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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
) File No. EB-10-TC-010
Comcast Corporation
) Acct. No. 201132170004
Compliance with the Commission's
) FRN: 0015401581
Closed Captioning Pass-Through Rule
)
)
)
ORDER
Adopted: January 18, 2011 Released: January 18, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau of the Federal Communications
Commission ("Bureau") and Comcast Corporation ("Comcast"). The Consent
Decree terminates investigations initiated by the Bureau regarding
Comcast's compliance with section 79.1(c) of the Commission's rules,
47 C.F.R. S: 79.1(c).
2. The Bureau and Comcast have negotiated the terms of a Consent Decree
that would resolve these matters and terminate the investigation. A
copy of the Consent Decree is attached hereto and incorporated by
reference.
3. After reviewing the terms of the Consent Decree, and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation. We also
conclude that, in the absence of material new information not
previously disclosed to the Commission, the matters raised in the
investigation do not raise any substantial and material questions of
fact regarding Comcast's qualifications to hold an authorization or
license issued by the Commission.
4. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. S: 151(i), and the
authority delegated by sections 0.111 and 0.311 of the Commission's
rules, 47 C.F.R. S:S: 0.111 and 0.311, that the attached Consent
Decree IS ADOPTED.
5. IT IS FURTHER ORDERED that the above-captioned matter IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
) File No. EB-10-TC-010
Comcast Corporation
) Acct. No. 201132170004
Compliance with the Commission's
) FRN: 0015401581
Closed Captioning Pass-Through Rule
)
)
)
CONSENT DECREE
I. INTRODUCTION
1. The Enforcement Bureau of the Federal Communications Commission and
Comcast Corporation, by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Bureau's
Investigation regarding Comcast's compliance with the Closed
Captioning Pass-Through Rule, as defined below.
II. DEFINITIONS
2. For purposes of this Consent Decree, the following definitions shall
apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:
151 et seq.
b. "Adopting Order" means an order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Comcast" or "Company" means Comcast Corporation and its
predecessors-in-interest and successors-in-interest.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Closed Captioning Pass-Through Rule" means 47 C.F.R. S: 79.1(c).
f. "Commission" or "FCC" means the Federal Communications Commission and
all of its bureaus and offices.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. Investigation means the Bureau's investigation regarding Comcast's
compliance with the Closed Captioning Pass-Through Rule initiated by
an April 20, 2010 letter of inquiry.
i. "Parties" means Comcast and the Bureau, each of which is a "Party."
j. "Rules" means those rules and regulations codified in Title 47 of the
Code of Federal Regulations.
III. BACKGROUND
3. Section 79.1(c) of the Commission's rules states:
All video programming distributors shall deliver all programming received
from the video programming owner or other origination source containing
closed captioning to receiving television households with the original
closed captioning data intact in a format that can be recovered and
displayed by decoders meeting the standards of part 15 of this chapter
unless such programming is recaptioned or the captions are reformatted by
the programming distributor.
4. On April 20, 2010, the Enforcement Bureau issued a letter of inquiry
regarding Comcast's compliance with the Closed Captioning Pass-Through
Rule. Comcast responded on June 7, 2010 and described four different
situations in which particular manufacturers' equipment failed to deliver
closed captioning data intact. It supplemented its response on July 21,
2010 to report an additional situation. The Parties entered into an
agreement to toll the statute of limitations for four of the situations on
September 22, 2010.
IV. TERMS OF AGREEMENT
5. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by incorporation
of such provisions by reference in the Adopting Order without change,
addition, modification, or deletion. Comcast's decision to enter into this
Consent Decree is expressly contingent upon the Bureau's issuance of an
Adopting Order.
6. Jurisdiction. Comcast agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and has the authority to
enter into and adopt this Consent Decree.
7. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. Upon the Effective Date, the
Adopting Order and this Consent Decree shall have the same force and
effect as any other order of the Commission. Any violation of the Adopting
Order or of the terms of this Consent Decree shall constitute a separate
violation of a Commission order, entitling the Commission to exercise any
rights and remedies attendant to the enforcement of a Commission order.
8. Termination of Investigation. In express reliance on the covenants and
representations contained herein, and to avoid expenditure of additional
public resources, the Bureau agrees to terminate the Investigation. In
consideration for the termination of these matters and in accordance with
the terms of this Consent Decree, Comcast agrees to the terms, conditions,
and procedures contained herein. The Bureau agrees that, in the absence of
new material evidence related to these matters, it will not use the facts
developed in the Investigation through the Effective Date, or the
existence of this Consent Decree, to institute, on its own motion, or
refer to the Commission, any new proceeding, formal or informal, or take
on its own motion, or refer to the Commission, any action against Comcast,
concerning the matters that were the subject of the Investigation, or with
respect to Comcast's basic qualifications, including its character
qualifications, to be a Commission licensee or hold other Commission
authorizations.
9. Compliance Plan. To resolve and terminate the Investigation, Comcast
agrees to implement a Compliance Plan that shall include the terms set
forth below.
A. Review of, and Changes to, Closed-Captioning Pass-Through Testing
Procedures. Within 120 days of the Effective Date, Comcast shall conduct
and complete a review of its procedures for testing equipment to ensure
compliance with the Closed Captioning Pass-Through Rule. Within 60 days
thereafter, Comcast shall make all changes identified in its review and
testing procedures that are necessary to ensure compliance with the Closed
Captioning Pass-Through Rule, and shall use the revised procedures to test
any equipment (including models already in use by customers) as necessary
to ensure compliance with such rule. During the period of this Compliance
Plan, Comcast shall regularly monitor the effectiveness of its testing
procedures, and shall make additional changes in its testing procedures as
necessary for compliance with the Closed Captioning Pass-Through Rule.
B. Reporting Non-Compliance. Comcast shall report any non-compliance with
this Consent Decree, or the Closed Captioning Pass-Through Rule, to the
Bureau within thirty (30) days after the discovery of such non-compliance
or violation. For purposes of this Paragraph 9.B., Comcast need not report
an incident of non-compliance with the Closed Captioning Pass-Through Rule
involving an individual set top box (as opposed to a model of a set top
box), so long as the incident is isolated and not part of a pattern that
reasonably suggests a defect in the model of the set top box.
C. Compliance Report. Comcast shall provide a Compliance Report from an
officer, as an agent of the Company, one (1) year after the Effective
Date, and two (2) years after the Effective Date, stating that the officer
has personal knowledge that the (i) Company has established operating
procedures intended to ensure compliance with this Consent Decree,
together with an accompanying statement explaining the basis for the
officer's certification; (ii) the Company has been utilizing those
procedures for the entire term of the Consent Decree; and (iii) the
officer is not aware of any instances of non-compliance with this Consent
Decree that have not otherwise been disclosed pursuant to subsection (B)
above. The certification must comply with Section 1.16 of the Rules and be
subscribed to as true under penalty of perjury in substantially the form
set forth therein. Such certification must be mailed within fifteen (15)
days of the one (1) and the two (2) year anniversary of the Effective
Date, and Comcast must mail its certification to the Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554,
and must include the file number listed above. Comcast shall also send an
electronic copy of its certification to other Telecommunications Consumers
Division staff as directed by the Division Chief.
D. Term of the Compliance Plan. The term of the Compliance Plan shall
expire two (2) years after the Effective Date.
10. Voluntary Contribution. In consideration for the termination of the
Investigation in accordance with the terms of this Consent Decree, Comcast
agrees to make a voluntary contribution to the United States Treasury,
without further protest or recourse to a trial de novo, in the amount of
five hundred thousand dollars ($500,000) within thirty (30) days after the
Effective Date. This voluntary payment does not constitute a forfeiture
under the Act or FCC rules. The payment must be made by check or similar
instrument, payable to the Order of the Federal Communications Commission.
The payment must include the Account Number and FRN Number referenced in
the caption to the Adopting Order. Payment by check or money order may be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis,
MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis,
MO 63101. Payments by wire transfer may be made to ABA Number 021030004,
receiving bank Federal Reserve Bank of New York and account number
27000001. Comcast will also send electronic notification to the Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, on the date said payment is made.
11. Waivers. Provided the Bureau issues an Adopting Order, Comcast waives
any and all rights it may have to seek administrative or judicial
reconsideration, review, appeal or stay, or to otherwise challenge or
contest the validity of this Consent Decree and the Adopting Order.
Comcast shall retain the right to challenge the Commission's
interpretation of the Consent Decree or any terms contained herein, and of
the Closed Captioning Pass-Through Rule. If either Party (or the United
States on behalf of the Commission) brings a judicial action to enforce
the terms of the Adopting Order or this Consent Decree, neither Comcast
nor the Bureau shall contest the validity of the Consent Decree or the
Adopting Order, and Comcast and the Bureau shall waive any statutory right
to a trial de novo with respect to the issuance of the Adopting Order and
shall consent to a judgment incorporating the terms of this Consent
Decree. Comcast hereby agrees to waive any claims it may otherwise have
under the Equal Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S:
1.1501 et seq., relating to the matters contained in this Consent Decree.
12. Invalidity. In the event that this Consent Decree is rendered invalid
by a court of competent jurisdiction, it shall become null and void, and
may not be used in any manner in any legal proceeding.
13. Privileged and Confidential Documents. By this Consent Decree, Comcast
neither waives nor alters its right to assert and seek protection from
disclosure of any privileged or otherwise confidential and protected
documents and information, or to seek appropriate safeguards of
confidentiality for any competitively sensitive or proprietary
information.
14. Subsequent Rule or Order. The Parties agree that if any provision of
this Consent Decree is inconsistent with any subsequent rule or order
adopted by the Commission, that provision will be superseded by such
Commission rule or order.
15. Successors and Assigns. Comcast agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
16. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement of the above-described
Investigation. The Parties agree that this Consent Decree does not
constitute either an adjudication on the merits or a factual or legal
finding or determination regarding any compliance or noncompliance by
Comcast with the requirements of the Act or the Commission's rules or
orders. The Parties agree that this Consent Decree is for settlement
purposes only, and that by agreeing to this Consent Decree, Comcast does
not admit or deny any noncompliance, violation, or liability associated
with or arising from its actions or omissions involving the Act or the
Commission's rules that are the subject of this Consent Decree.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both parties.
18. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to affect
the meaning or interpretation of this Consent Decree.
19. Counterparts. This Consent Decree may be signed in counterparts
(including by facsimile), each of which, when executed and delivered,
shall be an original, and all of which counterparts together shall
constitute one and the same fully executed instrument.
20. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
For: Comcast Corporation
__________ ________________________________
Date Lynn R. Charytan
Vice President, Legal Regulatory Affairs
For: Federal Communications Commission
__________ ________________________________
Date P. Michele Ellison
Chief, Enforcement Bureau
47 C.F.R. S: 79.1(c).
Letter from Colleen Heitkamp, Chief, Telecommunications Consumers
Division, Enforcement Bureau, to Comcast Corporation, dated April 20,
2010.
See Letter from Jonathan A. Friedman, Willkie Farr Gallagher LLP, counsel
for Comcast, and David H. Solomon, Wilkinson Barker Knauer, LLP, counsel
for Comcast, dated June 7, 2010.
See Letter from Jonathan A. Friedman, Willkie Farr Gallagher LLP, counsel
for Comcast, and David H. Solomon, Wilkinson Barker Knauer, LLP, counsel
for Comcast, dated July 21, 2010.
Federal Communications Commission DA 11-6
2
2
Federal Communications Commission DA 11-6