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NVT Portland Licensee, LLC

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Released: September 13, 2012

Federal Communications Commission

DA 12-1197

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

NVT PORTLAND LICENSEE, LLC

)
File No.: EB-10-IH-2085
)
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),1 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,2 and Sections 0.111 and 0.311 of the Rules,3 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

.


1 See 47 C.F.R. § 73.1216 (titled “Licensee-Conducted Contests”).
2 See 47 U.S.C. §§ 154(i), 154(j), 503(b).
3 See 47 C.F.R. §§ 0.111, 0.311.

Federal Communications Commission

DA 12-1197

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
2

Federal Communications Commission

DA 12-1197

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

NVT PORTLAND LICENSEE, LLC

)
File No.: EB-10-IH-2085
)
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
rules1 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. § 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.


1 See 47 C.F.R. § 73.1216.

Federal Communications Commission

DA 12-1197

(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. § 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.”2 The Commission
received a complaint, dated February 2, 2010,3 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.4 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.5


2 47 C.F.R. § 73.1216.
3 See Complaint, Form 2000A, Key No. 10-C00193290-1 (Feb. 2, 2010).
4 Id.
5 Id.
2

Federal Communications Commission

DA 12-1197

4.
In response to the Complaint, the Bureau’s Investigations and Hearings Division sent a
Letter of Inquiry to NVT Portland dated June 25, 2012.6 In its Response to the Letter of Inquiry, NVT
Portland did not dispute that it conducted the contest described in the Complaint.7 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.8
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.9 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.10

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.


6 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).
7 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).
8 See id. at 2.
9 See id. at 2.
10 See id. at 2-3.
3

Federal Communications Commission

DA 12-1197

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
4

Federal Communications Commission

DA 12-1197

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 Rules11 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


11 47 C.F.R. § 1.16.
5

Federal Communications Commission

DA 12-1197

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.12 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:13
Ÿ
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.
Ÿ
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.
Ÿ
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


12 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
13 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.
6

Federal Communications Commission

DA 12-1197

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. § 504 and 47 C.F.R. § 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. § 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. § 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.
7

Federal Communications Commission

DA 12-1197

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
8

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