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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
) File No. EB-04-TC-149
Fort Myers Broadcasting Company.
) NAL/Acct. No. 200732170044
Licensee of WINK-TV
) FRN: 0004078098
Fort Myers, Florida
)
ORDER
Adopted: February 5, 2007 Released: February 5, 2007
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau, and Fort Myers Broadcasting Company
("FMBC"). The Consent Decree terminates an investigation initiated by the
Enforcement Bureau regarding whether FMBC violated section 713 of the
Communications Act of 1934, as amended (the "Act"), and section
79.2(b)(1)(i) of the Commission's rules by failing to make accessible to
persons with hearing disabilities emergency information that it provided
aurally in its programming for WINK-TV during Hurricane Charley, in the
Fort Myers-Naples Designated Market Area on August 13, 2004.
2. The Enforcement Bureau and FMBC have negotiated the terms of a Consent
Decree that resolve this matter and terminate the investigation. A copy of
the Consent Decree is attached hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree, we find that the
public interest would be served by adopting the Consent Decree and
terminating the investigation. In the absence of material new evidence
relating to this matter, we conclude that our investigation raises no
substantial or material questions of fact as to whether FMBC possess the
basic qualifications, including character qualifications, to remain a
Commission licensee.
4. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and the authority delegated by
sections 0.111 and 0.311 of the Commission's rules, that the attached
Consent Decree IS ADOPTED.
5. IT IS FURTHER ORDERED that the above-captioned investigation into the
matters described herein is terminated.
6. IT IS FURTHER ORDERED that copies of this order shall be sent by
regular first class mail and certified mail - return receipt requested to
Joseph A. Belisle, Leibowitz & Associates, P.A., One SE Third Avenue,
Suite 1450. Miami, FL 33131-1715.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
) File No. EB-04-TC-149
Fort Myers Broadcasting Company
) NAL/Acct. No: 20073217 0044
Licensee of WINK-TV
) FRN: 0004078098
Fort Myers, Florida
)
)
)
CONSENT DECREE
I. Introduction
1. The Enforcement Bureau ("Bureau") of the Federal Communications
Commission (the "FCC" or "Commission") and Fort Myers Broadcasting Company
("FMBC"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
(the "Investigation") regarding whether FMBC complied with section 713 of
the Communications Act of 1934, as amended (the "Act"), and section
79.2(b)(1)(i) of the Commission's rules, with respect to the duty to make
accessible to persons with hearing disabilities emergency information that
it provided aurally in its programming for WINK-TV during Hurricane
Charley, in the Fort Myers-Naples Designated Market Area on August 13,
2004.
II. BACKGROUND
2. On August 13, 2004, Hurricane Charley hit Florida's coast between Fort
Myers and Punta Gorda. The Commission was made aware of allegations that
WINK-TV failed to make information on Hurricane Charley accessible to
persons with hearing disabilities. This failure allegedly deprived
hearing impaired viewers of access to critical emergency information
including evacuation orders and information on what to do to remain safe.
The Bureau subsequently launched an investigation into FMBC's broadcasts
carried on WINK-TV on August 12 and 13, 2004.
III. DEFINITIONS
3. For the Purposes of this Consent Decree, the following definitions
shall apply:
(a) "Act" means the Communications Act of 1934, as amended;
(b) "Bureau" means the Enforcement Bureau of the Federal Communications
Commission;
(c) "Commission" or "FCC" means the Federal Communications Commission;
(d) "Effective Date" means the date on which the Bureau releases the
Adopting Order;
(e) "Extended news coverage of an emergency condition" means news
programming of one half hour or greater duration, other then WINK-TV's
regularly scheduled news programming, during which emergency information,
as defined in section 79.2 of the Commission's rules, is provided;
(f) "Investigation" means the investigation of the Station's broadcasts on
August 12 and 13, 2004;
(g) "FMBC" or the "Company" means Fort Myers Broadcasting Company,
licensee of WINK-TV, Fort Myers, Florida, and any affiliate, d/b/a,
predecessor-in-interest, parent companies and any direct or indirect
subsidiaries of such parent companies, or other affiliated companies or
businesses, and their successors and assigns;
(h) "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms and conditions of this Consent Decree without change, addition, or
modification, and formally terminating the above-captioned Investigation;
(i) "Parties" means FMBC and the Bureau;
(j) "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations; and
(k) "Station" or "WINK-TV" means Fort Myers Broadcasting Company's station
WINK-TV, Facility ID. No. 22093, serving the Fort Myers-Naples Designated
Market Area.
IV. AGREEMENT
4. FMBC agrees that the Bureau has jurisdiction over it and the subject
matter contained in this Consent Decree and the authority to enter into
and adopt this Consent Decree.
5. The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement between them concerning the Investigation.
In express reliance on the covenants and representations contained herein,
and to avoid the potential expenditure of additional public resources, the
Bureau agrees to terminate the Investigation. In consideration for the
termination of this Investigation and in accordance with the terms of this
Consent Decree, FMBC agrees to the terms, conditions, and procedures
contained herein.
6. The Parties agree that this Consent Decree does not constitute either
an adjudication on the merits or a factual or legal finding regarding any
compliance or noncompliance by FMBC with the requirements of the Act and
the Rules. The Parties agree that this Consent Decree is for settlement
purposes only and that by agreeing to this Consent Decree, FMBC does not
admit or deny any non-compliance or violation of the Act or the Commission
rules in connection with the matters that are the subject of this Consent
Decree.
7. The parties agree that the provisions of this Consent Decree shall be
subject to final approval by the Bureau by incorporation of such
provisions by reference in an Order.
8. The parties agree that this Consent Decree shall become effective on
the Effective Date and shall have the same force and effect as any other
order of the Commission. Any violation of the terms of this Consent Decree
shall constitute a separate violation of a Commission order, entitling the
Commission to exercise any rights and remedies attendant to the
enforcement of a Commission order.
9. The Bureau agrees that it shall terminate the Investigation. The Bureau
aggress that, in the absence of new material evidence, it will not on its
own motion initiate any inquiries, investigations, forfeiture proceedings,
hearings, or other sanctions or actions against FMBC, based in whole or in
part on the Investigation or any complaints alleging violations of section
79.2 relating to the coverage FMBC provided of Hurricane Charley on August
12 and 13, 2004.
10. In consideration for the termination of the Investigation, the Station
will implement within 30 days of the Effective Date and maintain the
following Emergency Visual Presentation Policy, which will be overseen by
the Station's News Director:
(a) It shall be the policy of the station to close caption the regularly
scheduled local news and emergency information set forth below. Pursuant
to this policy, the Station will contract with a reputable real-time
closed captioning service provider to obtain real-time closed captioning
for the said regularly scheduled local news and emergency information
presented on WINK-TV:
(1) Monday- Friday News Broadcast at 6 a.m., 12 p.m., 5 p.m., 5:30 p.m., 6
p.m., and 11 p.m.;
(2) Saturday News at 6 p.m. and 11 p.m.;
(3) Sunday News at 6:30 p.m. and 11 p.m.; and,
(4) Any "extended news coverage of an emergency condition" affecting the
Fort-Myers-Naples Designated Market Areas.
(b) It shall be the policy of WINK to close caption all emergency
information broadcast outside a regularly scheduled newscast if such
information is conveyed via the Station's audio. However, pursuant to the
Emergency Visual Presentation Policy, if captioning services are not
immediately available or if captioning services cannot be immediately
secured, WINK will make the critical details of the emergency information
accessible by other visual means, such as crawls, scrolls, or handwriting
on a blackboard, and will continue to do so until captioning begins. In
any event, captioning must be provided as set forth above, within the
first thirty (30) minutes of any "extended news coverage of an emergency
condition." Emergency information will include any information relating to
an imminent or ongoing emergency, as described in section 79.2 of the
Commission's rules, affecting WINK's viewers that is intended to protect
life, health, or property;
(c) Pursuant to the Emergency Visual Presentation Policy, WINK will
promptly commence captioning, or contact its captioning service, before or
contemporaneously with any broadcast coverage of a pending or imminent
emergency that endangers the Station's viewers and will make its best
reasonable efforts to ensure that coverage of the emergency is captioned
as soon as possible. As set forth above, captioning must be provided
within the first thirty (30) minutes of any "extended news coverage of an
emergency condition." Consistent with section 79.2 of the Commission's
rules, during any time that captioning is not immediately available to
caption the newscast or breaking news report, WINK will make the critical
details of the emergency information accessible by other visual means,
such as crawls, scrolls, or handwriting on a blackboard;
(d) The telephones used by the Station's general manager, news director,
program production manager and executive producers shall have speed
dialing capability and the direct dial telephone number of the Stations'
captioning service shall be programmed into the speed dialing function of
each such telephone;
(e) The Station will distribute, at least every six (6) months, the
Station's Emergency Visual Presentation Policy to all News Room and Master
Control employees;
(f) The Station will incorporate the Station's Emergency Visual
Presentation Policy into the Station's annual news employee training
session;
(g) FMBC shall consult with organizations representing deaf and hard of
hearing persons on a yearly basis as part of the ongoing assessment of how
the Station is meeting the needs of its hearing impaired viewers. These
consultations will include discussions of how the station can best serve
the needs of the hearing impaired viewers for emergency information; and
(h) Each year, on or before the commencement of the hurricane season, the
Station's management shall review with the Station's News Room and Master
Control staff Emergency Visual Presentation Policy procedures and
processes to ensure the Station is prepared to provide emergency
information to hearing impaired viewers.
11. In consideration for the termination of the Investigation, and in
accordance with the terms of this Consent Decree, FMBC will make a
voluntary contribution to the United States Treasury without further
protest or recourse to a trial de novo in the amount of twenty thousand
dollars ($20,000) within thirty (30) calendar days after the Effective
Date. FMBC must make this payment by check or similar instrument, payable
to the order of the Federal Communications Commission. The payment must
include the Acct. No. and FRN referenced above. Payment by check or money
order may be mailed to Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 358340 Pittsburgh,
Pennsylvania, 15251. Payment by overnight mail may be sent to Mellon
Client Service, 500 Ross Street, Room 670, Pittsburgh, PA, 15262-0001,
Atten: FCC Module Supervisor. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number 911-6229.
Please include your NAL/Acct No. with your wire transfer.
12. FMBC's decision to enter into this Consent Decree is expressly
contingent upon the Bureau's issuance of an Order that is consistent with
this Consent Decree, and which adopts the Consent Decree without change,
addition or modification.
13. FMBC waives any and all rights it may have to seek administrative or
judicial reconsideration, review, appeal or stay, or to otherwise
challenge or contest the validity of this Consent Decree and the Order,
provided the Bureau issues an Order adopting the Consent Decree without
change, addition or modification.
14. If any Party (or the United States on behalf of the FCC) brings a
judicial action to enforce the terms of the Order, neither FMBC nor the
FCC shall contest the continuing validity of the Consent Decree or Order.
FMBC and the Commission further agree that they will waive any statutory
right to a trial de novo with respect to any matter upon which the Order
is based (provided in each case that the Order is limited to adopting the
Consent Decree without change, addition, or modification), and that they
will consent to a judgment incorporating the terms of this Consent Decree.
15. In the event that this Consent Decree is rendered invalid by any court
of competent jurisdiction, this Consent Decree shall become null and void
and may not be used in any manner in any legal proceeding.
16. The Parties agree that if any provision of this Consent Decree
conflicts with any subsequent rule or order adopted by the Commission
(except an order specifically intended to revise the terms of this Consent
Decree to which FMBC does not consent), that provision will be superseded
by such Commission rule or order.
17. By this Consent Decree, FMBC does not waive or alter its right to
assert and seek protection from disclosure of any privileged or otherwise
confidential and protected documents and information, or to seek
appropriate safeguards of confidentiality for any competitively sensitive
or proprietary information.
18. The Parties agree that the requirements of this Consent Decree shall
expire thirty-six (36) months from the Effective Date.
19. This Consent Decree may be signed in counterparts and/or by telecopy
and, when so executed, the counterparts, taken together, will constitute a
legally binding and enforceable instrument whether executed by telecopy or
by original signatures.
For the Enforcement Bureau For Fort Myers Broadcasting Company
By: ______________________________ By: ______________________________
Kris Anne Monteith Gary Gardner
Chief Vice President
______________________________ ______________________________
Date Date
47 U.S.C. S 613.
47 C.F.R. S 79.2(b)(1)(i).
47 U.S.C. S 154(i).
47 C.F.R. SS 0.111, 0.311.
47 U.S.C. S 613.
47 C.F.R. S 79.2(b)(1)(i).
Federal Communications Commission DA 07-507
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Federal Communications Commission DA 07-507