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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Midwest Television, Inc. ) File No. EB-04-TC-061
Licensee of KFMB-TV ) Facility ID No. 42122
San Diego, CA ) NAL/Acct. No. 200532170006
) FRN: 0003750775
)
Apparent Liability for )
Forfeiture )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 22, 2005 Released: February 23,
2005
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''),1 we find that Midwest Television, Inc. (``Midwest'')
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 Midwest
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 KFMB-TV during a wildfires
emergency in the San Diego, California area on October 26 and
October 27, 2003. Based upon our review of the facts and
circumstances, we find Midwest apparently liable for a
forfeiture in the amount of $20,000.
II. BACKGROUND
2. Midwest is the licensee of KFMB-TV4 and is a video
programming distributor as defined in our rules.5 As a video
programming distributor, Midwest is obligated to provide to
persons with hearing disabilities the same access to emergency
information that it provides to listeners of its programming.6
3. During the week beginning October 26, 2003, there were
wildfires throughout Southern California, including the San Diego
area. These wildfires caused loss of life, injuries, and
extensive damage to property and natural resources. Due to high
winds, these fires spread extremely rapidly, and caused the
evacuation of many of San Diego's residents. During this time,
Midwest broadcast emergency information regarding the wildfires.
4. After receiving a consumer complaint against KFMB-TV
alleging that the station failed to make information on the
wildfires accessible to persons with hearing disabilities, the
Enforcement Bureau (``Bureau'') launched an investigation into
Midwest's broadcasts on KFMB-TV that week. We sent a Letter of
Inquiry to Midwest, directing Midwest to provide, among other
things, videotapes of Midwest's coverage of the wildfires on
KFMB-TV.7 Midwest filed a response, including the requested
videotapes. 8
5. The Bureau has reviewed Midwest's tapes of KFMB-TV's
programming and identified numerous instances where the station
aurally provided emergency information but substantially delayed
the visual presentation of emergency information, if it provided
the visual presentation at all. Some illustrative examples are
shown below.9
(a) Between 7:29 a.m. and 7:41 a.m.,10 a
representative of the California Department of Forestry
(``CDF'') reported that Wildcat Canyon Road was closed and a
representative of the San Diego County Sheriff's Department
reported that Route 67, Scripps Poway Parkway, San Vicente
Road and Wildcat Canyon Road were closed. The recorded
footage that Midwest provided of its broadcast does not show
any visual presentation of this emergency information
through at least 6:54 p.m.,11 over eleven hours after the
aural presentation.
(b) Between 8:38 a.m. and 8:44 a.m., the CDF
representative again reported that Wildcat Canyon Road and
Route 67 were closed. Midwest did not provide any visual
presentation of this emergency information through at least
6:54 p.m., over ten hours after the aural presentation.
(c) At 9:50 a.m. and 9:51 a.m., a representative of
the American Lung Association advised viewers at home to
protect themselves against air pollution caused by the fires
by running their air conditioner, filtering the air,
avoiding painting, shutting the windows and drinking plenty
of fluids. Midwest did not provide any visual presentation
of this emergency information through at least 6:54 p.m.,
over nine hours after the aural presentation.
III. DISCUSSION
6. Section 713 of the Act requires the Commission to
prescribe rules on Video Programming Accessibility.12 Pursuant
to section 713, and out of a concern that the same critical
emergency information be available to every television viewer,
including persons with hearing disabilities, the Commission
adopted section 79.2 of the rules.13 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.14 Section 79.2 does not require closed
captioning,15 but does allow for other methods of visual
presentation, including, but not limited to, open captioning,
crawls, or scrolls.16 In addition, other methods of visual
presentation could include maps, signs, and charts, each of which
can communicate emergency information to those with hearing
disabilities. 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.17
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.''18 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.'' 19 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,''20 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. Thus,
although the Commission declined to require video programming
distributors to close caption emergency information they provide
aurally, the Commission did require video programming
distributors to visually present by some method in real-time the
emergency information they provide aurally.
7. Further, 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,''21 not merely the existence of
an emergency.22 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.''23 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.''24 The Commission has several times reminded video
programmers of their obligation to make emergency information
accessible.25
8. As an initial matter, we find that Midwest 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,
Midwest must comply with the Commission's rules regarding the
accessibility of emergency information to individuals with
hearing disabilities.
9. We now turn to an analysis of the information
broadcast by Midwest over KFMB-TV during the time period at
issue. We note at the outset that the October 26 and October 27
wildfires caused loss of life, injuries, and extensive damage to
property and natural resources in the City of San Diego, San
Diego County, and other areas of Southern California.27 The
fires spread rapidly via high winds causing city and county
officials to emphasize repeatedly that residents should evacuate
immediately when they were told to do so and that they should pay
attention to the information provided by television stations.28
Police gave evacuation orders in certain areas over bullhorns; it
was therefore especially important for persons with hearing
disabilities, who might not be able to hear the bullhorns, to
have timely warnings to evacuate provided visually on television.
Midwest's own coverage of the fires illustrates the urgency and
danger of the situation. Midwest interrupted regular programming
with full coverage of the wildfires. Midwest anchors and
reporters repeated emergency information many times, emphasizing
the number of persons injured, acres burned, and houses
destroyed. Midwest personnel characterized the fires as
``huge,'' a ``wall of flames'' and ``the biggest fire I've ever
seen.''29 While Midwest visually presented some information
during this period, it appears that in numerous instances Midwest
did not make critical information available to persons with
hearing disabilities.
10. The record shows that, in 11 separate instances from
7:29 a.m. on October 26 to 6:10 p.m. on October 27, Midwest
aurally provided critical emergency information on road closures
and the way to take shelter in one's home, but provided visual
presentation of this information, if at all, only after a
substantial delay of at least 30 minutes. The examples provided
above at Paragraph 5 are illustrative. The information in
question concerning road closures and 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.''30
Indeed, the Commission offered these categories of information as
examples of critical details covered by the rule.31 In
addition, the Commission offered widespread fires as an example
of an emergency covered by the Commission's rules.32
.
11. As set forth above, video programming distributors
are obligated to provide viewers with hearing disabilities with
the ``same accessibility'' to emergency information as they
provide to other viewers. Here, it is apparent that in numerous
instances Midwest delayed the visual presentation of emergency
information, thereby failing to provide persons with hearing
disabilities the same access to emergency information that it
provided to other viewers and apparently violating section 79.2
of our rules. We recognize that real-time closed captioning is
not always available to broadcasters, and that creating visual
information, in certain circumstances, may take some very short
period of time. We emphasize, however, that any visual
presentation of emergency information must be simultaneous or
nearly simultaneous to the aural emergency information to provide
the ``same accessibility'' to emergency information to persons
with hearing disabilities. Nonetheless, as a matter of
convenience in order to preserve our resources, we have exercised
our discretion here to propose a forfeiture for only those
situations in which Midwest provided closed captioning or other
visual presentation of emergency information, if at all, after a
substantial delay of greater than 30 minutes after Midwest
provided the same information aurally (i.e., those listed in the
text and in Appendix A). It is clear from these examples that
Midwest's apparent violations left persons with hearing
disabilities without the same critical information the station
gave to its listening audience. We note that our conclusions
here are based on the specific facts and circumstances presented.
We might reach different determinations regarding which apparent
violations to include in an NAL based on a different record. For
example, we might find it more appropriate in other circumstances
and based on different facts to propose a forfeiture for those
apparent violations where a video programming distributor
provides visual presentation of emergency information in less
than 30 minutes after it has provided aural information.
12. In response to the Bureau's Letter of Inquiry,
Midwest argues that the details to be made to be made accessible
to the hearing impaired was explicitly left to the licensee's
good faith judgment by the Second Report and Order.33 Midwest
appears to contend that the Commission's statement in the Second
Report and Order that ``[i]n determining whether particular
details need to be made accessible, we will permit programmers to
rely on their good faith judgments''34 gives it unchecked
latitude to determine where and when emergency information should
be presented visually. We disagree. The language of section
79.2(b)(1)(i) is unequivocal: ``[e]mergency information that is
provided in the audio portion of the programming must be made
accessible....''35 While the order allows video programming
distributors to exercise their good faith judgment in determining
which ``particular details'' to broadcast, nothing in the order
suggests that video programming distributors may rely on this
limited exception to excuse a complete failure to visually
present in a timely fashion categories of critical information
that are clearly covered by the rule. It is not even remotely
plausible to suggest that programmers may refuse to present such
basic, critical information in a wildfire emergency as road
closures and shelter-at-home advice. Such an expansive
interpretation of the good faith exception would swallow the rule
and render it wholly ineffective.
13. We conclude, therefore, that Midwest gave aural
emergency information on KFMB-TV 11 separate times on October 26
and October 27, 2003, but apparently did not provide the same
access to the information to persons with hearing disabilities by
using a method of closed captioning or a method of visual
presentation. Thus, Midwest apparently violated section
79.2(b)(1)(i) of the Commission's rules.
IV. FORFEITURE AMOUNT
14. For the time 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.36 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."37 Based on
our review of the record, we conclude that Midwest is apparently
liable for the willful or repeated violation of our rules.
15. 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).38 The purpose of the EAS
and safety frequencies rules are to warn persons of emergencies,
and the purpose of section 79.2(b)(1)(i) is the same. Midwest
provided aural emergency information without providing visual
presentation on numerous occasions, resulting in 11 apparent
violations of the rule for which we propose a forfeiture. While
we believe that a $8,000 base forfeiture amount for violations of
section 79.2(b)(1)(i) is appropriate generally, a strict
application to all 11 apparent violations here would result in a
total proposed forfeiture that is excessive in light of the
circumstances presented. We therefore propose a forfeiture of
$20,000. Midwest 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.39
V. CONCLUSIONS AND ORDERING CLAUSES
16. We have determined that Midwest Television, 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
persons accessible to persons with hearing disabilities,
resulting in a proposed forfeiture of $20,000.
17. 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 Midwest Televison, Inc. IS HEREBY NOTIFIED of an
Apparent Liability for Forfeiture in the amount of $20,000 for
willful and 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 and contained in Appendix A.
18. 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, Midwest Television, 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.40
19. IT IS FURTHER ORDERED that payment of the forfeiture
amount should 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 must be mailed to Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box. 73482, Chicago, IL 60673-7482. Payment by
overnight mail may be sent to Bank One/LB 73482, 525 West Monroe,
8th Floor Mailroom, Chicago, IL 60661. Payment by wire transfer
may be made to ABA Number 071000013, receiving Bank One, and
account number 1165259.
20. 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 practices (``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.
21. 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., 20554.41
22. IT IS FURTHER ORDERED that copies of this Notice of
Apparent Liability for Forfeiture SHALL BE SENT by certified mail
to E.D. Trimble, Vice President, Midwest Television and President
and Chief Operating Officer, KFMB Stations, 7677 Engineer Road,
San Diego, CA 92111.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
APPENDIX A
(1) Between 7:29 a.m. and 7:41 a.m.,42 a representative of
the California Department of Forestry (``CDF'') reported
that Wildcat Canyon Road was closed and a representative of
the San Diego County Sheriff's Department reported that
route 67, Scripps Poway Parkway, San Vicente Road and
Wildcat Canyon Road were closed. The recorded footage that
Midwest provided of its broadcast does not show any visual
presentation of this emergency information through at least
6:54 p.m.43
(2) Between 8:38 a.m. and 8:44 a.m., the CDF representative
again reported that Wildcat Canyon Road and Route 67 were
closed. Midwest did not provide visual presentation of
this emergency information through at least 6:54 p.m.
(3) At 9:50 a.m. and 9:51 a.m., a representative of the
American Lung Association advised viewers at home to protect
themselves against air pollution caused by the fires by
running their air conditioner, filtering the air, avoiding
painting, shutting the windows and drinking plenty of
fluids. Midwest did not provide visual presentation of this
emergency information through at least 6:54 p.m.
(4) Between 12:08 p.m. and 12:11 p.m., the American Lung
Association representative advised viewers at home to avoid
exercise and painting, and, if having breathing
difficulties, to run their air conditioner through the
filter and breathe through a damp cloth and through their
noses. Midwest did not provide visual presentation of this
emergency information through at least 6:54 p.m.
(5) Between 12:33 p.m. and 12:42 p.m., Jeff Goldberg, a
retired police officer, reported that Routes I-15, 805, and
163 were closed. Midwest did not provide visual
presentation of this emergency information through at least
6:54 p.m.
(6) Between 1:12 p.m. and 1:16 p.m., a representative of
the California Highway Patrol reported that Routes I-8 and
805, and Otay Lakes Road were closed. Midwest did not
provide closed captioning or other visual presentation of
any portion of this emergency information until 2:30 p.m to
2:32 p.m., when it provided visual presentation of some of
the emergency information. Midwest did not provide visual
presentation of the remainder of this emergency information
through at least 6:54 p.m.
(7) Between 1:32 p.m. and 1:44 p.m., the San Diego County
Health Commissioner advised viewers at home to close their
windows and doors, drink fluids, run their air conditioner,
wash out their eyes with water, and call their doctor if
they have health problems. Midwest did not provide visual
presentation of this emergency information through at least
6:54 p.m.
(8) Between 2:02 p.m. and 2:07 p.m., the anchor advised
viewers at home to keep their windows closed and their air
conditioning on. Midwest did not provide visual
presentation of this emergency information through at least
6:54 p.m.
(9) Between 3:25 p.m. and 3:27 p.m., reporter Carlo
Caccetti said that Route I-8 was closed. Midwest did not
provide visual presentation of this emergency information
through at least 6:54 p.m.
(10) Between 4:13 p.m. and 4:29 p.m., the anchor advised
viewers at home to stay inside, close their doors and
windows, put on their air conditioning, breathe through a
damp cloth, and breathe through their noses. Midwest did
not provide visual presentation of this emergency
information through at least 6:54 p.m.
(11) Between 6:08 p.m. and 6:09 p.m. on October 27,
2003, reporter Deb Henke said that Routes 78-79 and 67 and
San Vicente Road were closed. Midwest did not provide
visual presentation of this emergency information through at
least 6:54 p.m.
_________________________
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).
4Letter from E.D. Trimble, Vice President, Midwest Television and
President and Chief Operating Officer, KFMB Stations, to Peter G.
Wolfe, Ssenior Attorney, FCC (June 30, 2004) (``Response''),
Exhibit 4.
547 C.F.R. § 79.1(a)(2).
647 C.F.R. § 79.2(b)(1)(i).
7Letter from Colleen K. Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau, FCC, to E.D. Trimble,
Vice President, Midwest Television and President and Chief
Operating Officer, KFMB Stations, KUSI News (May 26, 2004)
(``Letter of Inquiry'').
8Response, filed June 30, 2004.
9The specific instances listed here and in Appendix A, all of
which demonstrate Midwest's apparent failure to provide visual
access to emergency information, form the basis of this NAL.
10The examples described in the text all occurred on October 26,
2003. Midwest's videotapes generally do not indicate the time of
coverage. However, Midwest did provide written information
specifying the dates and times of the broadcasts contained on the
videotapes. Response, Exhibit 2. From this written information,
we were able to ascertain when emergency information was aurally
presented and how long it took to visually present such
information, if it was presented at all.
11Midwest did not provide videotape of all its wildfire coverage
on October 26 and 27. See Response at 4 (``[f]or Sunday, October
26, there are two tapes covering the approximate time period 7:21
a.m. to 7:00 p.m. and the 11:30 p.m. 35-minute late evening news.
For Monday, October 27, there are three tapes covering
approximately two hours of regularly scheduled newscasts on that
day.'') Specifically, Midwest did not provide any videotapes for
October 26, 2003 between 6:54 p.m. and 11:30 p.m. and on October
27, 2003 before 5:00 p.m., between 5:30 p.m. and 6:00 p.m., and
between 7:00 p.m. and 11:00 p.m. Consequently, we cannot
determine whether Midwest, during these gaps of time, visually
presented emergency information that it had previously aurally
presented. In our description of such cases, we note that
Midwest did not make the emergency information accessible through
at least the beginning of the missing coverage.
1247 U.S.C § 613.
13Closed 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'').
1447 C.F.R. § 79.2(b)(1)(i).
15Second Report and Order, 15 FCC Rcd at 6620, para. 11.
16Id. at 6618, para. 8.
17Id. at 6621, para. 11.
18Id. at 6623-24, para. 16.
19Id. 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 needlessly to 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. See Note to 47
C.F.R. § 79.2(a)(2) discussed infra para. 7.
20 47 C.F.R. § 79.2(a)(2).
21Id.
22Second Report and Order, 15 FCC Rcd at 6617, para. 5.
23Id. (emphasis added).
24Note to 47 C.F.R. § 79.2(a)(2) (emphasis added).
25See, e.g., 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 Obligation to
Make Emergency Information Accessible to Persons with Hearing or
Vision Disabilities,'' 19 FCC Rcd 9882 (May 24, 2004).
2647 C.F.R. § 79.1(a)(2).
27See, e.g., KFMB-TV Videotapes; Gregory Alan Gross, Fire Fight,
No End in Sight for Besieged County, Wildfire Devastation Worst
in Three Decades, S.D. UNION-TRIBUNE, Oct. 27, 2003, at A1.
28 KFMB-TV Videotapes.
29Id.
3047 C.F.R. § 79.2(a)(2). 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)(1)(i).
31Id.
32Id.
33Response at 2, 9, 12, Exhibit 2.
34Second Report and Order, 15 FCC Rcd at 6617, para. 5 (emphasis
added). For example, if the station reported aurally that an
evacuation order was announced at 1:00 p.m., it could reasonably
exercise its discretion to omit the time the order was announced
as long as the station visually presented the existence of the
evacuation order.
3547 C.F.R. § 79.2(b)(1)(i) (emphasis added).
36Specifically, 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).
37See 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).
38See 47 C.F.R. § 1.80(b)(4).
39See 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3).
40If Midwest 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, and 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.
41 7 C.F.R. § 1.1914.
42Examples 1-10 occurred on October 26, 2003.
43See n.11.