so important. It sends a clear message that the
public has a right to know who is trying to persuade them so they can make
up their own minds about what is presented to them.
While some will try to turn this into a First Amendment issue, sponsorship
identification in no way requires anyone to limit anything they
communicate. On the contrary, it requires more speech, not less. The only
reason it can be construed as limiting expression is because broadcasters
and cable operators are too embarrassed to reveal who paid to produce or
espouse material they are pretending is their own product. In fact,
established ethical guidelines, which are routinely ignored, call for just
such disclosure. The reticence to disclose, or to otherwise refrain from
using material paid for by a sponsor, is not a restraint upon free
expression.
Today, with the release of this Notice of Apparent Liability for
Forfeiture, the Commission again puts broadcasters and cable operators on
notice that the public deserves a clear statement on whether or not the
programming they are watching is sponsored by a government or corporate
interest.
This Forfeiture Notice reinforces the rule that the Commission's
disclosure obligations do not only apply to broadcasters. Rather, the
Commission is serious about applying the rules to everyone up and down the
chain of production and distribution. Today, the Commission places
broadcasters, producers and distributors on notice. Each and every
individual has a duty to report the real source of any programming on
television or radio. Employers and employees must ensure the audience
knows where the programming they are watching originated or who paid for
it. The argument that the overall presentation of the material obviates
the need to provide sponsorship identification announcements is
unavailing. Under our clear rules, any consideration must be revealed to
the audience.
Failure to disclose Armstrong Williams was paid by the Department of
Education to promote an agenda on the air by itself violates Federal law.
On top of that, without making a positive or negative judgment of the
content aired, we find that in the instant case a licensee could not, in
good faith, consider the material to be "anything but political." The
Commission has already concluded that electoral issues are presumptively
controversial and of public importance. In fact, we both struggle to find
an issue more important to many parents than their child's education. We
feel it is not too much of a stretch for programmers to understand what is
a political issue and what is not. Broadcasters should strive to present
independent and honest broadcasting, and should ethically desire to be
forthcoming and open about where its programming is coming from.
The integrity of the press is of paramount importance to any democracy. As
the Commission has clearly warned, audience members must be able to tell
where the program they are watching ends and the paid advertisement
begins. Today's Forfeiture Notice reaffirms the affirmative legal
obligation of broadcasters to alert the public to any payola punditry and
places the industry on notice that the Commission will act to ensure the
public is protected from special interest groups who attempt to trick the
public.
While this action is overdue, we are pleased the Commission takes this
issue seriously. This Forfeiture Notice demonstrates how important it is
for broadcast stations to clearly announce any sponsors furnishing
material or services, particularly for use in connection with the
broadcast of political material or discussion of a controversial issue of
public importance. Accordingly, we speak in a unanimous voice.
47 U.S.C. S: 317(a)(1).
47 C.F.R. S: 73.1212(a).
Sinclair is the ultimate parent of the respective television station
licensees Birmingham (WABM-TV) Licensee, Inc; WVTV Licensee, Inc; WUXP
Licensee, LLC; KOCB Licensee, LLC; WEAR Licensee, LLC; WCWB Licensee, LLC;
KABB Licensee, LLC; and WTWC Licensee, LLC. KSMO-TV was licensed to a
Sinclair-controlled entity at the time of the relevant broadcasts.
47 C.F.R. S: 73.1212(d).
47 U.S.C. S: 317(a)(1).
47 C.F.R. S: 73.1212. The Commission's rules also contain additional
requirements designed to implement and provide greater specificity for the
other requirements in Section 317. Section 76.1615 establishes many of
these requirements for cable operators under certain circumstances.
See, e.g., Commission Reminds Broadcast Licensees, Cable Operators and
Others of Requirements Applicable to Video News Releases and Seeks Comment
on the Use of Video News Releases by Broadcast Licensees and Cable
Operators, Public Notice, 20 FCC Rcd 8593-94 (2005) ("2005 Public
Notice").
See Richard Kielbowicz and Linda Lawson, "Unmasking Hidden Commercials in
Broadcasting: Origins of the Sponsorship Identification Regulations,
1927-1963," 56 Fed. Comm. L. J. 329 at 344 n.80 (2004), citing FCC, Public
Service Responsibility of Broadcast Licensees, 47 (1946); Commission
Reminds Broadcast Licensees, Cable Operators and Others of Requirements
Applicable to Video News Releases and Seeks Comment on the Use of Video
News Releases by Broadcast Licensees and Cable Operators, Public Notice,
20 FCC Rcd 8593 (2005) ("2005 Public Notice").
See paras. 3-4, supra.
Section 317(a)(2), 47 U.S.C. S: 317(a)(2), provides that:
Nothing in this section shall preclude the Commission from requiring that
an appropriate announcement shall be made at the time of the broadcast in
the case of any political program or any program involving the discussion
of any controversial issue for which any films, records, transcriptions,
talent, scripts, or other material or service of any kind have been
furnished, without charge or at a nominal charge, directly or indirectly,
as an inducement to the broadcast of such program.
47 C.F.R. S: 73.1212(d). The Commission's rules also contain additional
requirements designed to implement and provide greater specificity for the
other requirements in Section 317. Section 76.1615 establishes many of
these requirements for cable operators under certain circumstances.
Amendment of Commission's Sponsorship Identification Rules, 52 FCC 2d 701,
710 (1975).
The Handling of Public Issues Under the Fairness Doctrine and the Public
Interest Standards of the Communications Act, 48 FCC 2d 1, 11-12
(1974)("1974 Fairness Report").
Id. at 11.
Westinghouse B'casting Co., 40 FCC 28, 29 (1958) ("it is obvious that the
material furnished by the [program's producer], at considerable cost to it
and no cost to the stations, was made available by that association with
the expectation or hope that it would be presented by the stations to
which it was supplied, ...--i.e., as an inducement to the stations to
present this particular material. Conversely, the station was induced to
present portions of the particular material by the fact that it was made
available gratis."); Gaylord B'casting Co., 67 FCC 2d 25 (1977). See also
Announcement of Sponsored Programs, 28 Fed. Reg. 4707, 4715 (May 10, 1963)
(rejecting contention that proposed case illustration 35(c) "was
misleading in that it permits the conclusion that whenever material
involving controversial issues of public importance is supplied to a
station free of charge, the use of any portion of such material in a news
program would require an announcement as to its source").
See Letters from William Freedman, Deputy Chief, Investigations & Hearings
Division, Enforcement Bureau, to Sinclair and Ketchum, dated February 14,
2005 ("February 14th LOIs").
See Letter from GWG to Kenneth M. Scheibel, Jr., Attorney, Investigations
& Hearings Division, Enforcement Bureau, dated April 6, 2005 ("GWG
Response"), and Letter from Ketchum to William D. Freedman, Deputy Chief,
Investigations & Hearings Division, Enforcement Bureau, dated April 13,
2005 ("Ketchum Response").
See Letters from Benigno E. Bartolome, Jr., Deputy Chief, Investigations &
Hearings Division, Enforcement Bureau, to Sonshine, dated November 7,
2006, and January 31, 2007 ("November 7th LOI" and "January 31st LOI");
Letter from Benigno E. Bartolome, Jr., Deputy Chief, Investigations &
Hearings Division, Enforcement Bureau, to Sinclair, dated November 7, 2006
("November 7th LOI"). By actions dated January 31, June 29, and July 23,
2007, the Bureau terminated its investigations of other stations,
including certain of those owned by Sinclair, based on the licensees'
denials, and the absence of any independent evidence disputing their
denials, that they had aired any of the program material at issue on such
stations.
This episode was referred to in our LOI to Sonshine as entitled "Young
Americans in Government," but that title actually describes only the
second segment of the episode. The first segment was denominated "Profile
of a Candidate." The title appearing at the beginning of the whole episode
- "Profile of Candidate/Americans" - appears to be a composite of both
segments' titles.
Specifically, Sonshine acknowledges that it aired the following episodes
of RSAW over Station WBPH-TV: "What is Faith" aired on January 6, March 4,
March 8, and April 30, 2004; "Year End Review" aired on January 4, 2004;
"Young Americans in Government" aired on January 5, 2004; "National
Security" aired on April 23, 2004; and "On Point with Rod Paige" aired on
March 19, April 12 and July 5, 2004. See Letters from Sonshine to Benigno
E. Bartolome, Jr., Deputy Chief, Investigations & Hearings Division,
Enforcement Bureau, dated December 22, 2006, March 2, 2007 and March 23,
2007 ("Sonshine December 22nd Response," "Sonshine's March 2nd Response,"
and "Sonshine's March 23rd Response," respectively).
See March 23rd Response at 2.
See id.
See id. at 4-5.
See March 23rd Response at 2-3.
See Letter from Sinclair to Benigno E. Bartolome, Jr., Deputy Chief,
Investigations & Hearings Division, Enforcement Bureau, dated December 22,
2006 ("Sinclair Response").
Specifically, Sinclair acknowledges that its stations aired the episode
over its stations on the following respective dates: on September 11,
2004, on WABM(TV), WUXP-TV, WEAR-TV, KABB(TV), and KOCB(TV); and on
September 12, 2004, on KSMO-TV, WVTV(TV), WPMY(TV) and WTWC-TV. See id. at
3-4.
Id. at 4.
See id.
Id. at 5. Sinclair explains that it likened this donated program material
to other "syndicated programming, such as reruns of shows like `Seinfeld'
and `Friends,'" which are instances, it impliedly suggests, that do not
trigger the rule's identification requirements. Id. at 4 n.8.
47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1); see also 47 U.S.C. S:
503(b)(1)(D) (forfeitures for violation of 14 U.S.C. S: 1464). Section
312(f)(1) of the Act defines willful as "the conscious and deliberate
commission or omission of [any] act, irrespective of any intent to
violate" the law. 47 U.S.C. S: 312(f)(1). The legislative history to
Section 312(f)(1) of the Act clarifies that this definition of willful
applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765,
97th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the
term in the Section 503(b) context. See, e.g., Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388
(1991) ("Southern California Broadcasting Co."). The Commission may also
assess a forfeiture for violations that are merely repeated, and not
willful. See, e.g., Callais Cablevision, Inc., Notice of Apparent
Liability for Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a
Notice of Apparent Liability for, inter alia, a cable television
operator's repeated signal leakage). "Repeated" merely means that the act
was committed or omitted more than once, or lasts more than one day.
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P:9.
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591, P: 4 (2002) (forfeiture paid).
47 U.S.C. S: 317(a)(1) (emphasis added).
See Keene Corp. v. United States, 508 U.S. 200, 208 (1993) ("where
Congress includes particular language in one section of a statute but
omits it in another ... , it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion."),
quoting Russello v. United States, 464 U.S. 16, 23 (1983).
Sonshine argues that the overall presentations, which included
introductory visual identification of the program title "Right Side with
Armstrong Williams," similar aural identifications given at program
breaks, and the closing display of production credits indicating that the
program is owned by GWG, should be deemed to provide sufficient
identification to viewers that GWG was the material's sponsor. See
Response at 2-3.
See Application of Sponsorship Identification Rules to Political
Broadcasts, Teaser Announcements, Governmental Entities and other
Organizations, Public Notice, 66 FCC 2d 302 (1977) ("1977 Public Notice").
Substantially similar language, applicable to origination cablecasting, is
set forth at 47 C.F.R. S: 76.1615(a).
Same language set forth at 47 C.F.R. S: 76.1615(a), applicable to
origination cablecasting.
See 1977 Public Notice, 66 FCC 2d at 302. See, e.g., Dallas Media
Investors Corporation (Licensee of Station KDFI-TV), Notice of Apparent
Liability for Forfeiture, 8 FCC Rcd 3597 (Mass Med. Bur. 1993) (words
"presentation," "copyright," and other words used to indicated the source
of the sponsored material or ownership rights of the program's creator are
not sufficient to satisfy the requirements of Section 317 of the Act and
the Commission's sponsorship identification rules); Channel 36 Licensee
Corporation (Licensee of Station WATL(TV)), Notice of Apparent Liability
for Forfeiture, 7 FCC Rcd 6541 (Mass Med. Bur. 1992) (announcements
stating that the program has been paid for "by the distributor" do not
identify the sponsor, and are not sufficient to satisfy the requirements
of Section 317 of the Act and the Commission's sponsorship identification
rules and visual display of "Coral Ridge Report" with aural announcement
"Coral Ridge Ministries presents the Coral Ridge Report with Doctor D.
James Kennedy..." does not comply with sponsorship identification
requirements); Midwest Radio-Television, Inc. (Licensee of Stations
WCCO(AM)), Memorandum Opinion and Order, 49 FCC 2d 512 (1974) (Forfeiture
assessed against licensee for violation of Section 317 of the Act and
Commission's sponsorship identification rule. "This is Jack Douglas
speaking for the Minnesota School Boards Association," is not sufficient
as there was no indication that the announcement was sponsored or paid for
by the association); and Lamar A. Newcomb, 1 FCC 2d 1395 (1965) (program
sponsored by Reverend Dale Crowley identified by announcement of the words
"Dale Crowley" not sufficient because there was no indication that the
Reverend Crowley was sponsoring or paying for the program).
Id.
See National Broadcasting Company, Letter By Direction of the Commission,
27 FCC 2d 75 (1970).
See n.19, supra.
Given our conclusion that Sonshine violated 47 U.S.C. S: 317(a)(1) and 47
C.F.R. S: 73.1212(a), we decline to address the issue of whether any of
the programming that Sonshine aired included political matter or any
matter involving a discussion of a controversial issue of public
importance and, if so, whether Sonshine also violated Section 73.1212(d)
of the Commission's rules.
See para. 5, supra.
Although the Commission has not specifically defined the term "political"
for purposes of evaluating a licensee's duties under 47 C.F.R. S:
73.1212(d), that fact should not deter licensees from making good faith
determinations in this area. Given the nature of the ABF episode,
including its title, we do not believe that a licensee could, in good
faith, consider this material anything but political. In any event, the
Commission has previously concluded that issues pertaining to "elections,"
which the ABF episode clearly addresses, are presumptively controversial
and of public importance. See Primer, Political Broadcasting, 100 FCC 2d
1476, 1536-37 (1984) (staff report suggesting that term reaches material
that deals "with political subjects"); Gary M. Sukow, 36 FCC 2d 668 (1972)
(suggestion that term applies to any interview with a political
officeholder, whether or not in connection with present election). The
same sponsorship announcement requirements apply to broadcast matter
involving the discussion of a controversial issue of public importance as
to political broadcast matter. We note that Sinclair does not maintain
that this material is non-political for purposes of our sponsorship
identification regulations, nor does it maintain that it acted reasonably
and in good faith in determining that this material is non-political.
Indeed, the record does not reflect that Sinclair considered the issue.
The subject program exceeded five minutes in length. Under the terms of
Section 72.1212(d), sponsorship announcements were therefore required at
both the beginning and end of the program.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Commission's Rules, 12 FCC Rcd 17087, 17114 (1997), recons. denied
15 FCC Rcd 303 (1999); 47 C.F.R. S: 1.80(b).
See n.20, supra.
See n.26, supra.
47 C.F.R. S:S: 0.111, 0.311 and 1.80.
Id.
See 47 C.F.R. S: 1.1914.
See Letters from Enforcement Bureau, FCC, to Graham Williams Group and
Ketchum, Inc., File No. EB-05-IH-0031 (July 23, 2007).
Section 507 of the Communications Act of 1934, as amended, codified at 47
U.S.C. S: 508. See Letter from Enforcement Bureau, FCC, to Graham Williams
Group, Inc., File No. EB-05-IH-0031 (July 23, 2007)("[T]he record
established that Williams and GWG [the Graham Williams Group] received
more than nominal consideration from DoED [Department of Education] to
include particular material in programming supplied to and intended for
transmission by broadcast stations and that the material was, in fact,
aired by various broadcast stations. In these circumstances, Williams and
GWG were obligated under Section 507 to disclose to the licensees
reviewing the programming that the NCLB-related broadcast material was
sponsored by DoED. The record also established that such disclosure was
not provided by either Williams or GWG. We conclude that WGB and Williams
violated Section 507 of the Communications Act.").
Forfeiture Notice at footnote 45.
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