Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File Number: EB-06-IH-3709
Fox Television Stations, Inc. ) Facility ID Number: 68883
Licensee of Station KMSP-TV, ) NAL/Acct. Number: 201132080023
Minneapolis, Minnesota ) FRN: 0005795067
)
FORFEITURE ORDER
Adopted: July 7, 2011 Released: July 8, 2011
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we assess a monetary forfeiture in the
amount of four thousand dollars ($4,000) against Fox Television
Stations, Inc. ("Fox" or "the Licensee"), licensee of Station KMSP-TV,
Minneapolis, Minnesota ("Station KMSP-TV" or "the Station"). We find
that Fox willfully violated section 317 of the Communications Act, as
amended ("the Act"), and the Commission's sponsorship identification
rule, section 73.1212 of the Commission's rules.
II. BACKGROUND
2. This case arises from a complaint jointly filed by Free Press and the
Center for Media and Democracy ("CMD") alleging that Fox's Station
KMSP-TV aired a Video News Release ("VNR") produced for General Motors
without also airing the required sponsorship identification
announcement. The Enforcement Bureau ("Bureau") issued a letter of
inquiry to the Licensee concerning the allegations raised in the
Complaint. Fox responded to the LOI and stated that Station KMSP-TV
had broadcast a news report that included the General Motors VNR,
which it had received from Fox News Edge, a news service for broadcast
stations affiliated with the Fox Network. Fox also provided a
recording and transcript of the relevant news report during which the
VNR material aired. The news report concerned the consumer demand for
convertible automobiles during the summer. The transcript is
reproduced in its entirety in the Notice of Apparent Liability issued
in this case, along with the anchor's introduction. The recording of
the broadcast at issue showed approximately 12 different shots of the
three General Motors convertibles mentioned in the transcript, and no
other convertibles or other automobiles were either shown or
mentioned.
3. Fox, in its LOI Response, also argued that no sponsorship
identification announcement was required for the inclusion of the
General Motors VNR material in Station KMSP's news report because
neither the Station nor any of its employees received or was promised
consideration of any kind in exchange for broadcasting the VNR. In
addition, Fox argued that the Station did not believe that it received
any reports from any third party, including the provider of the VNR,
that such party had received consideration in connection with the
preparation of the content. Fox further argued that its use of the
General Motors VNR material was "not substantively different from a
newspaper's use of editorial content gleaned from press releases,"
pointing out that the Commission has specifically recognized that a
broadcaster is not required to make a sponsorship identification
announcement in cases in which "[n]ews releases are furnished to a
station [...], and editorial comment therefrom is used on a program."
In addition, Fox objected to the LOI and its inquiries on First
Amendment grounds, arguing that they represented an impermissible
encroachment on the Station's editorial discretion.
4. The NAL set forth the sponsorship identification requirements of
section 317(a)(1) of the Act and section 73.1212(a) of the
Commission's rules, requiring an announcement at the time the matter
is aired whenever that matter is broadcast in exchange for valuable
consideration. In addition, the NAL set forth the proviso to section
317(a)(1) of the Act, as implemented in section 73.1212(a) of the
Commission's rules, which generally provides an exception to the
sponsorship identification requirements for material "furnished
without a charge or at a nominal charge for use on, or in connection
with, a
broadcast." In accordance with the proviso, a disclosure is required for
material furnished without charge or at nominal charge when the use of the
material involves "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."
5. In the NAL, we considered whether Station KMSP-TV's use of VNR
material fell outside the section 317(a)(1) proviso such that Fox was
required to provide a sponsorship identification announcement for that
material. Our analysis was informed by illustrative examples, provided
by Congress at the time that it adopted the proviso, in order to
explain whether particular material would trigger the obligation to
provide sponsorship identification. We rejected Fox's argument relying
on Example 11 from the House Report, which pertains to a "news
release" and "editorial comment therefrom." Instead, we found that the
VNR material broadcast on Station KMSP-TV is more closely analogous to
Example 26 from the House Report, describing the use of a promotional
film provided by a bus company, because rather than merely quoting
from a press release, the Station broadcast the script and video
footage of three different General Motors convertibles. Example 26
provides that no announcement is required for a promotional film in
which a company's products or services are clearly identifiable and
"shown fleetingly ... in a manner reasonably related" to the subject
matter of the film, but that announcement is required if the company's
products or services are clearly identifiable and "shown to an extent
disproportionate to the subject matter of the film." We concluded that
the identification of General Motors products in Station KMSP-TV's
report exceeded an identification that was reasonably related to the
subject matter of the programming at issue, which, as stated above,
was the consumer demand for convertible automobiles during the summer.
Specifically, the VNR focused exclusively on General Motors products
and contained extensive images of the three General Motors
convertibles identified by name in the report. In addition, we found
that the VNR's portrayal of General Motors's overall prospects for
success based on the popularity of its new vehicle models was
disproportionate to the subject matter of the program segment. As a
result, we found that the VNR material aired on the Station does not
fall within the proviso, which is directed to material that contains
only "fleeting or transient" references to products or brand names. We
ruled that Fox's airing of the VNR material on Station KMSP-TV's June
19, 2006, news program without the required sponsorship identification
announcement constituted an apparent violation of section 317 of the
Act and section 73.1212 of the Commission's rules and proposed a
forfeiture in the amount of four thousand dollars ($4,000).
6. In addition, we rejected Fox's arguments that the proposed enforcement
action impermissibly interferes with its First Amendment rights or
violates the anti-censorship provisions of section 326 of the Act. The
NAL specifically recognized that Fox is free to exercise its
newsgathering and editorial functions by making independent decisions
concerning the selection and presentation of news. The NAL explained
that the Commission's sponsorship identification rules are disclosure
requirements and do not restrict speech. Similar disclosure
requirements have been upheld against First Amendment challenges, and
the Commission has the obligation to administer statutory provisions
requiring such disclosures. For these reasons, we found that Fox
failed to demonstrate how the enforcement action chilled the Station's
speech or otherwise violated the First Amendment or the Act.
7. Fox filed its response to the NAL on April 8, 2011, and contends that
the Bureau should cancel the proposed forfeiture. Fox argues that the
sponsorship identification requirements of section 317(a)(1) and
section 73.1212 of the Commission's rules do not apply to Station
KMSP-TV's airing of the General Motors VNR because the Station did not
receive consideration in exchange for including the material in its
newscast. Fox also, for the first time in this proceeding, claims that
Station KMSP-TV paid for the VNR material through its subscription to
and payment for the Fox News Edge service. In addition, Fox argues
that the NAL impermissibly encroaches on Station KMSP-TV's news
judgments. Specifically, Fox asserts that the Bureau erred by failing
to find that its use of the General Motors VNR material was exempt
from sponsorship identification announcements under the Example 11
exemption for news releases and by relying instead on the bus
company's promotional travel film in Example 26. Fox also argues that
the 15-day deadline for it to file a response to the NAL was not
reasonable.
8. After receiving Fox's NAL Response, the Bureau issued a letter to Fox
concerning its claim that the Station paid for the VNR material. Fox
responded to the April 21st Letter and provided additional information
concerning Fox News Edge and the intercompany transfers through which
it claimed that Station KMSP-TV paid for the General Motors VNR
material.
III. DISCUSSION
A. Fox's Argument that the Sponsorship Identification Rules Do Not
Apply Because it Paid Fox News Edge for the VNR Material Lacks
Merit
9. Fox reiterates its argument that Station KMSP-TV did not receive any
valuable consideration in exchange for broadcasting the General Motors
VNR material. Fox further asserts that the sponsorship identification
rules are not applicable to the General Motors VNR material because it
paid Fox News Edge for that material. We conclude that Fox's
assertions lack merit. With respect to Fox's first argument, we note
that it cites no authority, only generally referencing its LOI
Response, and wholly fails to address or dispute our conclusion in the
NAL that Commission precedent makes clear that VNR material may
constitute valuable consideration that may require a sponsorship
identification announcement under certain circumstances. Consequently,
its argument on this point does not persuade us to disrupt the NAL's
conclusion.
10. With respect to its further assertion, we note that the Commission has
recognized that when program materials are sold in a commercial
setting to a broadcaster for use on the air, the provision of the
programming may be wholly unrelated to any desire to promote a
particular product or message, and "it can be assumed that the
broadcaster has significant independent motivation to air the
material," so that the factors underlying the sponsorship
identification regulations' application to free, or nearly free,
programming do not apply. Based on Fox's response to the April 21st
Letter, we cannot conclude that such circumstances are present here.
Fox News Edge is owned and operated by Fox News Network, LLC, a wholly
owned subsidiary of Fox Television Stations, Inc., which is the
licensee of Station KMSP-TV. Fox News Edge received the General Motors
VNR unsolicited and did not pay any form of consideration for the VNR
material. In addition, Fox's response indicates that Station KMSP-TV's
alleged payments for the VNR material were not arms' length
transactions. Station KMSP-TV accessed the VNR material through Fox
News Edge, but does not have a written subscription agreement with Fox
News Edge, nor does it make any form of cash payment to Fox News Edge.
The Station, like other Fox owned and operated stations, makes monthly
intercompany accounting transfers to the Fox Television Stations, Inc.
general ledger account through an expense account specifically
provided for the Fox News Edge service. Station KMSP-TV debits its
expense account for Fox News Edge, a credit is made to the Fox
Television Stations, Inc. "Home Office Account," and there are
subsequent transactions in which the Fox Television Stations, Inc.
account is debited and Fox News Edge ultimately is credited for its
service. Fox's response does not demonstrate that the transactions are
arms' length; instead, they represent little more than intercompany
accounting ledger entries of Fox and its wholly owned subsidiaries.
Based on the foregoing, we find that Fox failed to demonstrate that
section 317(a)(1) of the Act and section 73.1212(a) of the
Commission's rules do not apply to its use of the General Motors VNR
material.
A. Fox Has Not Demonstrated that the Bureau Erred by Finding that
Station KMSP-TV was Required to Air a Sponsorship Identification
Announcement for the VNR Material Aired on Station KMSP-TV
11. Fox also argues in the alternative that the sponsorship identification
rules do not apply to the General Motors VNR material because it was a
news release that is exempted from the rules' disclosure requirements.
Specifically, Fox argues that the Bureau "erred by ignoring the
exception Congress created (and the Commission adopted) for `news
releases' (Example 11) and by relying instead on their approach toward
a promotional `travel film' (Example 26)." Fox further contends that
the news release exception represents Congress's appropriate
sensitivity to government intrusion into the news judgment of
broadcasters arising from the First Amendment. Fox argues that the
Bureau's analysis of the General Motors VNR material under Example 26
impermissibly intrudes into and second-guesses its news judgment in
order to determine whether the identification of General Motors
products exceeded an identification that was reasonably related to the
subject matter of the news segment.
12. We find Fox's argument unpersuasive, for the reasons set forth in the
NAL. Fox does not dispute our conclusion that the subject of Station
KMSP-TV's report was consumer demand for convertible automobiles or
that the VNR focused exclusively on General Motors and its products.
Instead, Fox argues that because the VNR material was used in a news
report, it should be exempted from sponsorship identification
disclosures under Example 11. We disagree, and find no reason to
disturb our conclusion in the NAL that the VNR material aired on
Station KMSP-TV is more closely analogous to Example 26, which
concerns the use of a promotional film showing a product. Example 11
does not exempt news programming. It simply states that no
announcement is required when a station uses editorial comment from a
news release on a program. In contrast, Example 26 concerns a
station's use of a promotional film furnished by a company, in which
case the announcement requirement hinges on the identification of the
company's products or services within the film. This case, which
involves Station KMSP-TV's airing of program material showing GM
products, clearly falls under Example 26 rather than Example 11. Fox's
argument effectively would abrogate Example 26 for anything that may
be labeled a "news release," regardless of the circumstances of its
use by a station. We find no support for such an approach in the Act
itself or the legislative history.
13. In addition, Fox's argument that the sponsorship identification rules
are inapplicable to the General Motors VNR material because it did not
receive any valuable consideration also ignores the applicability of
the section 317(a)(1) proviso, which, as set forth above, requires a
disclosure for material furnished without charge or at nominal charge
when the use of material involves an identification of products or
services beyond what is reasonably related to the use of the product
or service in the broadcast. In the NAL, we found that like the bus
company in Example 26(c), General Motors products were shown to an
extent disproportionate to the subject matter of the news report, such
that the VNR material does not fall within the scope of the proviso,
which is directed to material that contains only "transient or
fleeting" references to products or brand names. Aside from arguing
that Example 11 concerning news releases exempts its use of the
General Motors VNR material, and that our analysis of the VNR material
under Example 26 constitutes an impermissible intrusion into its news
judgment, which we address below, Fox does not dispute our conclusion
that the VNR focused exclusively on General Motors products in its
visual depictions or verbal identifications such that Station KMSP-TV
"impliedly agreed to broadcast an identification beyond that
reasonably related to the subject matter of the film."
14. Contrary to Fox's argument, the Bureau did not impermissibly
scrutinize the content of Station KMSP-TV's news broadcast or dictate
what that news programming must include, as explained in detail in the
NAL. The NAL applies the disclosure requirements of section 317 and
the Commission's sponsorship identification rules in order to
determine whether a sponsorship identification announcement was
required based on Fox's decision to use VNR material in which General
Motors products were shown. Fox does not challenge the Bureau's
authority to administer statutes in its jurisdiction, including
section 317 and the precedent cited in the NAL upholding disclosure
requirements similar to the Commission's sponsorship identification
rules. Moreover, the Commission's investigation and enforcement action
do not prohibit Fox from using the VNR material or require Fox to do
anything more than make the required sponsorship identification
announcement for the use of VNR material in this case.
15. For these reasons, we find that Fox has failed to demonstrate error in
the NAL's conclusion that the sponsorship identification rules
obligated Station KMSP-TV to provide a sponsorship identification
announcement for the VNR material in question to alert viewers that
General Motors was the source of the VNR material seeking to persuade
them. We find by a preponderance of the evidence that Fox's airing of
VNR material on Station KMSP-TV's June 19, 2006 news program without
providing a sponsorship identification announcement violated section
317 of the Act and section 73.1212 of the Commission's rules.
A. The Fifteen Day Period for Fox's NAL Response was Reasonable under
Section 1.80 of the Commission's Rules
16. Section 1.80 of the Commission's rules provides that when the Bureau
issues a Notice of Apparent Liability, the "[r]espondent will be
afforded a reasonable period of time (usually 30 days from the date of
the notice) to show, in writing, why a forfeiture penalty should not
be imposed or should be reduced, or to pay the forfeiture." The
Commission's rules do not mandate a 30-day response period, and the
Bureau has the discretion to set a response period that is less than
30 days, as long as the shortened period is reasonable. The Commission
has previously held that providing a response period of less than 30
days is reasonable where, as in this case, there are potential statute
of limitations concerns.
17. Fox claims that the fifteen day response period was not reasonable
based on the length of time that had elapsed between the filing of its
LOI Response in this case and the release of the NAL. Fox, however,
did not submit any evidence of actual harm occasioned by the 15-day
response period and, in fact, substantively responded to the NAL
within the 15-day period afforded for such response. Moreover, the
April 21st Letter provided Fox an additional 30-day period to submit
information in support of its NAL Response. Accordingly, we conclude
that the time provided for its response was reasonable.
A. Fox's Violation of Section 317 of the Act and the Commission's
Sponsorship Identification Rules Warrant the Imposition of a
Forfeiture
18. The proposed forfeiture in this case was assessed in accordance with
section 503(b)(1) of the Act, section 1.80 of the Commission's rules,
and the Commission's forfeiture guidelines set forth in its Forfeiture
Policy Statement. In assessing forfeitures, section 503(b)(2)(E) of
the Act requires that we take into account "the nature, circumstances,
extent, and gravity of the violation, and with respect to violator,
the degree of culpability, any history of prior offenses, ability to
pay and such other matters as justice may require." 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.
19. We have examined Fox's responses to the NAL and the April 21st Letter
pursuant to the aforementioned statutory factors, our rules and the
Forfeiture Policy Statement, and find by a preponderance of the
evidence that Fox willfully violated section 317 of the Act and
section 73.1212 of the Commission's rules by failing to provide the
required sponsorship identification announcement for the VNR material
used in the Station's June 19, 2006, broadcast. We conclude that Fox
is liable for a forfeiture in the amount of four thousand dollars
($4,000).
IV. ORDERING CLAUSES
20. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.311,
0.314 and 1.80 of the Commission's rules, that Fox Television
Stations, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
four thousand dollars ($4,000) for its willful violation of section
317 of the Communications Act of 1934, as amended, and section 73.1212
of the Commission's rules.
21. IT IS FURTHER ORDERED, that payment of the forfeiture shall be made in
the manner provided for in section 1.80 of the Commission's rules by
close of business on July 18, 2011. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for enforcement pursuant to section 504(a) of
the Act. 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. must also send electronic notification on the date said payment
is made to Terry.Cavanaugh@fcc.gov, Melanie.Godschall@fcc.gov,
Anjali.Singh@fcc.gov and Kenneth.Scheibel@fcc.gov.
22. IT IS FURTHER ORDERED, that a copy of this NAL shall be sent, by
Certified Mail/Return Receipt Requested, to Joseph M. Di Scipio, Vice
President, Legal and FCC Compliance, Fox Television Stations, Inc.,
444 North Capitol Street, N.W., Suite 740, Washington, D.C. 20001.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
See 47 U.S.C. S: 317(a)(1); 47 C.F.R. S: 73.1212.
See Complaint of Timothy Karr, Campaign Director, Free Press, and Diane
Farsetta, Senior Researcher, Center for Media and Democracy, dated
November 14, 2006 ("Complaint").
See Letter from Hillary S. DeNigro, Chief, Investigations & Hearings
Division, Enforcement Bureau, to Fox Television Stations, Inc., dated
April 26, 2007 ("LOI").
See Letter from John C. Quale, Esquire, Skadden, Arps, Slate, Meagher &
Flom LLP, Counsel for Fox Television Holdings, Inc., and Fox Television
Stations, Inc., to Marlene H. Dortch, Secretary, Federal Communications
Commission, dated June 25, 2007 ("LOI Response"), at 3 & n.6. The LOI
Response was filed on behalf of both Fox and Fox Television Holdings,
Inc., and stated that Fox Television Holdings, Inc. wholly owns Fox
Television Stations, Inc., the licensee of Station KMSP-TV. See id. at
n.1.
See id. at 3, 5 & Exh. A.
See Fox Television Stations, Inc., Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 3964 (Enf. Bur. 2011) ("NAL").
See id. at 3966 P: 5. The three General Motors convertibles mentioned in
the news report were: the Pontiac Solstice, the Saturn Sky, and the
Pontiac G6. See id.
See LOI Response at 6-9.
See id. at 7 (citing In re Applicability of Sponsorship Identification
Rules, Public Notice, 40 FCC 141 (1963) ("1963 Public Notice"), as
modified, 40 Fed. Reg. 41936 (1975), at Example 11). The 1963 Public
Notice was updated in 1975. See Applicability of Sponsorship
Identification Rules, Public Notice, 40 Fed. Reg. 41936 (1975) ("1975
Public Notice").
See LOI Response at 1.
See NAL, 26 FCC Rcd at 3966-67 P: 7. The NAL explained that VNR material
constitutes "valuable consideration" within the meaning of section 317
that may require a sponsorship announcement under some circumstances. Id.
at 3968 P: 11.
See id. at 3966-67 P:P: 7-8. Specifically, section 73.1212(a) provides:
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 either 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.
See 47 U.S.C. S: 317(a)(1); 47 C.F.R. S: 73.1212(a)(2).
See NAL, 26 FCC Rcd at 3969 P:P: 12-14.
See id. at 3967-68 P:P: 9-10; H.R. Rep. No. 1800, 86th Cong., 2nd Sess. 1,
at 12-17 (1960) ("House Report"). The Commission included the twenty-seven
examples from the House Report and nine additional examples in public
notices released following adoption of revised sponsorship identification
rules in 1963 and 1975. See 1975 Public Notice, supra note 9; 1963 Public
Notice, supra note 9.
See NAL, 26 FCC Rcd at 3968 P: 10. See also 1975 Public Notice, 40 Fed.
Reg. at 41938, Example 11; 1963 Public Notice, 40 FCC at 146, Example 11.
See NAL, 26 FCC Rcd at 3968 P: 10.
See 1975 Public Notice, 40 Fed. Reg. at 41939, Example 26; 1963 Public
Notice, 40 FCC at 148, Example 26.
See id. at 3969 P:P: 13-14.
See id. at 3969 P: 13.
See id.
See id. at 3969 P: 14.
See id. at 3969 P: 14, 3971-72 P:P: 18-19.
See id. at 3970-71 P: 17.
See id.
See id.
See id.
See id.
See Response and Opposition of Fox Television Stations, Inc. to Notice of
Apparent Liability for Forfeiture, filed April 8, 2011 ("NAL Response").
We also received an amicus filing on behalf of the Radio Television
Digital News Association ("RTNDA") supporting Fox's NAL Response. See
Letter from Kathleen A. Kirby, Esquire, and Ari Meltzer, Esquire, Wiley
Rein LLP, Counsel for the Radio Television Digital News Association, to
Marlene H. Dortch, Secretary, Federal Communications Commission, dated
April 28, 2011. RTNDA supports Fox's NAL Response and urges the Bureau to
cancel the NAL and rescind the underlying interpretation of the
sponsorship identification rules. Specifically, RTNDA asserts that the
sanctions proposed in the NAL represent a flawed application of the
Commission's sponsorship identification rules and an unconstitutional form
of content regulation especially because Fox actually paid for the
material at issue. We find nothing new in RTNDA's filing that Fox has not
already raised in this proceeding. Accordingly, we need not address
RTNDA's arguments separately herein.
See NAL Response at 1-2.
See id. at 3-4.
See id. at n.1.
See Letter from Theresa Z. Cavanaugh, Acting Chief, Investigations &
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to Fox Television Stations, Inc., dated April 21, 2011 ("April 21st
Letter").
See Letter from Joseph M. Di Scipio, Vice President, Legal and FCC
Compliance, Fox Television Stations, Inc., to Marlene H. Dortch,
Secretary, Federal Communications Commission, dated May 23, 2011 at 1, 5
("Supplemental Response").
See NAL Response at 2.
See NAL, 26 FCC Rcd at 3968 P: 11.
See Complaint of National Ass'n for Better B'casting against KCOP(TV),
Memorandum Opinion and Order, 4 FCC Rcd 4988, 4990 P: 18 (1989).
See Supplemental Response at 2.
See id. at 3-4.
See id. By contrast, other non-owned Fox affiliate stations enter into
individually negotiated news service subscription agreements with Fox News
Network, LLC and apparently agree to monthly cash payments for access to
Fox News Network's news service content. See id. at 2 n.5 & Exh. B.
See id.
See id.
See NAL Response at 3-4.
See id. at 4.
See id. In addition, Fox reiterates and incorporates into its NAL Response
First Amendment and other arguments raised in its LOI Response. See id.
These arguments were fully addressed in the NAL, and Fox has not
demonstrated error or any other basis for disturbing our conclusions in
the NAL that our enforcement of the disclosure requirements of section 317
and the sponsorship identification rules does not impermissibly chill or
restrict the Station's speech and that the Station's airing of the General
Motors VNR material without the required sponsorship identification
announcement violated section 317 and section 73.1212 of the Commission's
rules. Accordingly, we need not address these arguments again in this
Order.
See id.
See NAL, 26 FCC Rcd at 3968 P: 10.
See 1975 Public Notice, 40 Fed. Reg. at 41938.
See id. at 41939.
We reject Fox's suggestion that Example 26 is inapplicable here because it
involves a "travel film," as opposed to any other promotional film.
See NAL, 26 FCC Rcd at 3969 P: 14.
Id. at 3969 P: 13.
See id. at 3969-70 P:P: 15-17.
See id. at 3970-71 P: 10.
See 47 U.S.C. S: 317; 47 C.F.R. S: 73.1212(a)(2).
See 47 C.F.R. S: 1.80(f)(3) (emphasis added).
See 47 C.F.R. S: 1.80. See also Complaints Against Various Television
Licensees Concerning Their February 25, 2003 Broadcast of the Program
"NYPD Blue," Forfeiture Order, 23 FCC Rcd 3147, 3159-60 P: 28 (2008),
vacated on other grounds sub nom. ABC, Inc. v. Fed. Communications Comm'n,
Nos. 08-0841-ag, 08-1424-ag, 08-1781-ag, 08-1966-ag (2d Cir. Jan. 4, 2011)
("NYPD Blue Forfeiture Order").
See NYPD Blue Forfeiture Order, 23 FCC Rcd at 3158 P: 25 n.84. (finding a
17-day response period reasonable in light of potential statute of
limitations concerns under 28 U.S.C. S: 2462 relating to the Department of
Justice's enforcement of forfeiture penalties).
See NAL Response at n.1.
See NYPD Blue Forfeiture Order, 23 FCC Rcd at 3159-60 P: 28.
See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80; 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 (1997),
recons. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy Statement).
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312 and for any other relevant section of the act
(e.g., section 503) . . . . As defined[,] . . . `willful" means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. . . . . The definitions are
intended primarily to clarify the language in section 312 and 503, and are
consistent with the Commission's application of those terms . . . .").
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 47 U.S.C. S:S: 317, 503(b).
See 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
See 47 U.S.C. S: 317(a)(1); 47 C.F.R. S: 73.1212.
See 47 U.S.C. S: 504(a).
(continued....)
Federal Communications Commission DA 11-1170
2
Federal Communications Commission DA 11-1170