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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) EB-10-IH-1831
In the Matter of
) NAL/Acct. No. 201032080028
Fox Television Stations, Inc.
) FRN No. 0001529056
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 3, 2010 Released: June 3, 2010
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Fox Television Stations, Inc. ("Fox") apparently willfully and
repeatedly violated a Commission Order and Section 73.1015 of the
Commission's Rules, by failing to respond to an Enforcement Bureau
("Bureau") Letter of Inquiry ("LOI"). We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended (the "Act"), that
Fox is apparently liable for a forfeiture in the amount of twenty-five
thousand dollars ($25,000).
II. BACKGROUND
2. The Commission's records indicate that the agency has received more
than 100,000 consumer complaints concerning the January 3, 2010
episode of the Fox Television Network program "American Dad." In
response to these numerous complaints, the Bureau issued the LOI to
Fox on January 21, 2010. The LOI directed Fox to provide information
and documents concerning the broadcast. Consistent with our usual
practice and as a courtesy to the licensee, the Bureau enclosed with
the LOI a redacted complaint that was representative of the complaints
received by the Commission. The example complaint identified a
specific Fox station, Station KDFW(TV), Dallas, Texas, but the LOI
explicitly sought information regarding all Fox-affiliated stations
that might have aired the program.
3. On February 2, 2010, following a request from Fox, the Bureau
temporarily suspended the company's obligation to respond to inquiry
number five in the LOI. The Bureau specifically noted that Fox's
obligation to respond to the LOI's other inquiries remained in effect.
On February 16, 2010, following an additional request from Fox, the
Bureau extended Fox's deadline for responding to the LOI until March
1, 2010.
4. Fox failed to respond to the LOI. Instead the Bureau received a
response from NW Communications of Texas, Inc. ("NW Communications"),
licensee of Station KDFW(TV), which was identified in the sample
complaint attached to the LOI and is commonly-owned with other Fox
stations.
5. NW Communications' response did not claim to be on behalf of Fox and
was incomplete. Its response not only was limited to information
concerning material that had aired on Station KDFW(TV) during the
January 3, 2010 episode of "American Dad," but also failed to answer
several of the LOI's factual inquiries. Specifically, the NW
Communications response did not provide information concerning
Fox-owned and operated stations that broadcast the complained-of
material, as inquiries numbers one and two required. In addition, the
NW Communications response did not provide information concerning
other stations not owned by Fox that had a contractual right to
broadcast the complained-of material, as inquiry number three
required. The NW Communications response also did not provide Nielsen
Media Research TV Audience measurements, as inquiry number four
required. Finally, the NW Communications response provided information
concerning the TV Parental Guidelines information that Station
KDFW(TV) displayed during the January 3, 2010 episode of "American
Dad," but did not state whether Fox or the Fox Television Network
displayed this information, as inquiry number six required.
6. The NW Communications response asserted that the information required
by inquiry numbers one, two, and three is unnecessary to the Bureau's
investigation and beyond the Commission's authority. The NW
Communications response did not assert legal privilege or
confidentiality on behalf of itself or Fox. Instead, it merely cited
the Commission's statements regarding its restrained approach to
indecency enforcement, specifically, the Commission's policy of
limiting forfeiture actions "to licensees whose stations serve markets
from which specific complaints were received." It asserted that other
Fox-owned and operated stations were therefore not required to respond
to inquiries "unless and until the Commission provides [...] copies of
all complaints that the FCC has received regarding the broadcast of
the January 3, 2010 episode of `American Dad.'" In addition, the NW
Communications response contended that the Commission should seek
information about the broadcast on a station affiliated with the Fox
Television Network only when it has received a complaint regarding the
affiliated station, and then should issue an LOI directly to the
licensee of the affiliated station. The NW Communications response
also objected to inquiry number four, requiring final Nielsen Media
research TV Audience measurements for "American Dad" on January 3,
2010, and claimed that this material has no bearing on whether the
complained-of episode included any indecent material.
7. On March 19, 2010, the Bureau issued a letter to Fox describing its
failure to respond to the LOI and requiring a full and complete
response to all the Bureau's inquiries no later than March 23, 2010.
The Bureau rejected NW Communications' arguments concerning the
relevance of the required information to the Bureau's investigation
and the Commission's authority to request such information.
Specifically, the Bureau cited the Commission's well-established
authority to require information from its licensees. Moreover, the
Bureau pointed out that the facts and documents sought in the LOI are
relevant to an assessment of potential violations of 18 U.S.C. S: 1464
and the Commission's rules, as well as to the scope of such potential
violations. Further, the March 19th Letter observed that the requested
information concerning Fox-owned and operated stations and Fox
Television Network station affiliates that aired this episode of
"American Dad" will help the Commission evaluate the complaints that
have been filed, particularly if any of those stations did not air the
complained-of material. The Bureau also noted that Fox did not assert
or demonstrate that providing the information would be unduly
burdensome or that the information was privileged or confidential. The
March 19th Letter reiterated that failure to respond fully and
completely to an official Commission letter of inquiry is a violation
of the Act and the Commission's rules. The Bureau cautioned Fox that
its continued failure to respond fully to the inquiries might subject
the licensee to potential enforcement action, including the imposition
of monetary forfeitures.
8. Fox failed to respond to the March 19th Letter. On March 23, 2010, NW
Communications responded to the March 19th Letter, but again failed to
provide information requested in inquiry numbers one, two, and three
concerning other stations that had broadcast the January 3, 2010
episode of "American Dad," including stations owned and operated by
Fox and stations that are affiliated with the Fox Television Network.
The Supplemental NW Communications Response reiterated the objection
to providing the required information for the same reasons set forth
in the original NW Communications Response. In addition, NW
Communications noted it was simultaneously filing a request pursuant
to the Freedom of Information Act ("FOIA") for copies of all
complaints received by the Commission with respect to the January 3,
2010 episode of "American Dad." The Supplemental NW Communications
Response provided the Nielsen data required by inquiry number four. In
addition, with respect to inquiry number six, concerning the display
or announcement of TV Parental Guidelines, the Supplemental NW
Communications Response stated that the Fox Television Network
provided such rating information during the broadcast of "American
Dad" on January 3, 2010.
III. DISCUSSION
9. 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 forfeiture
penalty. 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. 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, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. "Repeated" means that the act was
committed or omitted more than once, or lasts more than one day. In
order to impose such a penalty, the Commission must issue a notice of
apparent liability, the notice must be received, and the person
against whom the notice has been issued must have an opportunity to
show, in writing, why no such penalty should be imposed. The
Commission will then issue a forfeiture if it finds, by a
preponderance of the evidence, that the person has willfully or
repeatedly violated the Act or a Commission rule. As described in
greater detail below, we conclude under this procedure that Fox is
apparently liable for a forfeiture in the amount of $25,000 for its
apparent willful and repeated violations of a Commission Order and of
Section 73.1015 of the Commission's rules.
A. Failure to Respond Fully to the LOI
10. We find that Fox's failure to respond to the Bureau's LOI constitutes
an apparent willful and repeated violation of a Commission Order and
of Section 73.1015 of the Commission's rules. The Bureau directed Fox
to provide certain information related to the broadcast of the January
3, 2010 episode of "American Dad." This information is necessary to
enable the Bureau to perform its investigatory function and to
evaluate the complaints it has received concerning the January 3, 2010
episode of "American Dad." The Bureau specifically directed Fox to
provide information concerning its owned and operated stations and
information about affiliates with which it contracted to air the
program at issue because this information would permit efficient and
accurate fact-gathering in a Bureau investigation. In addition, the
information is available to Fox, not privileged or confidential, and
not burdensome for the company to provide. We note that Fox has not
claimed otherwise. In fact, Fox has provided no written reply
whatsoever to the LOI.
11. Although another entity, NW Communications, responded to some of the
inquiries in the LOI, those responses were incomplete and
unsatisfactory. NW Communications claims that before the Commission
may inquire about any broadcast station regarding indecency
allegations, a complaint identifying each individual station must be
provided to mandate a licensee's response, and argues that the
Commission must obtain the information, if at all, from each station
individually. We emphatically reject this position.
12. The Commission has broad investigatory authority under Sections 4(i),
4(j), and 403 of the Act, its rules, and relevant precedent. Section
4(i) authorizes the Commission to "issue such orders, not inconsistent
with this Act, as may be necessary in the execution of its functions."
Section 4(j) states that "the Commission may conduct its proceedings
in such manner as will best conduce to the proper dispatch of business
and to the ends of justice." Section 403 grants the Commission "full
authority and power at any time to institute an inquiry, on its own
motion, in any case and as to any matter . . . relating to the
enforcement of any of the provisions of this Act." Pursuant to
Section 73.1015 of the Commission's rules, the Commission may, in
writing, require from a broadcast licensee written statements of fact
relevant to any matter within its jurisdiction. In carrying out this
obligation, a broadcast licensee must provide truthful and accurate
statements to the Commission or its staff in any investigatory or
adjudicatory matter within the Commission's jurisdiction. Numerous
Commission decisions have reaffirmed the Commission's authority to
investigate potential misconduct and punish those that disregard FCC
inquiries. The Commission delegated this authority to the Enforcement
Bureau in Sections 0.111(a)(16) and 0.311 of the rules.
13. We have previously considered and rejected Fox's arguments concerning
our authority to request information concerning stations that aired
the January 3, 2010 episode of "American Dad." Commission precedent
holding that forfeiture penalties will be assessed only against the
licensee of a station in a market in which there was a viewer
complaint filed with the Commission about the programming is
irrelevant to Fox's obligation to respond to Commission inquiries. The
Bureau's LOI itself does not impose any enforcement penalty related to
the January 3, 2010 episode of "American Dad." Rather, the Bureau's
inquiries required Fox to provide factual information relevant to an
investigation of matters within our delegated authority. Information
requested in all the numbered inquiries is plainly relevant to this
investigation. As noted, the responses to these inquiries will permit
the Bureau to conduct a complete investigation, assess the scope of
any potential wrongdoing, and determine whether there are stations
that should be excluded from the investigation because they edited or
did not air the January 3, 2010 episode of "American Dad."
14. The Bureau acted within its investigatory authority to carry out its
responsibilities, particularly in light of the breadth and magnitude
of the viewer complaints received, but in any event, parties must
comply with Bureau orders even if they believe them to be outside the
Commission's authority. While there is no legal requirement that the
Bureau attach a complaint to any investigative letter or any
requirement that the Bureau attach a complaint that identifies a
specific station or stations in order to obtain a reply from a
licensee, in cases involving large numbers of complaints, the Bureau
historically has provided a representative sample of the relevant
complaints. We followed that approach here. Given the sheer volume,
providing all the complaints was unworkable and would have unduly
delayed the Bureau's investigation. Further, NW Communications' FOIA
request seeking copies of complaints the Commission received
concerning the "American Dad" episode does not excuse in any way Fox's
obligation to provide the requested information. In light of
well-established Commission precedent, therefore, Fox's failure to
respond to the Bureau's LOI and March 19th Letter constitutes apparent
willful and repeated violations of a Commission Order and of Section
73.1015.
A. Proposed Forfeiture
15. Pursuant to the Forfeiture Policy Statement and Section 1.80 of the
Commission's Rules, the base forfeiture amount for failure to respond
to Commission communications is $4,000. The Commission's rules provide
that base forfeitures may be adjusted based upon consideration of the
factors enumerated in Section 503(b)(2)(E) of the Act and Section
1.80(a)(4) of the Commission's rules, which include "the nature,
circumstances, extent, and gravity of the violation . . . and the
degree of culpability, any history of prior offenses, ability to pay,
and such other matters as justice may require." We find that Fox's
failure to respond to the Bureau's inquiries in the circumstances
presented here warrants a significant increase from the base
forfeiture amount. Misconduct of this type exhibits contempt for the
Commission's authority and threatens to compromise the Commission's
ability to adequately investigate violations of its rules. Prompt and
full responses to Bureau inquiry letters are essential to the
Commission's enforcement function. In this case, Fox's apparent
violation has delayed our investigation, caused the Commission to
expend additional, significant resources to send individual LOIs to
235 Fox-owned or affiliated stations, and inhibited our ability to
examine allegations raised in viewers' indecency complaints. We
further note that Fox failed to provide a full and complete response
even after receiving the March 19th Letter. For these reasons, we find
that Fox's misconduct was egregious and justifies an upward
adjustment.
16. In addition, Fox's ability to pay warrants the upward adjustment of
the forfeiture amount to serve as a deterrent to future misconduct. To
ensure that a proposed forfeiture is a deterrent, and not simply a
cost of doing business, the Commission has determined that large or
highly-profitable companies such as Fox may be subject to proposed
forfeitures that are substantially above the base forfeiture amount.
Given Fox's size and its ability to pay a forfeiture, coupled with its
egregious misconduct, we conclude that an upward adjustment of the
base forfeiture amount to $25,000 is appropriate. The proposed
forfeiture amount is consistent with recent precedent in similar
cases, where companies failed to provide responses to Bureau inquiries
concerning compliance with the Commission's rules despite evidence
that the letters of inquiry had been received.
IV. ORDERING CLAUSES
17. 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, Fox Television Stations, Inc. is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-five thousand dollars ($25,000) for its willful and
repeated violations of a Commission Order and Section 73.1015 of the
Commission's rules.
18. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, that within thirty (30) days of the release date
of this Notice, Fox Television Stations, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture. The
written statement seeking reduction or cancellation of the proposed
forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Commission's rules.
19. Payment of the forfeiture 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
above. 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). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Fox Television Stations, Inc. will also
send electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, Anjali.Singh@fcc.gov
and Melanie.Godschall @fcc.gov.
20. The response, if any, shall 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 SHALL INCLUDE the NAL/Acct. No. referenced
above. The licensee shall also, to the extent practicable, transmit a
copy of the response via email to Hillary.DeNigro@fcc.gov,
Ben.Bartolome@fcc.gov, Anjali.Singh@fcc.gov and Melanie.Godschall
@fcc.gov.
21. The Commission shall 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.
22. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Maureen A. O'Connell, Esquire, and
Joseph Di Scipio, Esquire, Fox Television Stations, Inc., 444 North
Capitol Street, N.W., Suite 740, Washington, D.C. 20001; and to Jared
S. Sher, Esquire, Skadden, Arps, Slate, Meagher & Flom LLP, 1440 New
York Avenue, N.W., Washington, DC 20005-2111.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
See 47 C.F.R. S: 73.1015.
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to Joseph Di Scipio, Esquire, Vice President for Legal and FCC Compliance,
Fox Television Stations, Inc., dated January 21, 2010. See also note 21,
infra (citing March 19th Letter).
See 47 U.S.C. S: 503(b).
See LOI.
See id. at 2-3 (Inquiry nos. 1-3, 6-7).
According to ownership reports filed with the Commission, News Corporation
holds 100 percent of the outstanding shares of Fox Entertainment Group.
See File No. BOA-20090129AKD. Fox Entertainment Group controls Fox
Television Holdings, Inc., which in turn indirectly controls the licensees
of twenty-eight television stations, including Fox Television Stations,
Inc., which is the licensee of eighteen television stations, and NW
Communications of Texas, Inc., which is the licensee of Station KDFW(TV).
See id.
See E-mail from Melanie Godschall, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, to Maureen
O'Connell, Esquire, Fox Television Stations, Inc., dated February 2, 2010.
As reflected on page three of the LOI, inquiry number five asks if the Fox
Television Network's Program Practices or equivalent department was
consulted about the content of the January 3, 2010 episode of "American
Dad." The temporary suspension of Fox's obligation to respond to inquiry
number five remains in effect.
See E-mail from Anjali Singh, Acting Assistant Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to Joseph DiScipio, Fox Television Stations, Inc., dated February 16,
2010.
See Letter from Jared S. Sher, Esquire, Skadden, Arps, Slate, Meagher &
Flom L.L.P., Counsel to NW Communications, to Melanie Godschall,
Investigations and Hearings Division, Enforcement Bureau, dated March 1,
2010 ("NW Communications Response").
See id. The LOI at page 7 defined the term "Licensee" not as "NW
Communications of Texas, Inc." but as follows:
"Licensee" shall mean Fox Television Stations, Inc. and any
predecessor-in-interest, affiliate, parent company, wholly or partially
owned subsidiary, other affiliated company or business, and all owners,
including but not limited to, partners or principals, and all directors,
officers, employees, or agents, including consultants any any other
persons working for or on behalf of the foregoing at any time during the
period covered by this letter.
Inquiry number one states: "It is alleged that, on January 3, 2010,
certain stations owned by the Licensee broadcast material described in the
Complaint during their airing of `American Dad.' State whether the
Licensee did, in fact, broadcast any or all of the material described in
the Complaint and identify each station licensed to the Licensee that
broadcast that material. If the programming described in the Complaint
does not accurately reflect the material aired over the stations, describe
any inaccuracies." LOI at 2. Inquiry two seeks, among other things, the
licensee name, call sign, and community of license of each licensee of the
stations named in inquiry one. See LOI at 2.
Inquiry number three seeks the licensee, call sign, and community of
license of each non-Fox-owned and operated station that had the
contractual right to air the January 3, 2010 episode of "American Dad,"
and whether Fox has reason to know or believe that the station in question
did not air the episode, or aired an edited version, as well as the basis
for that knowledge or belief. See id.
Inquiry number four seeks the final Nielsen Media Research TV Audience
measurements (points and share) for "American Dad" on January 3, 2010,
organized by various age categories ranging from two to five to over 18.
See id. at 3.
Inquiry number six asks if Fox or the Fox Television Network displayed or
announced any TV Parental Guidelines regarding the broadcast of "American
Dad" on January 3, 2010. See id.
See LOI Response at 6.
See id. at 1-3, 5-6 (claiming that Commission precedent requires the
agency to provide licensees with all "properly documented complaints"
before it may inquire about allegedly indecent broadcasts).
See id. at 2-3.
Id. at 3.
See id. at 5-6.
See id. at 6.
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to Maureen A. O'Connell, Esquire, Fox Television Stations, Inc., dated
March 19, 2010 ("March 19th Letter").
See id. at 2-3.
See id. at 2 (citing Sections 4(i), 4(j), 308(b), and 403 of the
Communications Act of 1934, as amended, 47 U.S. C. S:S: 154(i), 154(j),
308(b), 403, and Section 1.117 of the Commission's Rules, 47 C.F.R. S:
1.117). See also Stahlman v. FCC, 126 F.2d 124 (D.C. Cir. 1942); SBC
Communications, Inc, Forfeiture Order, 17 FCC Rcd 7589, 7600 P: 28 (2002)
(forfeiture paid) ("SBC Communications Order"); Globcom, Inc., Notice of
Apparent Liability for Forfeiture and Order, 18 FCC Rcd, 19893, 19898 n.36
(2003); World Communications Satellite Systems, Inc., Forfeiture Order, 19
FCC Rcd 2718 (Enf. Bur. 2004); American Family Association, Notice of
Apparent Liability for Forfeiture, 19 FCC Rcd 14072 (Enf. Bur. 2004);
Donald W. Kaminski, Jr., Notice of Apparent Liability for Forfeiture, 16
FCC Rcd 10707 (Enf. Bur. 2001).
See March 19th Letter at 2.
See id.
See id. at 3.
See id. (citing authorities cited in supra note 23).
See id.
See Letter from Jared S. Sher, Esquire, Skadden, Arps, Slate, Meagher &
Flom L.L.P., Counsel to NW Communications of Texas, Inc., to Melanie
Godschall, Investigations and Hearings Division, Enforcement Bureau, dated
March 23, 2010 ("Supplemental NW Communications Response").
See id. at 2-3.
See id. at 3 & Attachment 1.
See id. at 4-7.
See id. at 1 n.2.
See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10
(2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal leakage).
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 Order, 17 FCC Rcd at 7591 P: 4.
The same or similar information has been asked of other broadcast networks
that are also licensees - including Fox -- and other broadcast networks -
including Fox -- have provided the information in response to letters of
inquiry.
Given the continued absence of a response from Fox and the incomplete
response received from NW Communications, contemporaneously with the
release of this NAL, the Bureau is sending letters of inquiry to all
licensees that air Fox Television Network programming. We take this step
to advance the investigation. It should not be construed as a concession
that our initial inquiry to Fox was misdirected.
47 U.S.C. S: 154(i).
47 U.S.C. S: 154(j).
47 U.S.C. S: 403.
47 C.F.R. S: 73.1015.
See 47 C.F.R. S: 1.17.
See, e.g., SBC Communications Order, 17 FCC Rcd at 7599-7600 P:P: 23-28
(ordering $100,000 forfeiture for egregious and intentional failure to
certify the response to a Bureau inquiry); Digital Antenna, Inc., Notice
of Apparent Liability for Forfeiture and Order, 23 FCC Rcd 7600, 7602
(Spectrum Enforcement Div., Enf. Bur. 2008) (proposing $11,000 forfeiture
for failure to provide a complete response to a letter of inquiry);
BigZoo.Com Corporation, Forfeiture Order, 20 FCC Rcd 3954 (Enf. Bur. 2005)
(ordering $20,000 forfeiture for failure to respond to a letter of
inquiry).
47 C.F.R. S: 0.111(a)(16) (granting the Enforcement Bureau authority to
"[i]dentify and analyze complaint information, conduct investigations,
conduct external audits and collect information, including pursuant to
sections 218, 220, 308(b), 403 and 409(e) through (k) of the
Communications Act, in connection with complaints, on its own initiative
or upon request of another Bureau or Office"). See also 47 C.F.R. S: 0.311
(general delegated authority for Enforcement Bureau).
See March 19th Letter at 2-3.
The LOI Response cites Eagle Radio Inc., Memorandum Opinion and Order, 9
FCC Rcd 1294, 1294 P: 2 (1994) (subsequent history omitted), and asserts
that the Commission should not expect Fox to make assumptions about
"independent editorial entit[ies]" that may or may not have carried a
program based on "contractual arrangements with its producer." See LOI
Response at 5-6. The cited decision relied upon by Fox, however, does not
address the Commission's authority to require information responsive to
its inquiries and does not preclude the Bureau from requesting information
concerning the airing of the January 3, 2010 episode of "American Dad" by
stations affiliated with the Fox Television Network.
See, e.g., World Communications Satellite Systems, Inc., Notice of
Apparent Liability for Forfeiture, 18 FCC Rcd 18545, 18546 P: 5 (Enf. Bur.
2003) (citing 47 U.S.C. S: 416(c)) (subsequent history omitted); SBC
Communications Order, 17 FCC Rcd at 7591 P: 5).
See World Communications Satellite Systems, Inc., 18 FCC Rcd at 18547 P:
7, 18548 P: 9, affirmed, Forfeiture Order, 19 FCC Rcd 2718, 2720 P: 8
(Enf. Bur. 2004) (recipient of a letter of inquiry is not entitled to
withhold its response to that inquiry prior to production of investigative
records, including complaints).
See, e.g., SBC Communications Order, 17 FCC Rcd at 7591 P: 5; 47 C.F.R. S:
73.1015.
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087, 17115 (1997), recons. denied, 15 FCC Rcd 303
(1999) ("Forfeiture Policy Statement"); 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.80(a)(4).
See SBC Communications Order, 17 FCC Rcd at 7599 P: 23.
Fox Entertainment Group, Inc., which controls Fox Television Holdings,
Inc. as well as the Fox Television Network, operates the number two
broadcast television network with more than 200 affiliated stations,
including 17 company-owned television outlets. Its net yearly sales are
$2,624,000,000. See Hoover's Company Records - In-depth Records, March 22,
2010.
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100 P: 24.
See supra note 49.
See 47 U.S.C. S:S: 310(d), 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314,
1.80, 73.1125.
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Federal Communications Commission DA 10-995
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Federal Communications Commission DA 10-995