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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of EB-06-IH-1363
)
ACC LICENSEE, INC. Facility ID No. 1051
)
Licensee of Station WJLA-TV, Account No. 201032080033
)
Washington, D.C. FRN No. 0007517576
)
)
ORDER
Adopted: September 29, 2010 Released: September 29, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and ACC Licensee, Inc.
("Licensee"). The Consent Decree terminates the investigation initiated by
the Bureau against the Licensee for possible violations of Sections 317
and 507 of the Communications Act of 1934, as amended (the "Act"), and
Section 73.1212 of the Commission's rules, regarding sponsorship
identification.
2. The Bureau and the Licensee have negotiated the terms of a Consent
Decree that resolve this matter. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. 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 Licensee possesses 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 Sections 0.111 and 0.311 of
the Commission's Rules, the Consent Decree attached to this Order IS
ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that the third-party complaint against the
Licensee before the Bureau related to the
above-captioned-investigation as of the date of this Consent Decree IS
DISMISSED.
8. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent to by first-class, certified mail, return receipt
requested to Jerald N. Fritz, Allbritton Communications Company, 1000
Wilson Boulevard, Suite 2700, Arlington, VA 22209, and to Kevin P.
Latek, Dow Lohnes PLLC, 1200 New Hampshire Avenue, NW, Suite 800,
Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of EB-06-IH-1363
)
ACC LICENSEE, INC. Facility ID No. 1051
)
Licensee of Station WJLA-TV, Account No. 201032080033
)
Washington, D.C. FRN No. 0007517576
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and ACC Licensee, Inc. ("Licensee"),
by their authorized representatives, hereby enter into this Consent
Decree for the purpose of terminating the Bureau's investigation into
whether the Licensee violated the Sponsorship Identification Laws, as
defined below.
I. DEFINITIONS
2. For purposes of this Consent Decree, the following definitions shall
apply:
(a) "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.;
(b) "Adopting Order" means an order of the FCC adopting this Consent
Decree, without any modifications adverse to the Licensee;
(c) "Bureau" means the FCC's Enforcement Bureau;
(d) "Commission" or "FCC" means the Federal Communications Commission or
its staff acting on delegated authority;
(e) "Complaint" means the third-party complaint received by, or in the
possession of, the Bureau, to the extent that it identified WJLA-TV (but
not respecting those stations also therein identified and licensed to
other broadcasters), and that formed the basis for the Bureau's January 6,
2010 Letter of Inquiry, regarding whether the Licensee violated the
Commission's Sponsorship Identification Laws in connection with its
operation of the Station prior to the effective date of the Adopting
Order;
(f) "Compliance Plan" means the program described in paragraph 10, infra,
and Attachment A to this Consent Decree;
(g) "Effective Date" means the date on which the FCC releases the Adopting
Order;
(h) "Final Order" means the status of the Adopting Order after the period
for administrative and judicial review has lapsed;
(i) "Investigation" means the Bureau's investigation of the Complaint
alleging violations of the Sponsorship Identification Laws by the
Licensee;
(j) "Licensee" means ACC Licensee, Inc. and its predecessors-in-interest
and successors-in-interest as licensee of the Station;
(k) "Parties" means the Licensee and the Bureau;
(l) "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations;
(m) "Sponsorship Identification Laws" means, individually or collectively,
47 U.S.C. S: 317, 47 U.S.C. S: 508, 47 C.F.R. S: 73.1212, and/or any
Commission policy relating to sponsorship identification or the practices
commonly referred to as "payola" or "plugola"; and
(n) "Station" means Station WJLA-TV, Washington, D.C., Facility ID No.
1051.
II. BACKGROUND
3. On January 6, 2010, the Bureau issued a letter of inquiry (the "LOI")
to the Licensee concerning information in the Complaint, alleging that
various broadcasters, including the Licensee, had solicited paying
sponsors for promotional segments that were featured in the stations'
news coverage. The Licensee submitted a response to the LOI on
February 5, 2010. Subsequent filings were received by the Bureau on
March 26, 2010, and on April 23, 2010. In these filings, the Licensee
denied that it had violated the Sponsorship Identification Laws.
4. The Bureau and the Licensee acknowledge that any proceedings that
might result from the Investigation and/or the Complaint would be
time-consuming and would require substantial expenditure of public and
private resources.
5. In order to conserve such resources and to ensure continued compliance
by the Licensee with the Sponsorship Identification Laws, the Bureau
and the Licensee are entering into this Consent Decree in
consideration of the mutual commitments made herein.
III. TERMS OF AGREEMENT
6. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to approval by the Bureau by incorporation of
such provisions by reference in an Adopting Order.
7. Jurisdiction. The Licensee agrees that the Bureau has jurisdiction
over the matters contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
8. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the Bureau releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other orders of the
Commission and any violation of the terms of this Consent Decree shall
constitute a violation of a Commission order, entitling the Commission
to exercise any rights and remedies attendant to the enforcement of a
Commission order.
9. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
Investigation and dismiss the Complaint. In consideration for the
termination of said Investigation and dismissal of the Complaint, the
Licensee agrees to the terms, conditions, and procedures contained
herein. The Bureau further agrees that, in the absence of new material
evidence, the Commission 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 complaint or
objection or proceeding, any new formal or informal proceeding
(including license renewal applications, license assignment and
transfer applications, inquiries, investigations, forfeiture
proceedings, hearings, or other sanctions), or take any other action
against the Licensee 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 any proceeding, formal or informal, or
take any action on its own motion against the Licensee with respect to
the Licensee's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
authorizations. Without limitation to the foregoing, the Commission
shall not provide, on its own motion, any information within its
possession in connection with any of the foregoing to any other
federal, state or local agency, or request any such agency to
investigate or pursue enforcement action with respect thereto.
10. Compliance Plan. Licensee has had in place policies and procedures to
deter employees from engaging in conduct that violates the Sponsorship
Identification Laws, but is willing to adopt a new plan in an effort
to enhance the effectiveness of Licensee's efforts. Accordingly,
Licensee agrees to implement a Compliance Plan that includes, at a
minimum, the components found in the Attachment to this Consent
Decree, commencing within sixty days of the Effective Date.
11. Compliance Reports. Licensee will file compliance reports with the
Commission ninety days after the Effective Date, twelve months after
the Effective Date, twenty-four months after the Effective Date, and
upon expiration of this Consent Decree, three years after the
Effective Date. Each compliance report shall include a compliance
certificate from the Compliance Officer, as defined in paragraph 3 of
the Compliance Plan in the Attachment, as an agent of the Licensee,
stating that the Compliance Officer has personal knowledge that the
Licensee has established and maintained on an ongoing basis operating
procedures identified in the Compliance Plan, together with an
accompanying statement explaining the basis for the Compliance
Officer's compliance certification. Each compliance report will
describe any significant difficulties the Licensee has encountered
during the reporting period in ensuring compliance with the
Sponsorship Identification Laws or this Consent Decree, what steps it
has taken to resolve those difficulties, and the success of those
steps in doing so. All compliance reports shall be submitted to the
Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, Room 4-C330, 445 12th Street, S.W.,
Washington, D.C. 20554. The certification must comply with section
1.16 of the Commission's rules and be substantially in the form set
forth therein.
12. Termination Date. Unless stated otherwise, the requirements of the
Compliance Plan will expire three (3) years after the Effective Date.
13. Voluntary Contribution. Licensee agrees that it will make a voluntary
contribution to the United States Treasury in the amount of Twenty-One
Thousand Dollars ($21,000.00). The payment will be made within five
(5) days after the Effective Date of the Adopting Order. The payment
must be made by check or similar instrument, payable to the order of
the Federal Communications Commission. The payment must include the
NAL/Account Number and FRN Number referenced in the caption to the
Adopting Order. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). The Licensee will also
send electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
Kenneth.Scheibel@fcc.gov, and Guy.Benson@fcc.gov.
14. Waivers. The Licensee 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 the
Commission issues an Order adopting the Consent Decree without change,
addition, modification, or deletion. The Licensee shall retain the
right to challenge Commission interpretation of the Consent Decree or
any terms contained herein. If either Party (or the United States on
behalf of the Commission) brings a judicial action to enforce the
terms of the Adopting Order, neither the Licensee nor the Commission
shall contest the validity of the Consent Decree or the Adopting
Order, and the Licensee shall waive any statutory right to a trial de
novo. The Licensee hereby agrees to waive any claims 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.
15. Subsequent Rule or Order. The Parties 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 the Licensee does not expressly
consent), that provision will be superseded by such Commission rule or
Order.
16. Successors and Assigns. The Licensee agrees that the provisions of
this Consent Decree shall be binding on its successors, assigns, and
transferees.
17. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and orders. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, the Licensee does not
admit or deny noncompliance, violation, or liability for violating the
Act, the Commission's Rules, or orders in connection with the matters
that are the subject of this Consent Decree.
18. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
19. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
20. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
21. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
FEDERAL COMMUNICATIONS COMMISSION
By: ________________________________
P. Michele Ellison
Chief, Enforcement Bureau
Date:
ACC LICENSEE, INC.
By: _________________________________
Jerald N. Fritz, Vice President
Date:
ATTACHMENT A
Compliance Plan
The Licensee will develop a Compliance Plan for the purpose of furthering
compliance with the Sponsorship Identification Laws. At a minimum, the
Compliance Plan will consist of the following components:
1. Commitment to High Standards on Sponsorship Identification; Annual
Report.
A. Commitment to High Standards on Sponsorship Identification. The
Licensee commits to enforcing high standards with respect to the
Sponsorship Identification Laws to avoid violations and the appearance of
impropriety in the airing of television programming.
B. Control Over News Programming. The Licensee reaffirms its policy that
news programming shall remain uninfluenced by the Station's sales and
advertising agreements.
C. Annual Report. The Compliance Officer, as defined below, shall submit
reports to the Licensee's Board of Directors concerning the Licensee's
compliance with this Compliance Plan. The first such report shall be
submitted within 60 days of the Effective date and an additional report
will be submitted at least annually thereafter.
2. Training of Personnel. The Licensee will conduct appropriate training
of its employees who are involved in sales (including account executives)
and employees who materially participate in making programming decisions
(including on-air talent) in the Sponsorship Identification Laws
(collectively, "Sales and Programming Personnel"), including the FCC's
interpretation of such statutes and regulations regarding payola and
related issues. Such training will be provided to all current Programming
Personnel within 60 days of the Effective Date. The training will be
provided to all new Sales and Programming Personnel promptly after they
commence their duties. Refresher training will be provided to all
employees described above at least once every twelve months regarding
existing guidelines and, where applicable, pertinent changes to the
Sponsorship Identification Laws.
3. Compliance Officer. Within 45 days of the Effective Date, Licensee
shall designate a Compliance Officer, whose responsibility shall be to
seek to ensure Licensee's compliance with this Consent Decree and with the
Sponsorship Identification Laws through the following duties: (a) the
implementation, effectuation, and supervision of the training program with
regard to the Sponsorship Identification Laws for all Sales and
Programming Personnel; (b) being accessible by telephone and/or e-mail to
any Licensee employee who seeks advice on compliance with the Sponsorship
Identification Laws or who wishes to report potential violations of such
policies and laws; (c) the development and implementation of procedures
designed to ensure the Licensee's continuing compliance with the
Sponsorship Identification Laws; (d) monitoring the Licensee's compliance
with the Sponsorship Identification Laws; (e) reporting on a quarterly
basis to the Licensee's President regarding compliance of Licensee
Stations and employees with the Sponsorship Identification Laws; and (f)
such other activities as the Compliance Officer deems necessary or
appropriate to carry out his or her duties.
4. Hotline. Company shall maintain a hotline for employees through which
they can reach the Compliance Officer to obtain advice on compliance with,
and report violations of, the Sponsorship Identification Laws. Company
shall maintain a log of all such calls, e-mails, meetings or other such
employee inquiries, providing for each, to the extent available: (i) the
date of the call, e-mail, meeting or other inquiry; (ii) the
caller/inquiring party and his or her job title with the Company and
station; and (iii) the disposition by the Compliance Officer and the date
of such disposition.
5. Contractual Agreements. The Licensee will ensure that all employment
agreements with respect to Sales and Programming Personnel entered into
after the Effective Date include a clause relating to compliance with the
Sponsorship Identification Laws.
6. FCC Enforcement Actions. If as a result of a possible violation of the
Sponsorship Identification Laws at the Station occurring after the
Effective Date of the Consent Decree, the Licensee receives a Notice of
Apparent Liability or similar Bureau document proposing a forfeiture, a
Bureau document contemplating license non-renewal or revocation, or a
Forfeiture Order, the following steps will be taken:
A. Each employee accused of violating the Sponsorship Identification Laws
in such document may be suspended pending investigation, as warranted by
the allegations, and an investigation will immediately be undertaken.
B. Each such employee will be required to undergo remedial training on the
Sponsorship Identification Laws and satisfy the Compliance Officer and the
Licensee Station management that he or she understands such regulations
and policies before resuming his or her duties.
C. If a Notice of Apparent Liability, Forfeiture Order or similar document
assessing a forfeiture, or a document denying a renewal application and/or
revoking a license issued by the FCC, is finally adjudicated and the
Licensee is finally found to have violated the Sponsorship Identification
Laws that results in such action by the Commission, the employee(s)
materially involved in the violation or violations that are the subject of
such Commission or Bureau action will be subject to disciplinary action as
warranted by the investigation, up to and including termination.
See 47 U.S.C. S:S: 317, 508.
See 47 C.F.R. S: 73.1212.
See 47 U.S.C. S: 154(i).
See 47 C.F.R. S:S: 0.111, 0.311.
See Letter from Kenneth M. Scheibel, Jr., Assistant Chief, Investigation
and Hearings Division, Enforcement Bureau to ACC Licensee, Inc., dated
January 6, 2010.
See ACC Licensee, Inc., Response to Letter of Inquiry, filed February 5,
2010.
See ACC Licensee, Inc., Supplemental Submission to Letter of Inquiry,
filed March 26, 2010.
See ACC Licensee, Inc., Second Supplemental Response, filed April 23,
2010.
See 47 C.F.R. S: 1.16.
* Federal Communications Commission DA 10-1722
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* Federal Communications Commission DA 10-1722
* Federal Communications Commission DA 10-1722
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* Federal Communications Commission DA 10-1722