Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
                                )
VIACOM INTERNATIONAL INC.        )    NAL/Acct. No. 200532080002
                                )    File No.  EB-04-IH-0341
                                )    FRN No.  0003475902
                                )
COXCOM, INC.                     )    File No. EB-03-IH-0746
                                )
Operator of a Cable Television   )
System in San Diego, California  )

                              ORDER

Adopted:  October 20, 2004                        Released:  
October 21, 2004

By the Chief, Enforcement Bureau:

     1.   The Enforcement Bureau has been investigating whether 
CoxCom, Inc. (``Cox''), operator of a cable television system in 
San Diego, California, aired commercial matter during children's 
programming, in willful and/or repeated violation of Section 
76.225 of the Commission's rules.1  The children's programming in 
question was provided to Cox, as well as to other cable operators 
and DBS providers nationwide, over the Nickelodeon Channel by 
Viacom International Inc. (``Viacom'').
 
     2.   The Bureau and the above-captioned parties have 
negotiated the terms of a Consent Decree, a copy of which is 
attached hereto and incorporated by reference.  After reviewing 
the terms of the Consent Decree, we find that the public interest 
would be served by approving the Consent Decree and terminating 
the captioned investigation involving Cox. 

     3    Accordingly, IT IS ORDERED, pursuant to Section 4(i) of 
the Communications Act of 1934, as amended,2 that the attached 
Consent Decree IS ADOPTED.

     4.   IT IS FURTHER ORDERED that the above-captioned 
investigation IS TERMINATED.

                         FEDERAL COMMUNICATIONS COMMISSION



                         David H. Solomon
                      Chief, Enforcement Bureau                         CONSENT DECREE

     1.   The Enforcement Bureau of the Federal Communications 
Commission, Viacom International Inc. and CoxCom, Inc. hereby 
enter into this Consent Decree for the purpose of resolving and 
terminating that certain investigation currently being conducted 
by the Enforcement Bureau relating to possible violations of the 
Children's Programming Commercial Limits by CoxCom, Inc. d/b/a 
Cox Communications San Diego, and potential future investigations 
regarding similar possible violations by other Operators which 
also air Nickelodeon.

     2.   For purposes  of  this Consent  Decree,  the  following 
definitions shall apply:

1)a.       ``Act'' means the Communications Act of 1934, as 
     amended, 47 U.S.C. § 151 et seq.
1)b.      ``Adopting Order'' means an order of the Bureau, 
     adopting this Consent Decree, without any modifications 
     adverse to Viacom, Cox or other Operators.
1)c.      ``Air'' means to send electronically any visual images 
     and/or audible sounds to subscribers of a cable or direct 
     broadcast satellite (``DBS'') system.
1)d.      ``Any'' shall be construed to include the word ``all,'' 
     and the word ``all'' shall be construed to include the word 
     ``any.''  Additionally, the word ``or'' shall be construed 
     to include the word ``and,'' and the word ``and'' shall be 
     construed to include the word ``or.''  The word ``each'' 
     shall be construed to include the word ``every,'' and the 
     word ``every'' shall be construed to include the word 
     ``each.''
1)e.       ``Bureau'' means the FCC's Enforcement Bureau.
1)f.      ``Cable Operator'' has the definition contained in 47 
     U.S.C. § 522(5).
1)g.       ``Children's Programming Commercial Limits'' means the 
     requirements contained in 47 U.S.C. § 303a and 47 C.F.R. §§ 
     25.701(e) and 76.225. 
1)h.      ``Commercial Matter'' and ``Children's Programming'' 
     have the respective definitions contained in 47 C.F.R. §§  
     25.701(e) and 76.225. 
1)i.      ``Commission'' or ``FCC'' means the Federal 
     Communications Commission.
1)j.      ``Cox'' means CoxCom, Inc. d/b/a Cox Communications San 
     Diego, a Cable Operator in San Diego, California.
1)k.      ``Effective Date'' means the date on which the Bureau 
     releases the Adopting Order.
1)l.      ``Final Order'' means that, with respect to the 
     Adopting Order: (1) no request for stay or similar request 
     is pending, no stay is in effect, the Adopting Order has not 
     been vacated, reversed, set aside, annulled or suspended, 
     and any deadline for filing such request that may be 
     designated by statute or regulation has passed; (2) no 
     timely petition for rehearing or reconsideration of the 
     Adopting Order, or protest of any kind, is pending before 
     the FCC and the time for filing any such petition or protest 
     is passed; (3) the FCC does not have the Adopting Order 
     under reconsideration or review on its own motion and the 
     time for such reconsideration or review has passed; and (4) 
     the Adopting Order is not then under judicial review, there 
     is no notice of appeal or other application for judicial 
     review pending, and the deadline for filing such notice of 
     appeal or other application for judicial review has passed. 
1)m.      ``Inquiry'' means the Bureau's investigation of alleged 
     violations of the Children's Programming Commercial Limits 
     by Cox that resulted in the Bureau's letters of inquiry to 
     Cox on June 16 and July 27, 2004, and to Viacom on August 
     10, 2004.
1)n.      ``Inquiry Period'' means the period from October 1, 
     2003, through August 10, 2004.
1)o.       ``Nickelodeon'' means The Nickelodeon Channel, a cable 
     and satellite programming channel owned and operated by 
     Nickelodeon, a division of MTV Networks, which is, in turn, 
     a division of Viacom.
1)p.       ``Operator'' means a provider of DBS service, as 
     defined in 47 U.S.C. §§  335(b)(5)(A), or a Cable Operator.
1)q.       ``Parties'' means the Bureau, Viacom, and Cox 
     collectively, and ``Party'' refers to the Bureau, Viacom, 
     and Cox, individually.
1)r.      ``Viacom'' means Viacom International Inc.


I.   BACKGROUND

     3.   During the fourth calendar quarter of 2003, the 
Commission's field offices conducted routine audits of certain 
Cable Operators and television broadcast licensees of the 
compliance by such entities with, respectively, the Children's 
Programming Commercial Limits and the similar broadcast limits 
found in  47 C.F.R. § 73.670.  Those audits identified, among 
other things, potential violations of the Children's Programming 
Commercial Limits by Cox regarding programming on Nickelodeon 
aired on November 1 and 8, 2003.  On June 16, 2004, the Bureau 
sent a letter of inquiry to Cox directing it to provide 
information regarding the potential violations and, on July 27, 
the Bureau sent a supplemental letter of inquiry to Cox.  On 
August 10, the Bureau sent a related letter of inquiry to Viacom.

     4.   During the course of its preparation of its responses 
to these Bureau letters of inquiry, Cox requested Viacom to 
provide certain information.  In response to the Bureau's initial 
letter of inquiry, Cox also provided certifications from 
Nickelodeon and MTV Networks, which Cox represents to have 
maintained in its public files pursuant to the Commission's 
rules.  These certifications stated that the Nickelodeon 
programming at issue in the Bureau's inquiry complied with the 
commercial limits set forth in 47 C.F.R. § 76.225 taking into 
account the one minute of insertion time allowed to distributors 
such as Cox.  Subsequently, and in response to Cox's  request and 
the Bureau's August 10 letter of inquiry, Viacom conducted 
extensive internal and external analysis to identify and quantify 
Commercial Matter that aired during Children's Programming on 
Nickelodeon during the Inquiry Period.  While Viacom made the 
certifications in the good faith belief that it was in compliance 
with the rules, this further analysis determined that, during 
that period, there were 591 instances in which Nickelodeon 
programs inadvertently contained Commercial Matter in excess of 
the minutes-per-hour limitations imposed by the Children's 
Programming Commercial Limits, representing the equivalent of 
1,021 30-second spots (collectively, the ``Overages'').  In 
addition, Viacom reported that, by its estimate, during the 
Inquiry Period, there were approximately 145 instances of 
programs aired in which commercials for products associated with 
the program were inadvertently aired (collectively, the ``Program 
Length Commercials'').  Viacom's analysis revealed that the 
Overages and Program Length Commercials resulted due to flawed 
internal procedures and human error.  In the case of the 
Overages, Viacom received consideration or other benefits from 
the advertising that aired.  Although it did not affect the 
number of apparent Overages, the analysis also found that 
Nickelodeon aired less Commercial Matter than the Commission's 
rules allow in 85 percent of the hours examined in the Inquiry 
Period.  In the case of the Program Length Commercials, the 
analysis revealed that the commercials were not sold with the 
understanding that Nickelodeon would air them in such related 
programs; the commercials aired in related programs due to the 
errors noted above.  According to Viacom, this Nickelodeon 
programming was carried as part of a single national programming 
channel, not only by Cox over its various cable systems, but also 
by virtually all Operators that air the channel.  These Operators 
collectively serve in excess of 85 million households throughout 
the country.  

     5.   The Parties acknowledge that a consent decree to 
address the results of Viacom's analysis is in the public 
interest.  The Parties agree that any forfeiture proceeding that 
might result from a formal Bureau investigation into Cox or any 
other Operator's compliance with the Children's Programming 
Commercial Limits during Children's Programming aired on 
Nickelodeon will be time-consuming and will require substantial 
expenditure of public and private resources.  In order to 
conserve such resources, to resolve the Inquiry, and to promote 
compliance by Cox and other Operators with the Children's 
Programming Commercial Limits, the Parties are entering into this 
Consent Decree, in consideration of the mutual commitments made 
herein.

II.  AGREEMENT

     6.   The Parties agree that the provisions of this Consent 
Decree shall be subject to approval by the Bureau, by 
incorporation of such provisions by reference in an Adopting 
Order.

     7.   The Parties agree that this Consent Decree shall become 
effective on the date on which the Bureau releases the Adopting 
Order and shall remain in effect for two (2) years after the 
Effective Date.  Upon release, the Adopting Order and this 
Consent Decree shall have the same force and effect as any other 
orders of the Commission, and any violation of the terms of this 
Consent Decree shall constitute a violation of a Commission 
order, entitling the Commission or the Bureau, pursuant to 
delegated authority, to exercise any rights and remedies 
attendant to the enforcement of a Commission order.

     8.   Viacom and Cox each acknowledges that the Commission 
has jurisdiction to enforce the Children's Programming Commercial 
Limits against Operator carriage of network programming.  Nothing 
herein constitutes a waiver of any legal rights to challenge, 
outside of the context of this proceeding, the underlying 
validity of the Children's Programming Commercial Limits, 
including whether the rules are consistent with the Children's 
Television Act of 1990.

     9.   As part of the Adopting Order, the Bureau shall 
terminate the Inquiry.  From and after the Effective Date, in the 
absence of the discovery of material new information not 
previously disclosed to the Bureau by Viacom, the Bureau shall 
not, either on its own motion or in response to any petition, 
third-party objection, complaint, or other information, initiate 
any inquiries, investigations, forfeiture proceedings, hearings, 
or other actions, formal or informal, against Viacom, Cox or any 
other Operator for alleged violations of the Children's 
Programming Commercial Limits with respect to Commercial Matter 
aired during Children's Programming on Nickelodeon prior to the 
Effective Date.  The Bureau shall not use the underlying facts or 
conduct relating to any of the foregoing for any purpose relating 
to Viacom, Cox or any other Operator that carried Nickelodeon 
prior to the Effective Date, and shall treat all such matters as 
null and void for all purposes.

     10.  Viacom represents that it has adopted, is currently in 
the process of implementing, and agrees to abide by a compliance 
plan (the ``Compliance Plan'') for the purpose of preventing the 
airing of Commercial Matter violative of the Children's 
Programming Commercial Limits.  A summary of that plan is set 
forth in the Attachment hereto.  Viacom agrees, to the extent it 
has not already done so, to implement this Compliance Plan within 
thirty (30) days of the Effective Date and to keep such 
Compliance Plan in effect, where applicable, for two (2) years 
after the Effective Date.  With the exception of Paragraphs 4 and 
5 of the Compliance Plan, which Viacom may not change without the 
Bureau's prior written consent, Viacom reserves the right to 
revise the Compliance Plan from time to time, provided that, 
during the term of this Consent Decree, the Bureau shall be given 
not less than thirty (30) days advance written notice of any 
material revisions to the Compliance Plan.  

     11.  The Parties agree that retaining the audit results in 
cable systems' public inspection files is consistent with the 
Commission's rules.  Accordingly, Cox agrees to timely place and 
retain for a period of at least one year the inspection results 
made available by Viacom pursuant to the Compliance Plan in the 
public inspection files maintained by its cable systems, 
including any cable systems operated by any of its parent, 
affiliated or subsidiary companies, in a manner otherwise in 
accordance with 47 C.F.R. §76.1703.

     12.  Within five (5) business days after the Adopting Order 
becomes a Final Order, without any modifications to this Consent 
Decree adverse to Viacom, Cox or any other Operator that carried 
Nickelodeon prior to the Effective Date, Viacom shall make a 
voluntary contribution to the United States Treasury in the 
amount of One Million Dollars ($1,000,000).  The payment must be 
made by check or similar instrument, payable to the order of the 
Federal Communications Commission.  The payment must include the 
Acct. No. and FRN No. referenced above.  Payment by check or 
money order may be mailed to Forfeiture Collection Section, 
Finance Branch, Federal Communications Commission, P.O. Box 
73482, Chicago, Illinois 60673-7482.  Payment by overnight mail 
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor 
Mailroom, Chicago, Illinois 60661.  Payment by wire transfer may 
be made to ABA Number 071000013, receiving bank Bank One, and 
account number 1165259.  With the exception, pursuant to 
Paragraph 9 hereof, of any action taken as the result of the 
Commission's discovery of material new information not previously 
disclosed to it, the Bureau agrees not to seek any further 
voluntary or involuntary contributions or payments from Viacom, 
Cox, or any other Operator to the United States Treasury for 
alleged violations of the Children's Programming Commercial 
Limits with respect to Commercial Matter aired during Children's 
Programming on Nickelodeon prior to the Effective Date.

     13.  With regard to each Nickelodeon program aired during 
the Inquiry Period that contained an Overage, Viacom shall reduce 
the amount of Commercial Matter aired during the same or a 
similar Nickelodeon program during the same or a comparable time 
period in an amount equal to the amount of time of such excess 
Commercial Matter, up to the equivalent of 1,021 30-second spots, 
the estimated total of the Overages.  All such airings will occur 
within ten (10) months of the Effective Date.  In the event of 
any reduction or elimination by Viacom of Commercial Matter from 
its programming pursuant to this Paragraph 13, Viacom shall 
direct each Operator to not insert Commercial Matter in the 
program in excess of that allowed pursuant to the agreement 
between such Operator and Viacom and the Children's Programming 
Commercial Limits, had such reduction or elimination not been 
made. 

     14.  Viacom and Cox each waives any and all rights it may 
have, individually or together, 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 no modifications are made to the Consent 
Decree adverse to Viacom, Cox or any other Operator that carried 
Nickelodeon prior to the Effective Date.  If the Bureau, the 
Commission or the United States acting on its behalf, brings a 
judicial action to enforce the terms of the Adopting Order or 
this Consent Decree, or both, Viacom and Cox will not contest the 
validity of this Consent Decree or of the Adopting Order.  If 
Viacom or Cox brings a judicial action to enforce the terms of 
the Adopting Order or this Consent Decree, or both, neither the 
Commission nor the United States will contest the validity of 
this Consent Decree or of the Adopting Order.  Viacom and Cox 
retain the right to challenge the Bureau or the Commission's 
interpretation of this Consent Decree or interpretation of any 
terms contained therein.  Any collection action by the Commission 
or any other governmental entity to obtain the payment of the 
voluntary contribution to the United States Treasury provided for 
in Paragraph 12 of this Consent Decree shall be maintained solely 
against Viacom.  Nothing herein shall restrict Viacom or Cox from 
challenging on any basis, any future enforcement action relating 
to the Children's Programming Commercial Limits, other than 
actions to enforce the Adopting Order or this Consent Decree.

     15.  The Parties agree that this Consent Decree and Viacom's 
voluntary contribution are for settlement purposes only and do 
not constitute, including for the purpose of completing any 
existing Commission form or otherwise, an admission, denial, 
adverse finding, adverse final action, adverse adjudication on 
the merits, or waiver of legal rights except as otherwise 
expressly set forth herein, including without limitation the 
rights reserved in Paragraph 8 hereof, or a factual or legal 
determination regarding any compliance or noncompliance by 
Viacom, Cox, or any other Operator that carried Nickelodeon prior 
to the Effective Date, with the Children's Programming Commercial 
Limits.

     16.  In the event that this Consent Decree is rendered 
invalid in any court of competent jurisdiction, it shall become 
null and void and may not be used in any manner in any legal 
proceeding.

     17.  Viacom and Cox each hereby agrees to waive any claims 
they may otherwise 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.

     18.  Each Party represents and warrants to the other that it 
has full power and authority to enter into this Consent Decree.

     19.  This Consent Decree may be executed in counterparts.


          FEDERAL  COMMUNICATIONS COMMISSION
          ENFORCEMENT BUREAU


          By:   _____________________________________
               David H. Solomon, Chief
               Date:  ______________________________


          VIACOM INTERNATIONAL INC.


          By:  ______________________________________
               Mark Morril, Vice President, Deputy General 
               Counsel and Assistant Secretary
               Date:                              


          COXCOM, INC.


          By:  ______________________________________
               James A. Hatcher, Director
               Date:                                                         ATTACHMENT

                 COMPLIANCE PLAN OF NICKELODEON

     Nickelodeon has adopted, and is implementing, a Compliance 
Plan for the purpose of preventing the airing of Commercial 
Matter that is violative of the Children's Programming Commercial 
Limits.  This Compliance Plan consists of the following five 
components:

1.   Nickelodeon will conduct formal training on the Children's 
     Programming Commercial Limits for all Nickelodeon employees 
     in the traffic department who materially participate in 
     scheduling commercials during Children's Programming.  Such 
     training will be provided to all such employees no later 
     than thirty (30) days after the Effective Date of this 
     Consent Decree, and on an annual basis thereafter while this 
     Compliance Plan remains in effect. Training also will be 
     provided to all such new employees promptly after they 
     commence their duties.  Such training shall include 
     instruction relating to not only the fixed time limits on 
     Commercial Matter during Children's Programming, but also to 
     program-length commercial issues arising from tie-ins 
     between program content ands characters, and host-selling.

2.   Nickelodeon will assign responsibilities for ensuring 
     compliance with the Children's Programming Commercial Limits 
     to additional personnel.  Before Children's Programming airs 
     on Nickelodeon, standards and practices personnel will 
     review the content of each commercial within each instance 
     of Children's Programming to ensure compliance with the 
     Children's Programming Commercial Limits.  In addition, 
     Nickelodeon's traffic department will be responsible for 
     regularly reviewing the daily Children's Programming 
     schedule, including a listing of all commercials scheduled 
     during such programming.  Finally, Nickelodeon personnel 
     responsible for scheduling commercials during Children's 
     Programming aired on Nickelodeon will be required to approve 
     a task list each day confirming that they have performed 
     quality control checks intended to ensure compliance with 
     the Children's Programming Commercial Limits.

3.   Nickelodeon has made modifications to the computer system it 
     uses to schedule Commercial Matter designed to minimize the 
     potential for human error in the commercial scheduling 
     process and to ensure compliance with the Children's 
     Programming Commercial Limits.  In the future, as it deems 
     appropriate, Nickelodeon will seek to make further 
     improvements to the computer system, including upgrades to 
     the existing system or the possible migration to a new 
     computer system.

4.   For two (2) years after the Effective Date, Nickelodeon will 
     conduct random inspections, at least once every six (6) 
     months, of Commercial Matter aired during Children's 
     Programming.  Each inspection will consist of reviewing, in 
     the official program logs of Nickelodeon, all Commercial 
     Matter aired during Children's Programming on Nickelodeon 
     during a randomly selected three-week period during the 
     preceding six (6) months.  Within thirty (30) days of the 
     completion of each such inspection, Nickelodeon will report 
     in writing to the Bureau the results of the inspection, 
     including any violations of the Children's Programming 
     Commercial Limits discovered during the period reviewed and 
     the remedial steps taken to ensure future compliance with 
     the Children's Programming Commercial Limits.  Nickelodeon 
     will make the results of such inspections available to 
     Operators that air Nickelodeon on the same Internet web site 
     on which it periodically provides such Operators with 
     certifications regarding the compliance of Nickelodeon 
     programming with the Children's Programming Commercial 
     Limits .  Nickelodeon has placed a notice on that web site 
     advising all such Operators that it will be conducting such 
     inspections and that it will make the results of each such 
     inspections available to them on that web site for their 
     review and placement in their respective system public 
     inspection files.  Nickelodeon will also deliver a hard copy 
     of such audit results via facsimile or mail to Cox at the 
     following address: CoxCom, Inc., 1400 Lake Hearn Drive, 
     N.E., Atlanta, Georgia 30319, Attn: James A. Hatcher, 
     Esquire, Telecopier: (404) 843-5845.

5.   For the two-year period that this Compliance Plan remains in 
     effect, in the event that Nickelodeon's inspection required 
     under Paragraph 4 reveals that the amount of Commercial 
     Matter aired during a Nickelodeon program exceeded the 
     Children's Programming Commercial Limits, for each such 
     instance, Nickelodeon will reduce the amount of Commercial 
     Matter to be aired during a single subsequent airing of the 
     same or similar Nickelodeon program during the same or a 
     comparable time period in an amount equal to the amount of 
     time of such excess Commercial Matter.  Such subsequent 
     airing will occur within sixty (60) days of submission of 
     the inspection results to the Bureau reporting the discovery 
     of such excess Commercial Matter.  For the two-year period 
     that this Compliance Plan remains in effect, in the event 
     Nickelodeon's inspection reveals the airing of a Nickelodeon 
     program associated with a product in which a commercial for 
     that product was aired during such program, for each such 
     instance, Nickelodeon will air subsequently the same or 
     similar Nickelodeon program during the same or a comparable 
     time period without any Commercial Matter.  Such subsequent 
     airing will occur within sixty (60) days of the submission 
     of the inspection results to the Bureau reporting the 
     discovery of the airing of the Nickelodeon program 
     associated with a product in which a commercial for that 
     product was aired.  In the event of the reduction or 
     elimination of Commercial Matter from its programming 
     pursuant to this Paragraph 5, Nickelodeon will not authorize 
     any Operator to insert Commercial Matter in the program in 
     excess of that allowed pursuant to the agreement between 
     such Operator and Nickelodeon and the Children's Programming 
     Commercial Limits, had such reduction or elimination not 
     been made. 


_________________________

1 47 C.F.R. § 76.225
2 47 U.S.C. § 154(i).