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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
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 24, 2011 Released: March 24, 2011
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), 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"), for its apparent willful violation of section 317
of the Communications Act, as amended ("the Act"), and section 73.1212
of the Commission's rules. As discussed below, we find that Fox
apparently violated section 317 of the Act and the Commission's
sponsorship identification rule.
II. BACKGROUND
2. The Commission received a complaint jointly filed by Free Press and
the Center for Media and Democracy ("CMD") alleging that Fox's Station
KMSP-TV had aired a Video News Release ("VNR") produced for General
Motors without also airing a sponsorship identification announcement.
The Enforcement Bureau ("Bureau") issued a letter of inquiry to the
Licensee concerning the allegations raised in the Complaint.
3. Fox responded to the LOI and stated that Station KMSP-TV had broadcast
a news report on June 19, 2006, relating to new car designs that
included the General Motors VNR. Fox further stated that it had
received the VNR from Fox News Edge, a news service for broadcast
stations affiliated with the Fox Network.
4. Fox provided a recording and transcript of the broadcast at issue.
Station KMSP-TV's anchor introduced the VNR as follows: "Well,
convertibles are a sure sign of summer, and even though some makes and
models of cars are actually seeing a purchase slowdown, Andre Schmertz
finds out that's not the case with the open air rides." The
transcript, in its entirety, is as follows:
Voiceover: Thinking of getting a convertible now that summer is here? Well
think fast. The buzz around this year's convertibles, many brand-new and
affordable, means there may not be many left.
[Caption: Bob Lutz, General Motors] "The Solstice is sold out. The Sky is
sold out. The Pontiac G6 convertible is sold out."
Bob Lutz, who has worked at all three domestic manufacturers, is now the
head of product development at General Motors. He was hired 5 years ago to
revive GM's much criticized product line - and the hope is that the
success he's had bringing these new convertibles to market will continue
across the entire company.
[Caption: Jean Jennings, Automobile Magazine] "Does General Motors have
the ability to make cars that people want? Yes they do. It's absolutely
clear. This is the key to their survival and on top of that, I have seen,
as many journalists have, cars that are scheduled for the next couple of
years and I'll tell you that if those cars were on the road right now
today, I don't think they'd be in this jam at all."
But Lutz knows [that] making higher quality automobiles is only part of
the equation - changing a generation[']s worth of less-than-favorable
opinions is the real battle.
"What we're seeing is the old beliefs about General Motors, which we
probably earned over twenty, twenty-five years. The old beliefs of all our
cars look the same, our quality isn't very good, the vehicles use a lot of
gas, none of that stuff is true anymore but these perceptions linger."
However[,] the good looking convertibles coming from GM may be changing
that perception, as well as the company's fortunes. America's largest
manufacturing company actually turned a profit in the first quarter of
`06. [...].
5. The recording of the broadcast at issue showed approximately 12
different shots of the three convertibles mentioned in the script: the
Pontiac Solstice, the Saturn Sky, and the Pontiac G6. All are General
Motors cars. No other convertibles or other cars were either shown or
mentioned.
6. Although Fox acknowledged that it aired the VNR, and responded to the
inquiries set forth in the LOI, it also objected to the inquiries as
an impermissible encroachment on the Station's editorial discretion.
In addition, Fox stated its belief that no sponsorship identification
announcement was required for the inclusion of this VNR material in
the Station's June 19, 2006, news report. Specifically, Fox stated
that: neither the Station nor any of its employees received or was
promised consideration of any kind in exchange for broadcasting the
VNR; none of the content constituted political broadcast matter or
broadcast matter relating to any controversial issues of public
importance; and 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 VNR
material in the Station's news report was no different from the use of
a press release, and that the Commission has specifically recognized
that a broadcaster is not required to make a sponsorship announcement
in cases in which news releases are furnished to a station and
editorial comment therefrom is used during a program.
III. DISCUSSION
A. Sponsorship Identification Laws
7. Section 317(a)(1) of the Act and section 73.1212(a) of the
Commission's rules require broadcast stations to broadcast an
announcement disclosing whenever any matter is broadcast in exchange
for valuable consideration "directly or indirectly paid or promised to
or charged or accepted by, the station so broadcasting" at the time
the material is aired. 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 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.
Section 73.1212(a) of the Commission's rules, which implements section
317(a)(1) of the Act further 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 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.
8. The Commission has explained that the sponsorship identification rules
are "grounded in the principle that listeners and viewers are entitled
to know who seeks to persuade them." The disclosures required by the
sponsorship identification rules provide listeners and viewers with
information concerning the source of material in order to prevent
misleading or deceiving those listeners and viewers. As set forth
above, pursuant to section 317 and the Commission's implementing rule,
the obligation to provide such a disclosure for material "furnished
without a charge or at a nominal charge for use on, or in connection
with, a broadcast" is triggered when the use of the material falls
outside of the proviso because it 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."
9. When Congress amended section 317 in 1960 and adopted the proviso, it
provided twenty-seven examples regarding the types of consideration
that would trigger the obligation to provide sponsorship
identification and those that would not because they fell within the
proviso. The Commission included those examples plus nine more in
public notices released following its adoption of revised sponsorship
identification rules in 1963 and 1975. Example 26 provides as follows:
26. (a) A bus company prepares a scenic travel film which it furnishes
free to broadcast stations. No mention is made in the film of the company
or its buses. No announcement is required because there is no payment
other than the matter furnished and there is no mention of the bus
company.
(b) Same situation as in (a), except that the bus, clearly identifiable as
that of the bus company which supplied the film, is shown fleetingly in
highway views in a manner reasonably related to that travel program. No
announcement is required.
(c) Same situation as in (a), except that the bus, clearly identifiable as
that of the bus company which supplied the film, is shown to an extent
disproportionate to the subject matter of the film. An announcement is
required, because in this case by the use of the film the broadcaster has
impliedly agreed to broadcast an identification beyond that reasonably
related to the subject matter of the film.
10. Fox argues that the section 317(a)(1) proviso does not apply to
broadcasters' use of VNR material, relying on Example 11 from the
House Report. Example 11 pertains to a "news release" and "editorial
comment therefrom" and states that no sponsorship identification
announcement is required. Example 26, in contrast, pertains to a film
showing a product. We find that the VNR material broadcast on Station
KMSP-TV is more closely analogous to Example 26 because, rather than
merely quoting editorial comment from a press release, the Station
broadcast the above-quoted script and video footage of three different
General Motors convertibles. Under these circumstances, Example 26,
which concerns the use of a promotional film provided by a bus
company, states that an announcement is required if the bus is
identified "to an extent disproportionate to the subject matter of the
film."
11. Commission precedent makes clear that VNR material constitutes
"valuable consideration" within the meaning of section 317 that may
require a sponsorship announcement under some circumstances.
Furthermore, in 2005, the Commission reminded broadcast licensees that
applicable statutory provisions and the Commission's rules generally
require them to clearly disclose the nature, source and sponsorship of
program matter that they air, including VNRs. The Commission also has
warned that it will take enforcement action against broadcast stations
that do not comply with the disclosure responsibilities set forth in
the rules.
B. Fox Failed to Provide Requisite Sponsorship Identification Announcement
12. We now consider whether Fox was required to provide a sponsorship
identification announcement for the VNR material broadcast on Station
KMSP-TV. In other words, did the use of the VNR material fall outside
of the section 317(a)(1) proviso? As set forth above, Example 26 from
the House Report indicates that no announcement is required for a
promotional film in which the 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 an announcement
is required if the company's products or services are "shown to an
extent disproportionate to the subject matter of the film."
13. The subject matter of the Station's report here, based on the
recording and transcript, was the consumer demand for convertible
automobiles during the summer. Both the announcer's introduction to
the story and the beginning of the story itself focused on the
desirability of such cars. Yet, the VNR focused exclusively on General
Motors products in its visual depictions or verbal identifications of
products, and it contained extensive images of the General Motors
products - specifically, a total of 12 different shots, some of them
close-up and some of them extended, of three General Motors
convertibles identified by name. By its use of the VNR, Station
KMSP-TV has "impliedly agreed to broadcast an identification beyond
that reasonably related to the subject matter of the film." In
addition, the VNR's portrayal of General Motors' overall prospects for
success based on the popularity of its new vehicle models, including
interview segments with General Motors' head of product development
and an "Automobile Magazine" commentator who stated that "General
Motors ha[s] the ability to make cars that people want," was
disproportionate to the subject matter of the program segment.
14. We conclude that the identification of General Motors products
exceeded an identification that was reasonably related to the subject
matter of the programming at issue. The VNR material in question
therefore does not fall within the scope of the proviso set forth in
section 317 and section 73.1212(a)(2), which is directed to material
that contains only "fleeting or transient" references to products or
brand names. Instead, like the bus company in Example 26(c), General
Motors products were shown to an extent disproportionate to the
subject matter of the report, obligating Station KMSP-TV to provide a
sponsorship identification announcement. Because the material that
aired on Station KMSP-TV fell outside the proviso, a sponsorship
identification announcement was required to alert viewers that General
Motors was the source of the VNR material seeking to persuade them.
For the foregoing reasons, we find that Fox's airing of VNR material
on Station KMSP-TV's June 19, 2006 news program without providing a
sponsorship identification announcement was an apparent violation of
section 317 of the Act and section 73.1212 of the Commission's rules.
C. First Amendment and Press Freedom Arguments
15. Fox argues that the Bureau's investigation of this matter, and the
resulting LOI, represent an impermissible intrusion into the
journalistic and editorial discretion in the presentation of news and
public information that is at the core of the First Amendment's free
press guarantees, and is inconsistent with precedent holding that the
Commission has little authority to interfere with a licensee's
selection and presentation of news and editorial programming. Fox also
asserts that the Bureau's LOI carries a significant risk of chilling
speech because "broadcasters likely will self-censor and eschew
perfectly legitimate speech, rather than expose themselves to
government interference."
16. The Act, Commission rules, and precedent grant the agency broad
authority to investigate complaints of this nature. Section 403
specifically 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 or thing concerning which complaint is authorized to be
made, to or before the Commission by any provision of this chapter, .
. . or relating to the enforcement of any of the provisions of this
chapter." The Act and the Commission's rules also include provisions
authorizing the Commission to require "written statements of fact"
from broadcasters concerning matters within its jurisdiction. The
courts have affirmed the Commission's authority to investigate any
matter relating to the enforcement of the Act and to obtain the
information necessary to perform such an investigation. Thus, the
Commission generally has great discretion in seeking information from
its regulatees, including broadcast licensees, on any issue within the
Commission's jurisdiction in order to enable it to discharge its
statutory mandates.
17. We also find unpersuasive Fox's assertions that the Bureau's
enforcement action in this case impermissibly interferes with its
First Amendment rights or violates the anti-censorship provisions of
section 326 of the Act. Section 317 and the Commission's sponsorship
identification rules are disclosure requirements, and do not restrict
speech. All the Commission's rules require in terms of an announcement
is a statement at the time of broadcast that program matter is
furnished and on whose behalf. Thus, Fox is free to exercise its
newsgathering and editorial functions to determine what news to cover
and how such news should be presented. In this regard, the Supreme
Court has emphasized that disclosure requirements are a less
restrictive alternative to direct speech restrictions that may serve
important government interests. The Court has ruled that similar
disclosure requirements do not violate the First Amendment. The precedents
cited by Fox do not support its argument. Unlike the cases cited by Fox,
section 317 of the Act provides the Commission with the authority to
determine whether material aired by Station KMSP-TV required sponsorship
identification disclosures. Although the Commission must avoid intrusion
on a broadcaster's editorial judgments, it cannot abrogate its
responsibility to administer statutes within its jurisdiction, including
section 317. In sum, Fox has failed to demonstrate how the burden of
responding to inquiries concerning whether Station KMSP-TV's aired
sponsorship announcements can be credibly deemed to chill the Station's
speech.
D. Proposed Action
18. 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.
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.
19. The Commission's forfeiture guidelines establish a base forfeiture
amount of four thousand dollars ($4,000) for sponsorship
identification violations. In addition, 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." Based upon our review
of the record in this case and the statutory factors identified above,
we find that Fox is apparently 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 hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of four thousand dollars ($4,000) for its
apparent willful violation of the sponsorship announcements
requirements 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, pursuant to section 1.80 of the Commission's
rules, that within fifteen (15) days of the release date of this NAL,
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.
22. 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.
23. 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. The written
statement shall be mailed to the 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 NAL/Account Number referenced above. To the extent
practicable, any response should also be sent by e-mail to
Terry.Cavanaugh@fcc.gov, Melanie.Godschall@fcc.gov,
Anjali.Singh@fcc.gov, and Kenneth.Scheibel@fcc.gov.
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. IT IS FURTHER ORDERED, that the Complaint IS GRANTED to the extent
indicated herein and IS OTHERWISE DENIED, and the Complaint proceeding
IS HEREBY TERMINATED.
26. IT IS FURTHER ORDERED, that a copy of this NAL shall be sent, by
Certified Mail/Return Receipt Requested, to Fox Television Stations,
Inc., at its address of record and to its counsel, Antoinette C. Bush,
Esquire, Skadden, Arps, Slate, Meagher & Flom LLP, 1440 New York
Avenue, N.W., Washington, D.C. 20005.
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"). 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 & n.6.
See id. at 3, 5 & Exh. A.
See id. at 5 (citing recording submitted in response to Inquiry 1.f).
LOI Response at Exh. A.
See id. at 5 (citing recording submitted in response to Inquiry 1.f).
See LOI Response at 1.
See id. at 5-8.
See id. at 6-9.
See id. at 7.
47 U.S.C. S: 317(a)(1); 47 C.F.R. S: 73.1212(a).
47 U.S.C. S: 317(a)(1). The clause from this subsection stating,
"Provided, That `service or other valuable consideration' shall not
include . . . unless . . . ." is hereinafter referred to as the "proviso."
47 C.F.R. S: 73.1212(a).
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 New Releases by Broadcast Licensees and Cable
Operators, Public Notice, 20 FCC Rcd 8593, 8593-94 (2005) ("2005 Public
Notice").
See Sonshine Family Television, Inc., Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 18686 (2007), Forfeiture Order, 24 FCC Rcd 14830,
14834 P: 12 (2009) (forfeiture reduced, based on licensee's history of
compliance, and paid).
See 47 U.S.C. S: 317(a)(1); 47 C.F.R. S: 73.1212(a)(2).
See H.R. Rep. No. 1800, 86th Cong., 2nd Sess. 1, at 12-17 (1960) ("House
Report").
See In re Applicability of Sponsorship Identification Rules, Public
Notice, 40 FCC 141 (1963) ("1963 Public Notice"). The 1963 Public Notice
was updated in 1975. See Applicability of Sponsorship Identification
Rules, Public Notice, 40 Fed. Reg. 41936 (1975) ("1975 Public Notice").
1975 Public Notice, 40 Fed. Reg. at 41939, Example 26; 1963 Public Notice,
40 FCC at 148, Example 26.
See LOI Response at 7. See also 1975 Public Notice, 40 Fed. Reg. at 41938,
Example 11; 1963 Public Notice, 40 FCC at 146, Example 11.
See 1975 Public Notice, 40 Fed. Reg. at 41938, Example 11; 1963 Public
Notice, 40 FCC at 146, Example 11.
See LOI Response at Exh. A & recording submitted in response to Inquiry
1.f.
1975 Public Notice, 40 Fed. Reg. at 41939, Example 26(c); 1963 Public
Notice, 40 FCC at 148, Example 26(c).
See Comcast Corp., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd
17474, 17477 P: 8, 17478 P:P: 9-10, 17479 P: 11 (Enf. Bur. 2007)
(forfeiture paid). See also Advertising Council Request for Declaratory
Ruling or Waiver Concerning Sponsorship Identification Rules, Order, 17
FCC Rcd 22616 (2002) (credit towards satisfaction of a
statutorily-mandated matching PSA obligation constituted valuable
consideration for airing programming with government-approved anti-drug
and anti-alcohol themes); Westinghouse Broadcasting Co., Inc., Letter by
Direction of the Commission, 40 FCC 28 (1958) (furnishing of films of a
Senate hearing investigating a strike against the Kohler Company to a
television station by the National Association of Manufacturers
constituted "valuable consideration" under section 317).
See Commission Reminds Broadcast Licensees, Cable Operators and Others of
Requirements Applicable to Video News Releases and Seeks Comment on the
Use of Video New Releases by Broadcast Licensees and Cable Operators,
Public Notice, 20 FCC Rcd 8594 (2005) ("2005 Public Notice").
See id.
Compare 1975 Public Notice, 40 Fed. Reg. at 41939, Example 26(b); 1963
Public Notice, 40 FCC at 148, Example 26(b) with 1975 Public Notice, 40
Fed. Reg. at 41939, Example 26(c); 1963 Public Notice, 40 FCC at 148,
Example 26(c).
See LOI Response at Exh. A.
1975 Public Notice, 40 Fed. Reg. at 41939, Example 26(c); 1963 Public
Notice, 40 FCC at 148, Example 26(c).
Comcast Corp., 22 FCC Rcd at 17477.
See 47 U.S.C. S: 317; 47 C.F.R. S: 73.1212(a)(2).
Because we find that Fox was required to provide sponsorship
identification for this material as it fell outside the proviso, we need
not address Fox's arguments that no announcement was required under the
provisions of the Act and the Commission's rules requiring announcements
in connection with broadcasts involving political matters or controversial
issues of public importance and broadcasts for which the broadcaster
receives a report pursuant to section 507 of the Act.
See LOI Response at 1-2 (citing Nat'l Broadcasting Sys., Inc. v.
Democratic Nat'l Comm., 412 U.S. 94, 124 (1973); Dr. Paul Klite, Letter
Decision, 12 Comm. Reg. (P&F) 79, 82 (1998); American Broadcasting
Companies, Inc., Memorandum Opinion and Order, 83 FCC 2d 202, 305 (1980);
Columbia Broadcasting Sys., Inc., Memorandum Opinion and Order, 51 FCC 2d
273 (1975)).
LOI Response at 2.
47 U.S.C. S: 403.
See 47 U.S.C. S: 308(b); 47 C.F.R. S: 73.1015.
See, e.g., Stahlman v. Fed. Communications Comm'n, 126 F.2d 124, 127 (D.C.
Cir. 1942).
See Fed. Communications Comm'n v. Schreiber, 381 U.S. 279, 290 (1965);
U.S. v. Morton Salt Co., 338 U.S. 632, 652-53 (1950) (an agency will not
exceed its investigatory power if its "inquiry is within the authority of
the agency, the demand is not too indefinite and the information sought is
reasonably relevant").
See 47 U.S.C. S: 326.
See 47 C.F.R. S: 73.1212(a).
See Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 914 (2010)
(upholding Bipartisan Campaign Reform Act of 2002 disclaimer and
disclosure requirements for electioneering communications not funded by a
candidate); McConnell v. Fed. Election Comm'n, 540 U.S. 93, 237 (2003)
(rejecting a facial challenge to disclosure requirements contained in 47
U.S.C. S: 315(e)(1)). The Court partially overturned McConnell in Citizens
United, but the portion of McConnell concerning the section 315(e)(1)
disclosure provisions remains good law.
See, e.g., Meese v. Keene, 481 U.S. 465, 480-81 (1987) (upholding the
Foreign Agents Registration Act, which required the labeling of films
distributed by agents of foreign governments to indicate the agent's
identity and the identity of the principal for whom the agent acts,
finding that such disclosures "better enable the public to evaluate the
import of the propaganda," and that striking down the disclosure
requirement under the First Amendment "withholds information from the
public").
See LOI Response at 4 & n.8 (citing Sweezy v. New Hampshire, 354 U.S. 234,
245 (1957); Fed. Election Comm'n v. Machinists Non-Partisan Political
League, 655 F.2d 380, 389 (D.C. Cir. 1981), cert. denied, 454 U.S. 897
(1981)).
See Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S.
94, 102-103 (1973) ("The [First] Amendment should be interpreted so as not
to cripple the regular work of the government. [. . .] Although free
speech should weigh heavily in the scale in the event of conflict, still
the Commission should be given ample scope to do its job.'") (quoting 2 Z.
Chafee, Government and Mass Communications 640-41 (1947)). Cf.
Radio-Television News Directors Assoc'n v. Fed. Communications Comm'n, 184
F.3d 872, 881 (D.C. Cir. 1999) (rules that to "some degree interfere with
the editorial judgment of professional journalists and entangle the
government in day-to-day operations of the media" are "cause for concern,
though not fatal in moderation").
See 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) (providing that any person who is determined by the
Commission to have violated any provision of section 1464 shall be liable
for a forfeiture penalty).
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 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).
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 (1197), recons. denied, 15 FCC 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 47 U.S.C. S:S: 317, 503(b).
See 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1212.
For purposes of the forfeiture proceeding initiated by this NAL, Fox
Television Stations, Inc., and Fox Television Holdings, Inc., shall be the
only parties to this proceeding.
(continued....)
Federal Communications Commission DA 11-521
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Federal Communications Commission DA 11-521