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                 )
                                )
Fox Television Stations, Inc.    )
Licensee of  WTTG (TV)           )    File No. EB-04-TC-104
Washington, D.C.                 )    Facility ID  No. 22207
                                )    NAL/Acct. No. 200532170011 
                                )    FRN: 0012916607
Apparent Liability for           )
Forfeiture                       )


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted:  May 25, 2005                                          
Released:  May 25, 2005                 

By the Acting Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.     In this Notice of Apparent Liability for Forfeiture 
(``NAL''),1 we find that Fox Television Stations, Inc. (``Fox'') 
apparently willfully or repeatedly violated section 713 of the 
Communications Act of 1934, as amended (the ``Act''),2 and 
section 79.2(b)(1)(i) of the Commission's rules.3  Fox 
apparently violated the Act and the Commission's rules by 
failing, in a timely manner, to make accessible to persons with 
hearing disabilities emergency information that it provided 
aurally in its programming for WTTG during a 
thunderstorm/tornado watch in the Washington, D.C. Metropolitan 
area on May 25, 2004.  Based upon our review of the facts and 
circumstances, we find Fox apparently liable for a forfeiture in 
the amount of $16,000. 

II.  BACKGROUND

      2.     Approximately one in ten Americans - 28 million - 
has some level of hearing loss; in the population of people over 
65 years of age that number increases to one in three.4  As the 
median age of the population continues to rise, the proportion of 
Americans with hearing loss will likely increase.5  According to 
the American Speech-Language-Hearing Association, ``[t]he number 
of Americans with a hearing loss has evidentially doubled during 
the past 30 years.  Data gleaned from Federal surveys illustrate 
the following trend of prevalence [of hearing loss] for 
individuals aged three years or older: 13.2 million (1971), 14.2 
million (1977), 20.3 million (1991), and 24.2 million (1993).''6  
Access to television information in an emergency is critical for 
all Americans, including this important and growing segment of 
our population. 

     A.  Requirements for Accessibility of Emergency Information

     3.     Congress recognized how important visual access to 
televised information is to individuals with hearing 
disabilities, and required the Commission, pursuant to section 
713 of the Act,7 to prescribe rules regarding Video Programming 
Accessibility.  Pursuant to this direction, and out of a concern 
that critical emergency information be available to every 
television viewer, including persons with hearing disabilities, 
the Commission adopted section 79.2 of the rules.8  Section 
79.2(b)(1)(i) requires that video programming distributors 
providing emergency information in the audio portion of 
programming must provide persons with hearing disabilities with 
the same access to such information that distributors provide to 
listeners, either through a method of closed captioning or by 
using another method of visual presentation.9  

 4.     The Commission's rules do not require closed 
captioning,10 but allow for other methods of visual presentation, 
including, but not limited to, open captioning, crawls, or 
scrolls.11  The Commission stated that it was permitting these 
alternatives because it was concerned about the limited ``real-
time'' captioning resources available and their current costs.12  
The Commission made clear, however, that regardless of the method 
of visual presentation used, video programming distributors must 
``use [a] method of visual presentation [that] ensure[s] the same 
accessibility [to emergency information] for persons with hearing 
disabilities as for any other viewer, as required by the 
rule.''13  This could include already prepared signs or charts or 
handwritten information contained on a white board.14  The 
Commission mandated equal accessibility because emergency 
information is of ``equal or greater importance to persons with 
hearing disabilities, and television plays a critical role in its 
dissemination.'' 15  Further, it is clear from the Commission's 
definition of emergency information, i.e., information about a 
``current'' emergency that provides critical details concerning 
``how to respond to the emergency,''16 that the Commission 
required video programming distributors to display emergency 
information in a timely manner so that viewers can respond to a 
current emergency before becoming endangered.  The Commission 
long ago recognized the importance of timeliness of providing 
emergency information, noting that ``if visual notification is 
delayed, it should not be unreasonably delayed so that a hearing 
impaired person would not have time to take reasonable and 
constructive precautions with regard to the emergency.''17  

     5.     The Commission defined emergency information in 
section 79.2 as ``information, about a current emergency, that is 
intended to further the protection of life, health, safety, and 
property, i.e., critical details regarding the emergency and how 
to respond to the emergency,''18 not merely the existence of an 
emergency.19  The rule provides the following non-exhaustive list 
of examples of the types of emergencies covered:  ``tornadoes, 
hurricanes, floods, tidal waves, earthquakes, icing conditions, 
heavy snows, widespread fires, discharge of toxic gases, 
widespread power failures, industrial explosions, civil 
disorders, school closings and changes in school bus schedules 
resulting from such conditions, and warnings and watches of 
impending changes in weather.''20  The Commission further stated 
that critical details included, among other things, ``specific 
details regarding the areas that will be affected by the 
emergency, evacuation orders, detailed descriptions of areas to 
be evacuated, specific evacuation routes, approved shelters or 
the way to take shelter in one's home, instructions on how to 
secure personal property, road closures, and how to obtain relief 
assistance.''21  Since the adoption of the rules, the Commission 
has repeatedly reminded video programming distributors of their 
obligation to make emergency information accessible.22  
     B.  The Investigation  

      6.     On May 25, 2004, the Washington, D.C. Metropolitan 
area was subject to a severe thunderstorm/tornado watch.  The 
Commission received a consumer complaint against WTTG alleging 
that the station failed to make information on the 
thunderstorm/tornado watch accessible to persons with hearing 
disabilities that resulted in confusion about the severity and 
location of the emergency for those viewers.  In the words of the 
complainant, ``[Fox] cut into the screen during `American Idol' 
for news about the weather.  From this visual (with no captions), 
it look[ed] like the bad weather might be in Maryland.  I was 
totally confused.''23  

     7.     The Enforcement Bureau (``Bureau'') subsequently 
launched an investigation into Fox's broadcasts carried on WTTG 
on that date.24  The Bureau sent a Letter of Inquiry to Fox, 
directing Fox to provide, among other things, videotapes of Fox's 
May 25, 2004 coverage of the thunderstorm/tornado watch on WTTG.  
Fox filed a response that included the requested videotapes.25  

     8.     The Bureau has reviewed Fox's tapes of WTTG's 
programming and identified two instances where the station 
aurally provided emergency information regarding the way to take 
shelter in one's home but failed to provide the visual 
presentation of that emergency information.  The two instances 
are described below.     

     (a)  At 6:20 p.m., Ms. Gwen Tolbart told viewers in the 
Frederick and Hagerstown, Maryland areas that they should take 
cover, go to the lowest level of their house, and stay close to 
the floor.  Fox failed to provide closed captioning or any visual 
presentation of this emergency information on WTTG.

     (b) At 6:45 p.m., Ms. Tolbart told viewers located in 
Lovettsville, Leesburg, and Lucketts, Virginia, to take cover, go 
to the lowest level of their house, and go to an interior room.  
Fox failed to provide closed captioning or any visual 
presentation of this emergency information on WTTG.
            
III.        DISCUSSION

     9.     As an initial matter, we note that Fox is a ``video 
programming distributor'' subject to section 79.2 of the 
Commission's rules.  Section 79.1(a)(2) defines a video 
programming distributor as ``[a]ny television broadcast station 
licensed by the Commission....''26 As a broadcast licensee, Fox 
must comply with the Commission's rules regarding the 
accessibility of emergency information to individuals with 
hearing disabilities.  
     10.     We now turn to an analysis of the information 
broadcast by Fox over WTTG during the time period at issue.  Fox 
interrupted its regular programming with coverage of the 
thunderstorm/tornado watch on several occasions.  Fox's 
meteorologist repeated emergency information many times, 
emphasizing the areas where the thunderstorm or tornado was 
located and was likely to cause damage or loss of life, warned 
viewers to take shelter in their homes, and provided instructions 
for safe sheltering.  While Fox visually presented some 
information during this period, mostly concerning the location of 
the severe weather, it appears that in several instances Fox did 
not make critical information available to persons with hearing 
disabilities.  
     11.     The record shows that, in two separate instances 
from approximately 6:20 p.m. to 6:45 p.m., Fox aurally provided 
critical emergency information to viewers at specific locations 
on the way to take shelter in one's home, but failed to provide 
any visual presentation of this information.27  The information 
in question concerning the way to take shelter in one's home 
falls squarely within the Commission's definition of ``emergency 
information'' because it is ``[i]nformation, about a current 
emergency, that is intended to further the protection of life, 
health, safety, and property, i.e., critical details regarding 
the emergency and how to respond to the emergency.''28  Indeed, 
the Commission offered this category of information as an example 
of critical details covered by the rule.29   In addition, the 
Commission offered tornadoes and warnings and watches of 
impending changes in weather as examples of covered 
emergencies.30  Fox did not, however, provide visual presentation 
of the shelter instructions after they were aurally provided.  We 
note that, because of the rapid movement of a tornado and the 
quickly changing weather patterns associated with this type of 
weather event, it is vital that basic emergency information be 
provided visually and in a timely manner.  The failure to present 
emergency information visually in this instance could have 
resulted in serious bodily harm or loss of life for persons with 
hearing disabilities.  Accordingly, based on the facts and 
circumstances present here, we find Fox liable for two apparent 
violations of section 79.2(b)(1)(i).   

     12.     Fox provides evidence that its failure to provide 
closed captioning was caused by the unavailability of its 
contract closed captioning service.31  As stated above, however, 
and as described in more detail below, section 79.2(b)(1)(i) 
mandates only that Fox provide visual access to emergency 
information by some means, not that Fox provide such visual 
access by closed captioning. Therefore, even without the 
assistance of its contract captioner, Fox could have complied 
with the rule by utilizing crawls, graphics, or some other method 
of visual presentation.  Indeed, Fox displayed a chart showing 
shelter tips at 5:53 p.m., but it failed to provide that chart 
after shelter tips were aurally provided later during its 
programming.  Therefore, viewers with hearing disabilities who 
were not watching at 5:53 p.m. were not made aware of shelter 
tips when they were communicated aurally at other times.  Fox's 
evidence does not, therefore, alter our conclusion.  

   
IV.         FORFEITURE AMOUNT

     13.     For the time period at issue in this case, section 
503(b)(2)(A) of the Communications Act authorized the Commission 
to assess a forfeiture of up to $27,500 for each violation of the 
Act or of any rule, regulation, or order issued by the Commission 
under the Act.32  In exercising such authority, we are required 
to take into account "the nature, circumstances, extent, and 
gravity of the violation and, with respect to the violator, the 
degree of culpability, any history of prior offenses, ability to 
pay, and such other matters as justice may require."33  Based on 
our review of the record, we conclude that Fox is apparently 
liable for the willful or repeated violation of our rules.

     14.     The Commission's forfeiture guidelines do not 
currently establish a base forfeiture amount for violations of 
section 79.2(b)(1)(i).  Enforcement of the emergency 
accessibility rules is important, as lives may depend on 
compliance.  We find that $8,000, the base forfeiture amount for 
violations of rules relating to distress and safety frequencies 
and for failure to install and operate Emergency Alert System 
(``EAS'') equipment, is analogous and warranted for apparent 
violations of section 79.2(b)(1)(i).34  The purpose of the EAS 
and safety frequencies rules is to warn persons of emergencies, 
and the purpose of section 79.2(b)(1)(i) is the same.  Fox 
provided aural emergency information without providing visual 
presentation on several occasions, resulting in two apparent 
violations of the rule.  Accordingly, we propose a forfeiture of 
$16,000 for the two apparent violations here.  Fox will have the 
opportunity to submit further evidence and arguments in response 
to this NAL to show that no forfeiture should be imposed or that 
some lesser amount should be assessed.35
 
V.   CONCLUSIONS AND ORDERING CLAUSES

     15.     We have determined that Fox Television Stations, 
Inc. has apparently willfully or repeatedly violated section 713 
of the Act and section 79.2(b)(1)(i) of the Commission's rules by 
failing to make emergency information that it provided to hearing 
people accessible to persons with hearing disabilities, resulting 
in a proposed forfeiture of $16,000.

     16.     Accordingly, IT IS ORDERED, pursuant to section 
503(b) of Communications Act of 1934, as amended, 47 U.S.C. § 
503(b), and section 1.80 of the Commission's rules, 47 C.F.R. § 
1.80, that Fox Television Stations, Inc. IS HEREBY NOTIFIED of an 
Apparent Liability for Forfeiture in the amount of $16,000 for 
willful or repeated violations of section 713 of the Act, 47 
U.S.C. § 613, and section 79.2(b)(1)(i) of the Commission's 
rules, 47 C.F.R. § 79.2(b)(1)(i), as described in the paragraphs 
above.

     17.     IT IS FURTHER ORDERED, pursuant to section 1.80 of 
the Commission's rules, 47 C.F.R. § 1.80, that within thirty (30) 
days of the release of this Notice, Fox Television Stations, Inc. 
SHALL PAY the full amount of the proposed forfeiture OR SHALL 
FILE a response showing why the proposed forfeiture should not be 
imposed or should be reduced.36  

     18.     Payment of the forfeiture must be made by check or 
similar instrument, payable to the order of the Federal 
Communications Commission.  The payment must include the 
NAL/Acct. No. and FRN No. referenced above.  Payment by check or 
money order may be mailed to Federal Communications Commission, 
P.O. Box 358340, Pittsburgh, PA 15251-8340.  Payment by overnight 
mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 
1540670, Pittsburgh, PA 15251.   Payment by wire transfer may be 
made to ABA Number 043000261, receiving bank Mellon Bank, and 
account number 911-6106.
     19.     The Bureau will not consider reducing or canceling a 
forfeiture in response to a claim of inability to pay unless the 
petitioner submits: (1) federal tax returns for the most recent 
three-year period; (2) financial statements prepared according to 
generally accepted accounting principles (``GAAP''); or (3) some 
other reliable and objective documentation that accurately 
reflects the petitioner's current financial status.  Any claim of 
inability to pay must specifically identify the basis for the 
claim by reference to the financial documentation submitted.

     20.     Requests for payment of the full amount of this 
Notice of Apparent Liability under an installment plan should be 
sent to:  Chief, Revenue and Receivables Operations Group, 445 
12th Street, S.W., Washington, D.C. 20554.37

     21.    IT IS FURTHER ORDERED that copies of this Notice of 
Apparent Liability for Forfeiture SHALL BE SENT by certified mail 
to Molly Pauker, Vice President, Corporate and Legal Affairs, Fox 
Television Stations, Inc, 5151 Wisconsin Avenue, N.W., 
Washington, D.C. 20016. 

               
                         FEDERAL COMMUNICATIONS COMMISSION



                         Kris A. Monteith
                         Acting Chief, Enforcement Bureau

_________________________

1See 47 U.S.C. § 503(b)(4)(A).  The Commission has authority 
under this section of the Act to assess a forfeiture penalty 
against a broadcast licensee if the Commission determines that 
the licensee has "willfully or repeatedly" failed to comply with 
the provisions of the Act or with any rule, regulation, or order 
issued by the Commission under the Act.  For a violation to be 
willful, it need not be intentional.  Southern California 
Broadcasting Co., 6 FCC Rcd 4387 (1991).

247 U.S.C. § 613.
347 C.F.R. § 79.2(b)(1)(i).
4See Section 68.4(a) of the Commission's Rules Governing  Hearing 
Aid-Compatible Telephones,  WT  Docket  No.  01-309,  Report  and 
Order, 18  FCC Rcd  16753,  at para.  5  (2003) (HAC  Report  and 
Order); Erratum, WT Docket  No. 01-309, 18  FCC Rcd 18047  (2003) 
(citations omitted).
5See HAC Report and Order, 18 FCC Rcd 16753, at para. 5..
6From:  
http://www.asha.org/public/hearing/disorders/prevalence_adults.h-
tm  (visited May 24, 2005) (citations omitted).

747 U.S.C § 613.
8Closed Captioning and  Video Description  of Video  Programming, 
Implementation of Section  305 of the  Telecommunications Act  of 
1996, and Accessibility of  Emergency Programming, Second  Report 
and Order, 15 FCC  Rcd 6615, 6621-22,  para. 12 (2000)  (``Second 
Report and Order'').
947 C.F.R. § 79.2(b)(1)(i).
10Second Report and Order, 15 FCC Rcd at 6620, para. 11.
11Id. at 6618, para. 8.  
12Id. at 6621, para. 11.
13Id. at 6623-24, para. 16.
14See generally, Amendment of Part 73 of the Rules to Establish 
Requirements for Captioning of Emergency Messages on Television, 
Report and Order, Docket No. 20659, 61 FCC2d 18 (1976) (1976 
Order), at paras. 9, 11 and Appendix B (relating to prior visual 
presentation requirements and noting potential use of slides and 
hand printed messages).
15Id. at 6619-20, paras. 9, 10 (citing examples of the importance 
of timely visual emergency information including an inaccessible 
tornado warning that caused delay in evacuation of children and 
an inaccessible water contamination warning that caused persons 
with hearing disabilities to needlessly incur health risks of 
which they were not initially aware).  In attempting to determine 
the scope of this rule, the Commission expressed concern that the 
disabilities community have available ``sufficient information'' 
with the ``same immediacy'' as other viewers.  Closed Captioning 
and Video Description of Video Programming, Implementation of 
Section 305 of the Telecommunications Act of 1996, and 
Accessibility of Emergency Programming, Further Notice of 
Proposed Rulemaking, 13 FCC Rcd 5627, 5631 (1998).  In addition 
to the plain meaning of the ``emergency information,'' the nature 
of the critical details described in section 79.2(a)(2) makes 
clear that timely visual presentation is required. 
1647 C.F.R. § 79.2(a)(2).
17 1976 Order, 61 FCC2d 18, at para. 11.
18Id.
19Second Report and Order, 15 FCC Rcd at 6617, para. 5.
20Id. (emphasis added).
21Note to 47 C.F.R. § 79.2(a)(2) (emphasis added).
22See, e.g., Public Notice, ``Reminder to Video Programming 
Distributors of Obligation to Make Emergency Information 
Accessible to Persons with Hearing Disabilities,'' DA 01-1930, 16 
FCC Rcd 15348 (2001); Public Notice, ``Reminder to Video 
Programming Distributors of Obligation to Make Emergency 
Information Accessible to Persons with Hearing or Vision 
Disabilities,'' 17 FCC Rcd 14614 (2002); Public Notice, 
``Reminder to Video Programming Distributors of Obligation to 
Make Emergency Information Accessible to Persons with Hearing or 
Vision Disabilities,'' 18 FCC Rcd 14670 (2003); Public Notice, 
``Reminder to Video Programming Distributors of Obligations to 
Make Emergency Information Accessible to Persons with Hearing or 
Vision Disabilities,'' 19 FCC Rcd 9882 (May 24, 2004); Public 
Notice, ``Reminder to Video Programming Distributors of 
Obligation to Make Emergency Information Accessible to Persons 
with Hearing Disabilities,'' DA 05-688, 20 FCC Rcd ____, 2005 WL 
626867 (CGB March 17, 2005); Letter from Colleen K. Heitkamp, 
Chief, Telecommunications Consumers Division, Enforcement Bureau, 
FCC, to Molly Pauker, Vice President, Corporate and Legal 
Affairs, Fox Television Stations, Inc., (April 22, 2004).
23Complaint filed by Cheryl A. Heppner, Executive Director, 
Northern Virginia Resource Center for Deaf and Hard of Hearing 
Persons (``NVRC'') (filed May 28, 2004) (``NVRC Complaint'').  
NVRC is located in Fairfax, Virginia, a suburb of Washington, 
D.C.
24Fox is the licensee of WTTG  and is a video programming 
distributor as defined in our rules. 47 C.F.R. § 79.1(a)(2).   
Letter from Molly Pauker, Vice President, Corporate and Legal 
Affairs, Fox Television Stations, Inc., to Peter G. Wolfe, Senior 
Attorney, FCC (June 29, 2004) (``Response'').  

25Letter from Colleen K. Heitkamp, Chief, Telecommunications 
Consumers Division, Enforcement Bureau, FCC, to Fox Television 
Stations, Inc. (June 7, 2004) (``Letter of Inquiry'').  
2647 C.F.R. § 79.1(a)(2).
27See supra para. 8.
28Id.  In addition, the information here was primarily intended 
for the audience in the geographic area where the emergency was 
occurring.  47 C.F.R. § 79.2(b)(2).
29Note to 47 C.F.R. § 79.2(a)(2).
3047 C.F.R. § 79.2(a)(2).
31Response at 7, Exhibit 1.
32Specifically, section 503(b)(2)(A) provides for forfeitures up 
to $25,000 for each violation or a maximum of $250,000 for each 
continuing violation by (i) a broadcast station licensee or 
permittee, (ii) a cable television operator, or (iii) an 
applicant for any broadcast or cable television operator license, 
permit, certificate or similar instrument.  47 U.S.C. § 
503(b)(2)(A).  The Commission amended its rules by adding a new 
subsection to its monetary forfeiture provisions that 
incorporates by reference the inflation adjustment requirements 
contained in the Debt Collection Improvement Act of 1996 (DCIA), 
Pub L. No. 104-134, § 31001, 110 Stat. 1321 (1996).  Thus, the 
maximum statutory forfeiture per violation pursuant to section 
503(b)(2)(A) increased from $25,000 to $27,500.  See Amendment of 
Section 1.80(b) of the Commission's Rules and Adjustment of 
Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd. 18,221 
(2000).  We note that the Commission recently increased the per 
violation amount again to $32,500.  See Amendment of Section 
1.80(b) of the Commission's Rules and Adjustment of Forfeiture 
Maxima to Reflect Inflation, 2004 WL 1366972, FCC 04-139 (rel. 
June 18, 2004); 69 FR 47788 (establishing an effective date of 
September 7, 2004).

33See 47 U.S.C. § 503(b)(2)(D); see also The Commission's 
Forfeiture Policy Statement and Amendment of Section 1.80 of the 
Commission's Rules, 12 FCC Rcd 17,087 (1997); recon. denied, 15 
FCC Rcd 303 (1999).

34See  47 C.F.R. § 1.80(b)(4).
35See 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3).

36If Fox chooses to respond, it should mail its response to 
Colleen Heitkamp, Chief, Telecommunications Consumers Division, 
Enforcement Bureau, Federal Communications Commission, 445 12th 
Street, S.W. Room-4C224, Washington, D.C. 20554.  Fox must 
include the file number listed above.  It should also send an 
electronic copy of its response to Mark Stone, Deputy Chief, 
Telecommunications Consumers Division, at mark.stone@fcc.gov and 
Peter Wolfe, Senior Attorney, Telecommunications Consumers 
Division, at peter.wolfe@fcc.gov.
3747 C.F.R. § 1.1914.