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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) The Detroit News, Inc. ) Licensee, Station WUSA(TV) ) Washington, DC ) ) MEMORANDUM OPINION AND ORDER Adopted: September 22, 1997 Released: September 29, 1997 By the Commission: 1. The Commission has before it an Application for Review filed May 6, 1996, by the Ukrainian American Community Network ("UACN") and related pleadings. UACN seeks review of the April 12, 1996, decision by the Mass Media Bureau ("Bureau") denying its petition for reconsideration of the Bureau's action on UACN's complaint against WUSA(TV), Washington, D.C. For the reasons stated herein, the Application for Review is denied. I. Background 2. On October 23, 1994, Station WUSA, licensed to The Detroit News, Inc. ("Detroit News"), broadcast a 60 Minutes segment entitled "The Ugly Face of Freedom," which allegedly resulted in the mailing of numerous letters of protest to Station WUSA and CBS. By letter dated February 20, 1995, Larissa M. Fontana, PhD, a coordinator of UACN, filed a complaint against Station WUSA, alleging that the station's public file contained neither a copy of her letter of protest to WUSA, nor copies of any letter regarding the 60 Minutes broadcast. Ms. Fontana further stated that she was informed by station personnel that her letter had been forwarded to CBS' office in New York. 3. In response to the complaint, the Bureau issued a letter of inquiry which generated a series of pleadings from Detroit News and UACN. Detroit News stated that its policy was to forward copies of all letters regarding CBS to CBS' office in New York and to retain a copy of the letter, or a list of all such letters, in the station's file. However, it conceded that it may not have followed its stated policy in this case. In addition, Detroit News asserted that it was advised by CBS that CBS had responded to all viewer letters regarding the broadcast and Detroit News so advised Ms. Fontana. UACN questioned whether or not it was actually WUSA's practice to retain copies of letters it sent to CBS, or lists thereof. It alleged that WUSA's public file did not contain copies of the letters at issue or any lists of such letters. Moreover, UACN stated that it could find no evidence that CBS had in fact responded to viewer letters and, accordingly, alleged that Detroit News' response evidenced misrepresentation and lack of candor. UACN argued that Detroit News and CBS had "colluded" in an effort to demonstrate to the FCC that they were responsible broadcasters and had responded to viewer concerns. Finally, UACN suggested that the letters to WUSA were not retained or sent to CBS. 4. As a result of the complaint and subsequent pleadings filed by UACN, the Bureau issued a Notice of Apparent Liability on December 5, 1995, against Detroit News, for violating Sections 73.3526 and 73.1202 of the Commission's Rules. These rules require a broadcast licensee to maintain a public inspection file and to retain all written comments and suggestions from the public in such file. Specifically, the Bureau found that Detroit News' failure to place letters regarding the October 23, 1994, 60 Minutes broadcast in Station WUSA's public file constituted violations of the Commission's Rules. The Bureau rejected Detroit News' arguments that it had complied with the "spirit" of the Commission's Rules by forwarding viewer letters to CBS. The Bureau assessed a $2,000 forfeiture and instructed Detroit News to take "whatever steps necessary" to complete the station's public file. 5. Detroit News paid the forfeiture, but sought clarification of the NAL as to its obligation to locate the missing 60 Minutes letters. Specifically, it stated that the letters had been sent to long-term storage and were not readily accessible because many such letters were received and stored with thousands of other letters regarding this broadcast. UACN objected to Detroit News' request for clarification, classifying it as a request for waiver of Sections 73.1202 and 73.3526 of the Commission's Rules. Moreover, it argued that given the number of letters missing from the public file, and the fact that the letters had still not been placed in the file, Detroit News should have been assessed the maximum forfeiture for each missing letter, a total of at least $3,750,000. Finally, UACN argued that the Bureau failed to address the lack of candor and misrepresentation issues it raised and that Detroit News' statements to the Commission continued to lack candor. Specifically, UACN argued that despite Detroit News' repeated representations to the contrary, Detroit News never forwarded the letters at issue to CBS in New York. Alternatively, UACN argued that any letters of complaint received, despite CBS's and Detroit News' representations to the contrary, were discarded. 6. The MO&O denied UACN's requests. It acknowledged that the NAL did not specifically address the misrepresentation and lack of candor allegations, but noted that such allegations were fully considered at the time the NAL was issued. Moreover, in the MO&O, the Bureau specifically addressed the misrepresentation issue, concluding that UACN's allegations regarding misrepresentation were based on inference and speculation rather than fact and thus no material question of fact existed which warranted designation for hearing. Further, the MO&O stated that UACN had not presented the Bureau with any new information which would warrant an increase in the forfeiture amount. Finally, the Bureau recognized that it might be impossible to locate every letter, but ordered Detroit News to use its "best efforts" to complete the public inspection file and to file a report within sixty days of the release of the MO&O, updating the Bureau as to the status of its efforts to do so. II. Contentions of the Parties 7. In its Application for Review, UACN presents two questions for review. First, did the Mass Media Bureau err by failing to designate the issues raised in UACN's pleadings for hearing and by failing to impose a larger forfeiture upon Detroit News? Second, did the Mass Media Bureau err by changing the requirement of Section 73.3526(a) and by permitting Detroit News to use its "best efforts" to place the missing viewer letters in the WUSA(TV) public file? 8. UACN first argues that the Bureau erred by failing to designate Detroit News for hearing and by failing to impose a larger forfeiture against Detroit News. In support of its position, UACN asserts that Detroit News and CBS colluded to make material misrepresentations to the Commission concerning the disposition of the 60 Minutes viewer letters. It contends that despite Detroit News' assertions to the contrary, the letters were discarded. It states that there is sufficient evidence of misrepresentation to support designation for hearing. UACN also asserts that Detroit News has steadfastly refused to comply with the Commission rule which requires stations to keep viewer letters in their public inspection files and that Detroit News' explanations as to why these letters were not and cannot be placed in WUSA(TV)'s public file have lacked candor. Therefore, UACN asserts that Detroit News' lack of candor, coupled with the ongoing nature of the violations, requires a higher forfeiture. In support of its position, UACN cites to Section 503(b)(2) of the Communications Act of 1934, as amended, which states that forfeitures should be calculated by considering the "nature, circumstance, extent and gravity of violations...." 9. Detroit News maintains that it has evidenced every intent to comply with the Commission's rules to the fullest extent practicable and that its actions with respect to rectifying inadvertent errors in the maintenance of its public inspection file could not rationally be construed as a "steadfast refusal" to comply with the Commission's rules. Further, Detroit News states that it has been nothing but candid and cooperative with the Commission as to the maintenance of its public inspection file. In addition, contrary to UACN's allegations, Detroit News maintains that there was no "malevolent intent" to its inability to retrieve from CBS copies of protest letters allegedly sent to the station. Moreover, it states that although it incorrectly informed the Commission that CBS had responded to the viewer letters, at the time it made that statement, Detroit News believed, based upon information received from CBS, that such responses had been sent. Further, it indicates that upon becoming aware of the inaccuracy, it informed the Commission. Finally, Detroit News states that it has paid the forfeiture and taken appropriate corrective measures to improve public inspection file procedures, in that it has both instructed and admonished personnel to ensure future compliance with the Commission's rules. 10. UACN next argues that the Bureau changed the standard for the public inspection file rule when it required Detroit News to use its "best efforts" to obtain copies of the 60 Minutes letters and place them in Station WUSA's public file. UACN states that the Bureau erred in changing the standard of the rule from one of mandating that certain documents "shall" be maintained to one which merely requires a licensee's best efforts. Detroit News asserts that the instructions in the MO&O regarding use of Detroit News' best efforts to complete WUSA's public file is consistent with Section 73.3526(a) of the Commission's Rules. III. Discussion 11. Misrepresentation involves false statements of material fact made with an intent to deceive. Lack of candor involves concealment, evasion, and other failures to be fully forthcoming concerning material facts undertaken with an intent to deceive the Commission. The Commission demands candor from those who come before it and will not tolerate misrepresentations. Detroit News has consistently stated that its policy was to forward letters regarding CBS programming directly to CBS. After being instructed by the Bureau to retrieve the letters at issue, it was able to locate only letters sent directly from viewers to CBS. UACN asserts that Detroit News' statements to the Bureau, regarding its representation that it routinely forwards letters relating to CBS in New York and normally retains copies of such letters in its station's public file, and its subsequent inability to find the letters, evidence misrepresentation or a lack of candor. We do not believe, however, that the information before us provides sufficient evidence to support such a finding and, consequently, the requested hearing is not warranted. There is no evidence before us that Detroit News intentionally made false statements to the Commission or that it engaged in concealment or evasion with an intent to deceive the Commission concerning UACN's letters. It appears that at the time Detroit News made statements regarding the location of viewer letters, it believed the letters were located at CBS' office in New York. While Detroit News has been unable to locate its letters at CBS, we do not believe this fact establishes the intent necessary to support a finding of lack of candor or misrepresentation. Moreover, we conclude likewise that Detroit News' erroneous statement to the Bureau regarding CBS' response to viewer letters does not evidence an intent to deceive. Rather, the record reveals that Detroit News simply relied on an incorrect statement by CBS personnel and that it believed, at the time it so informed the Commission, that CBS had responded to all viewer letters regarding the 60 Minutes broadcast. We agree with the Bureau that allegations of collusion or conspiracy between Detroit News and CBS are merely speculative and are not supported by the record before us. 12. Next, the contention that the Bureau changed the standard for maintaining public inspection files is without merit. The Bureau did not alter the requirements of Section 73.3526(a) for the benefit of Detroit News. The Bureau found that Detroit News violated the public inspection file rule and fined Detroit News for noncompliance. It then instructed the licensee to use its "best efforts' to complete the public file, but recognized that Detroit News might not be able to do so. We are persuaded that Detroit News' actions, detailed in its May 21, 1996, letter to obtain the missing letters and place them in WUSA's public file, represented a substantial and good faith attempt to complete the station's public file, as directed by the staff, and that no more can reasonably be asked of it in this regard. No party can be punished for not doing what its best efforts cannot accomplish. As noted above, Detroit News' initial failure to place the letters in its public file has already been determined to violate the Commission's rules and a forfeiture has been imposed and paid for that violation. 13. In view of the foregoing, we find that there is no basis for further forfeiture in connection with Detroit News' public file failures. We have rejected UACN's allegations of misrepresentation and lack of candor. Moreover, we do not find this to be a continuing violation. In the absence of such exacerbating factors, we find that the forfeiture amount imposed is sufficient. IV. Conclusion and Ordering Clause 14. Therefore, after carefully reviewing the facts of this case, we find no merit to UACN's Application for Review. Accordingly, IT IS ORDERED that the Application for Review filed on May 6, 1996, by the Ukrainian American Community Network IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary