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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-10-IH-2085
)
NVT PORTLAND LICENSEE, LLC Acct. No.: 201232080026
)
Licensee of Station KOIN(DT), FRN: 0016754103
)
Portland, Oregon Facility ID No.: 35380
)
)
ORDER
Adopted: September 12, 2012 Released: September 13, 2012
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (Bureau) and NVT Portland Licensee, LLC
(Licensee). The Consent Decree resolves and terminates the Bureau's
investigation into the Licensee's possible violations of Section
73.1216 of the Commission's rules (Rules), in connection with a
licensee-conducted contest promoted by the Licensee on Station
KOIN(DT), Portland, Oregon (Station) in 2010.
2. The Bureau and the Licensee have negotiated the terms of the Consent
Decree that resolve this matter, including a detailed, three-year
compliance plan requirement. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether the Licensee possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 4(j), and
503(b) of the Communications Act of 1934, as amended, and Sections
0.111 and 0.311 of the Rules, the Consent Decree attached to this
Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation, as to
the Station and/or the Licensee, IS TERMINATED.
7. IT IS FURTHER ORDERED that any third-party complaints and allegations
against the Station and/or the Licensee before the Enforcement Bureau
related to the above-captioned investigation as of the date of this
Consent Decree ARE DISMISSED.
8. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by both First Class mail and Certified Mail, Return
Receipt Requested, to Licensee's counsel, Gregory L. Masters, Esq.,
Wiley Rein LLP, 1776 K Street, N.W., Washington, D.C. 20006.
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-IH-2085
)
NVT PORTLAND LICENSEE, LLC Acct. No.: 201232080026
)
Licensee of Station KOIN(DT), FRN: 0016754103
)
Portland, Oregon Facility ID No.: 35380
)
)
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission and
NVT Portland Licensee, LLC, by their authorized representatives,
hereby enter into this Consent Decree for the purpose of terminating
the Bureau's investigation into possible violations of Section
73.1216 of the Commission's rules pertaining to Licensee-Conducted
contests.
I. DEFINITIONS
2. For the 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 the Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Communications Laws" means, collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which NVT Portland is subject by virtue of it being a Commission
licensee, including but not limited to Section 73.1216 of the
Commission's rules.
f. "Complainant" means the individual transmitting and filing the
third-party complaint alleging violation of the Commission's
Licensee-Conducted Contest Rule, Section 73.1216, received by, or in
the possession of, the Bureau.
g. "Complaint" means the third-party complaint alleging violation of the
Commission's Licensee-Conducted Contest Rule, Section 73.1216,
received by, or in the possession of, the Bureau.
h. "Compliance Plan" means the compliance obligations, program, and
procedures described in this Consent Decree at paragraph 10.
i. "Covered Employees" means all employees and agents of NVT Portland who
perform, or supervise, oversee, or manage the performance of, duties
that relate to NVT Portland's responsibilities under the
Licensee-Conducted Contest Rule.
j. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
k. "Investigation" means the investigation commenced by the Bureau's June
25, 2012 Letter of Inquiry regarding whether the Licensee violated the
Commission's Licensee-Conducted Contest Rule.
l. "Licensee-Conducted Contest Rule" means Section 73.1216 of the Rules,
47 C.F.R. S: 73.1216, governing how Commission licensees conduct
contests that are broadcast or advertised.
m. "NVT Portland" means NVT Portland Licensee, LLC and its
predecessors-in- interest and successors-in-interest.
n. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by NVT Portland to
implement the Compliance Plan.
o. "Parties" means NVT Portland and the Bureau, each of which is a
"Party."
p. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
q. "Station" means TV Station KOIN(DT), Portland, Oregon (Facility ID No.
35380).
II. BACKGROUND
3. Pursuant to Section 73.1216 of the Rules, a broadcast licensee "that
broadcasts or advertises information about a contest it conducts shall
fully and accurately disclose the material terms of the contest, and
shall conduct the contest substantially as announced or advertised."
The Commission received a complaint, dated February 2, 2010, alleging
that the Station conducted a contest that violated Section 73.1216 of
the Commission's rules. Specifically, the Complainant alleges that the
Station failed to deliver a prize to the declared winner of a "man
cave makeover" contest that the Station conducted and promoted. The
Complainant further alleges that even though he was declared the
winner of the contest and had not violated any Station guidelines
relating to contest voting, the Station nonetheless voided the contest
after it conducted an investigation into the validity of contest
voting.
4. In response to the Complaint, the Bureau's Investigations and Hearings
Division sent a Letter of Inquiry to NVT Portland dated June 25, 2012.
In its Response to the Letter of Inquiry, NVT Portland did not dispute
that it conducted the contest described in the Complaint. NVT
Portland also acknowledged that the Station did not broadcast the
material terms of the contest rules (as required by the Commission's
rules), but directed viewers to the Station's website where it had
posted the official rules. In justifying its decision to void the
contest, the Licensee explained that one of the contest finalists (not
the Complainant) had contacted the Station to admit that he had used a
vote-generating computer program to artificially inflate the number of
votes cast for his entry. The Station launched an investigation to
determine the extent to which electronic tampering may have skewed the
results of the contest voting. After its investigation, the Station
decided to cancel the contest and not award any prizes.
III. 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.
6. Jurisdiction. NVT Portland agrees that the Bureau has jurisdiction
over it and the matters contained in this Consent Decree and that the
Bureau 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 as defined herein. As of
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 in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate the
Investigation. In consideration for the termination of the
Investigation, NVT Portland agrees to the terms, conditions, and
procedures contained herein. The Bureau further agrees that in the
absence of new material evidence, the Bureau will not use the facts
developed in this Investigation through the Effective Date, or the
existence of this Consent Decree, to institute on its own motion any
new proceeding, formal or informal, or take any action on its own
motion against NVT Portland concerning the matters that were the
subject of the Investigation. The Bureau also agrees that in the
absence of new material evidence 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 any proceeding,
formal or informal, or take any action on its own motion against NVT
Portland with respect to NVT Portland's basic qualifications,
including its character qualifications, to be a Commission licensee or
to hold Commission licenses or authorizations.
9. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, NVT Portland shall designate a senior corporate
manager with the requisite corporate and organizational authority to
serve as Compliance Officer and to discharge the duties set forth
below. The person designated as the Compliance Officer shall be
responsible for developing, implementing, and administering the
Compliance Plan and ensuring that NVT Portland complies with the terms
and conditions of the Compliance Plan and this Consent Decree. In
addition to the general knowledge of the Communications Laws necessary
to discharge his/her duties under this Consent Decree, the Compliance
Officer shall have specific knowledge of the Licensee-Conducted
Contest Rule prior to assuming his/her duties.
10. Compliance Plan. For purposes of settling the matters set forth
herein, NVT Portland agrees that it shall, within sixty (60) calendar
days of the Effective Date, develop and implement a Compliance Plan
designed to ensure future compliance with the Communications Laws and
with the terms and conditions of this Consent Decree. With respect to
the Licensee-Conducted Contest Rule, NVT Portland shall implement the
following procedures:
(a) Operating Procedures for Licensee-Conducted Contests. Within sixty
(60) calendar days after the Effective Date, NVT Portland shall establish
Operating Procedures that all Covered Employees must follow to help ensure
NVT Portland's compliance with the Licensee-Conducted Contest Rule. NVT
Portland's Operating Procedures shall include internal procedures and
policies specifically designed to ensure that NVT Portland fully and
accurately discloses the material terms of its contests, and conducts the
contests substantially as announced or advertised, consistent with Section
73.1216 of the Commission's rules. NVT Portland also shall develop a
Compliance Checklist that describes the steps that a Covered Employee must
follow to ensure that Licensee-Conducted contests will not result in a
violation of the Communications Laws regarding Licensee-Conducted
contests. At a minimum, the Compliance Checklist shall require at all
times that at least two station employees, one of which shall be a
management-level employee, be involved in all aspects of the selection of
winners and the award of prizes to participants in Licensee-Conducted
contests.
(b) Compliance Manual. Within sixty (60) calendar days after the Effective
Date, the Compliance Officer shall develop and distribute a Compliance
Manual to all Covered Employees. The Compliance Manual shall explain the
Licensee-Conducted Contest Rule and set forth the Operating Procedures
that Covered Employees shall follow to help ensure NVT Portland's
compliance with the Communications Laws. NVT Portland shall periodically
review and revise the Compliance Manual as necessary to ensure that the
information set forth therein remains current and complete. NVT Portland
shall distribute any revisions to the Compliance Manual promptly to all
Covered Employees.
(c) Compliance Training Program. NVT Portland shall establish and
implement a Compliance Training Program on compliance with the
Licensee-Conducted Contest Rule and the Operating Procedures. As part of
the Compliance Training Program, Covered Employees shall be advised of NVT
Portland's obligation to report any noncompliance with the
Licensee-Conducted Contest Rule under paragraph 11 of this Consent Decree
and shall be instructed on how to disclose noncompliance to the Compliance
Officer. All Covered Employees shall be trained pursuant to the Compliance
Training Program within ninety (90) calendar days after the Effective
Date, except that any person who becomes a Covered Employee at any time
after the Effective Date shall be trained within thirty (30) calendar days
after the date such person becomes a Covered Employee. NVT Portland shall
repeat the compliance training on an annual basis, and shall periodically
review and revise the Compliance Training Program as necessary to ensure
that it remains current and complete and to enhance its effectiveness.
11. Reporting Noncompliance. NVT Portland shall report any noncompliance
with the Licensee-Conducted Contest Rule, and with the terms and
conditions of this Consent Decree within thirty (30) calendar days
after discovery of such noncompliance. Such reports shall include a
detailed explanation of (i) each instance of noncompliance; (ii) the
steps that NVT Portland has taken or will take to remedy such
noncompliance; (iii) the schedule on which such remedial actions will
be taken; and (iv) the steps that NVT Portland has taken or will take
to prevent the recurrence of any such noncompliance. All reports of
noncompliance shall be submitted to the Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, Room 4-C330, 445 12th Street, S.W., Washington, D.C.
20554, with a copy submitted electronically to Theresa Z. Cavanaugh at
Terry.Cavanaugh@fcc.gov, Jeffrey J. Gee at Jeffrey.Gee@fcc.gov,
Kenneth M. Scheibel, Jr. at Kenneth.Scheibel@fcc.gov, and to Brian J.
Carter at Brian.Carter@fcc.gov.
12. Compliance Reports. NVT Portland shall file Compliance Reports with
the Commission ninety (90) days after the Effective Date, twelve (12)
months after the Effective Date, twenty-four (24) months after the
Effective Date, and thirty-six (36) months after the Effective Date.
(a) Each Compliance Report shall include a detailed description of NVT
Portland's efforts during the relevant period to comply with the terms and
conditions of this Consent Decree and the Licensee-Conducted Contest Rule.
In addition, each Compliance Report shall include a certification by the
Compliance Officer, as an agent of and on behalf of NVT Portland, stating
that the Compliance Officer has personal knowledge that NVT Portland (i)
has established and implemented the Compliance Plan; (ii) has utilized the
Operating Procedures since the implementation of the Compliance Plan; and
(iii) is not aware of any instances of noncompliance with the terms and
conditions of this Consent Decree, including the reporting obligations set
forth in paragraph 11 hereof.
(b) The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such certification and 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.
(c) If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of NVT Portland,
shall provide the Commission with a detailed explanation of the reason(s)
why and describe fully: (i) each instance of noncompliance; (ii) the steps
that NVT Portland has taken or will take to remedy such noncompliance,
including the schedule on which proposed remedial action will be taken;
and (iii) the steps that NVT Portland has taken or will take to prevent
the recurrence of any such noncompliance, including the schedule on which
such preventive action will be taken.
(d) All Compliance Reports shall be submitted to the Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission, Room 4-C330, 445 12th Street, S.W., Washington, D.C. 20554,
with a copy submitted electronically to Theresa Z. Cavanaugh at
Terry.Cavanaugh@fcc.gov, Jeffrey J. Gee at Jeffrey.Gee@fcc.gov, Kenneth M.
Scheibel, Jr. at Kenneth.Scheibel@fcc.gov, and to Brian J. Carter at
Brian.Carter@fcc.gov.
13. Termination Date. Unless stated otherwise, the requirements set forth
in paragraphs 9 through 12 of this Consent Decree shall expire
thirty-six (36) months after the Effective Date.
14. Section 73.1216 Complaints; Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating complaints filed pursuant to Section 73.1216 of the
Commission's rules against NVT Portland or its affiliates for alleged
violations of the Act or the Commission's rules or for any other type
of alleged misconduct, regardless of when such misconduct took place.
The Commission's adjudication of any such complaints will be based
solely on the record developed in that proceeding. Except as expressly
provided in this Consent Decree, this Consent Decree shall not prevent
the Commission from investigating new evidence of noncompliance by NVT
Portland with the Communications Laws.
15. Voluntary Contribution. NVT Portland agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
four thousand dollars ($4,000) within thirty (30) calendar days after
the Effective Date. NVT Portland shall also send electronic
notification of payment to Theresa Z. Cavanaugh at
Terry.Cavanaugh@fcc.gov, Jeffrey J. Gee at Jeffrey.Gee@fcc.gov,
Kenneth M. Scheibel, Jr. at Kenneth.Scheibel@fcc.gov, and to Brian J.
Carter at Brian.Carter@fcc.gov on the date said payment is made.
The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account number and
FRN referenced above. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
16. Waivers. NVT Portland 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, provided the Bureau issues an Adopting Order
as defined herein. NVT Portland shall retain the right to challenge
Commission interpretation of the Consent Decree or any terms contained
herein. If either Party (or the United States on behalf of the
Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither NVT Portland nor the Commission shall contest
the validity of the Consent Decree or the Adopting Order, and NVT
Portland shall waive any statutory right to a trial de novo. NVT
Portland hereby agrees to waive any claims it may have under the Equal
Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501 et
seq., relating to the matters addressed in this Consent Decree.
17. Liability. NVT Portland admits, solely for the purpose of this Consent
Decree and for Commission civil enforcement purposes, and in express
reliance on the provisions of paragraph 8 hereof, that the broadcast
material at issue in this Consent Decree is in violation of 47 C.F.R.
S: 73.1216, assuming construction of these terms as they are construed
by the Bureau as of the date hereof. Notwithstanding any other
provision of this Consent Decree, it is expressly agreed and
understood that if this Consent Decree, or paragraph 8 hereof, or
both, are breached by the Bureau, or are invalidated or modified to
NVT Portland's prejudice by the Commission, Bureau, or any court, then
and in that event the provisions of the immediately-preceding sentence
shall be of no force or effect whatever, and NVT Portland shall not,
by virtue of that sentence or any other provision of this Consent
Decree, be deemed to have made any admission concerning violations of
47 C.F.R. S: 73.1216.
18. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
proceeding.
19. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or order adopted
by the Commission (except an order specifically intended to revise the
terms of this Consent Decree to which NVT Portland does not expressly
consent) that provision will be superseded by such rule or Commission
order.
20. Successors and Assigns. NVT Portland agrees that the provisions of
this Consent Decree shall be binding on its successors, assigns, and
transferees.
21. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Investigation.
22. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
23. 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.
24. Authorized Representative. The individual signing this Consent Decree
on behalf of NVT Portland represents and warrants that he is
authorized by NVT Portland to execute this Consent Decree and to bind
NVT Portland to the obligations set forth herein. The FCC signatory
represents that she is signing this Consent Decree in her official
capacity and that she is authorized to execute this Consent Decree.
25. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
NVT PORTLAND LICENSEE, LLC
By: NVT License Company, LLC, sole member of NVT Portland
Licensee, LLC
By: NVT License Holdings, LLC, sole member of NVT License
Company, LLC
By:
________________________________
C. Thomas McMillen
Sole Class A Member
________________________________
Date
See 47 C.F.R. S: 73.1216 (titled "Licensee-Conducted Contests").
See 47 U.S.C. S:S: 154(i), 154(j), 503(b).
See 47 C.F.R. S:S: 0.111, 0.311.
See 47 C.F.R. S: 73.1216.
47 C.F.R. S: 73.1216.
See Complaint, Form 2000A, Key No. 10-C00193290-1 (Feb. 2, 2010).
Id.
Id.
See Letter from Kenneth M. Scheibel, Jr., Assistant Chief,
Investigations and Hearings Division, FCC Enforcement Bureau, to
Gregory L. Masters, Esq., counsel to NVT Portland Licensee, LLC (June
25, 2012) (on file in EB-12-IH-1197) (LOI).
See Letter from Gregory L. Masters, Esq., Wiley Rein LLP, counsel to
NVT Portland Licensee, LLC, to Kenneth M. Scheibel, Jr., Assistant
Chief, Investigations and Hearings Division, FCC Enforcement Bureau,
(July 6, 2012) (on file in EB-12-IH-1197) (LOI Response).
See id. at 2.
See id. at 2.
See id. at 2-3.
47 C.F.R. S: 1.16.
An FCC Form 159 and detailed instructions for completing the form may
be obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
Should NVT Portland have questions regarding payment procedures, it
should contact the Financial Operations Group Help Desk by phone at
1-877-480-3201, or by e-mail at ARINQUIRIES@fcc.gov.
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