**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | )  | File No. EB-04-TC-067        |
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| Channel 51 of San Diego, Inc.    | )  | Facility ID No. 10238        |
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| Licensee of KUSI-TV              | )  | NAL/Acct. No. 200532170007   |
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| San Diego, CA                    | )  | FRN: 0002965655              |
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| Apparent Liability for           | )  |                              |
| Forfeiture                       |    |                              |
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|                                  | )  |                              |
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> **NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: February 22, 2005 Released: February 23, 2005**

By the Chief, Enforcement Bureau:

####  INTRODUCTION

> 1\. In this Notice of Apparent Liability for Forfeiture ("NAL"),[^1]
> we find that Channel 51 of San Diego, Inc. ("Channel 51") 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] Channel 51 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 KUSI-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 Channel 51 apparently liable for a forfeiture in the amount of
> \$25,000.

# II. Background {#ii.-background .unnumbered}

2\. Channel 51 is the licensee of KUSI-TV[^4] and is a video programming
distributor as defined in our rules.[^5] As a video programming
distributor, Channel 51 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, Channel 51 broadcast emergency information
regarding the wildfires.

4\. After receiving a consumer complaint against KUSI-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 Channel 51's broadcasts on KUSI-TV that
week. We sent a Letter of Inquiry to Channel 51, directing Channel 51 to
provide, among other things, videotapes of Channel 51's coverage of the
wildfires on KUSI-TV.[^7] Channel 51 filed a response[^8] and
subsequently provided videotapes of its coverage.

5\. The Bureau has reviewed Channel 51's tapes of KUSI-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]

\(a\) At 6:58 a.m.[^10] and during the next seven minutes, reporter Dave
Ericson said that Route 67 was closed, the anchor said that Wildcat
Canyon Road was closed, and a representative of the San Diego County
Sheriff's department said that there were evacuations at Moreno Valley
and Eucalyptus Hills. Channel 51 did not provide closed captioning or
other visual presentation of any portion of this emergency information
until approximately 10:38 a.m., when it provided visual presentation of
some of the emergency information.[^11] The recorded footage that
Channel 51 provided of its broadcast does not show any visual
presentation of the remainder of this emergency information through at
least 12:17 p.m.,[^12] over five hours after the aural presentation.

\(b\) At approximately 8:14 a.m., reporter Dave Scott said that Scripps
Poway Parkway was closed. Channel 51 did not provide closed captioning
or other visual presentation of this emergency information through at
least 12:17 p.m., over four hours later.

\(c\) At approximately 9:12 a.m., the anchor said that there was an
evacuation center at Santana High School. Channel 51 did not provide
closed captioning or other visual presentation of this emergency
information through at least 12:17 p.m., over three hours later.

\(d\) At approximately 9:38 a.m., the anchor said that Routes 67, I-15,
and 163, Wildcat Canyon Road, Cole Grace Road, Lake Wohlford Road, and
Scripps Poway Parkway were closed. Channel 51 did not provide closed
captioning or other visual presentation of any portion of this emergency
information until 10:38 a.m., one hour later, at which time it provided
visual presentation for some of the emergency information, and did not
provide visual presentation of the remainder of the emergency
information through at least 12:17 p.m., over two hours later.

\(e\) At approximately 11:15 a.m. and during the next five minutes, the
anchor said that there were evacuations at Santo Road, Portobello Drive
and Antigua Boulevard in Tierrasanta to the Qualcomm Stadium parking
lot, and Councilman Mainschein said that there were evacuations from
Scripps Ranch to Mira Mesa High School. Channel 51 did not provide
closed captioning or other visual presentation of this emergency
information through at least 12:17 p.m., over an hour later.

**III. DISCUSSION**

6\. Section 713 of the Act requires the Commission to prescribe rules on
Video Programming Accessibility.[^13] 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.[^14] 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.[^15] Section 79.2 does not require closed captioning,[^16]
but allows for other methods of visual presentation, including, but not
limited to, open captioning, crawls, or scrolls.[^17] 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.[^18] 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."[^19] 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." [^20] 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,"[^21] 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,"[^22] not merely the existence of an emergency.[^23] 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."[^24] 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."[^25] The Commission has
several times reminded video programmers of their obligation to make
emergency information accessible.[^26]

8\. As an initial matter, we find that Channel 51 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...."[^27] As a broadcast licensee, Channel 51 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 Channel
51 over KUSI-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.[^28] 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.[^29]
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. Channel 51's own coverage of
the fires illustrates the urgency and danger of the situation. Channel
51 interrupted regular programming with full coverage of the wildfires.
Channel 51 anchors and reporters repeated emergency information many
times, emphasizing the number of persons injured, acres burned, and
houses destroyed. Channel 51 personnel characterized the fires as "hell
on earth" and "out of control," and noted that police cars were fleeing
from the dangerous areas. While Channel 51 visually presented some
information during this period, it appears that in numerous instances
Channel 51 did not make critical information available to persons with
hearing disabilities.

10\. The record shows that, in 22 separate instances from approximately
6:58 a.m. on October 26 to 8:41 p.m. on October 27, Channel 51 aurally
provided critical emergency information on areas to be evacuated, road
closures, shelters 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
evacuations, road closures, shelters, 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 Channel 51 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
apparent violations where Channel 51 provided closed captioning or other
visual presentation of emergency information, if at all, after a delay
of greater than 30 minutes after Channel 51 provided the same
information aurally (*i.e.*, those listed in the text and in Appendix
A). It is clear from these examples that Channel 51'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, Channel 51 argues
that the extent and amount of programming 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] Channel 51 contends 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 own 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
evacuations, road closures, shelters, 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 Channel 51 gave aural emergency
information on KUSI-TV 22 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, Channel 51
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 Channel 51 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. Channel 51 provided aural
emergency information without providing visual presentation on numerous
occasions, resulting in 22 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 22 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 \$25,000.
Channel 51 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 {#v.-conclusions-and-ordering-clauses .unnumbered}

#  16. **We have determined that Channel 51 of San Diego, 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 \$25,000.** {#we-have-determined-that-channel-51-of-san-diego-inc.-has-apparently-willfully-or-repeatedly-violated-section-713-of-the-act-and-section-79.2b1i-of-the-commissions-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-25000. .unnumbered}

#  {#section .unnumbered}

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 Channel 51 of
San Diego, Inc. IS HEREBY NOTIFIED of an Apparent Liability for
Forfeiture in the amount of \$25,000 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, Channel 51 of San Diego, 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, 8^th^ 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][^42]

22\. IT IS FURTHER ORDERED that copies of this Notice of Apparent
Liability for Forfeiture SHALL BE SENT by certified mail to Robert B.
Jacobi, Esq. Cohn & Marks, Suite 300, 1920 N Street, N.W., Washington,
D.C. 20036-1622, and Michael Dean McKinnon, Vice President, Broadcast
Operations and Programming, Channel 51 of San Diego, Inc., 4575
Viewridge Avenue, San Diego, CA 92123.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

**APPENDIX A**

> \(1\) At 6:58 a.m. and during the next seven minutes, reporter Dave
> Ericson said that Route 67 was closed, the anchor said that Wildcat
> Canyon Road was closed, and a representative of the San Diego County
> Sheriff's department said that there were evacuations at Moreno Valley
> and Eucalyptus Hills. Channel 51 did not provide closed captioning or
> other visual presentation of any portion of this emergency information
> until approximately 10:38 a.m., when it provided visual presentation
> of some of the emergency information, and did not provide visual
> presentation of the remainder of the emergency information through at
> least 12:17 p.m.[^43]

\(2\) At approximately 8:14 a.m., reporter Dave Scott said that Scripps
Poway Parkway was closed. Channel 51 did not provide closed captioning
or other visual presentation of this emergency information through at
least 12:17 p.m.

\(3\) At approximately 9:12 a.m., the anchor said that there was an
evacuation center at Santana High School. Channel 51 did not provide
closed captioning or other visual presentation of this emergency
information through at least 12:17 p.m.

\(4\) At approximately 9:38 a.m., the anchor said that Routes 67, I-15,
and 163, Wildcat Canyon Road, Cole Grace Road, Lake Wohlford Road, and
Scripps Poway Parkway were closed. Channel 51 did not provide closed
captioning or other visual presentation of any portion of this emergency
information until 10:38 a.m., one hour later, at which time it provided
visual presentation of some of the emergency information, and did not
provide visual presentation of the remainder of the emergency
information through at least 12:17 p.m.

\(5\) At approximately 11:15 a.m. and during the next five minutes, the
anchor said that there were evacuations at Santo Road, Portobello Drive
and Antigua Boulevard in Tierrasanta to the Qualcomm Stadium parking
lot, and Councilman Mainschein said that there were evacuations from
Scripps Ranch to Mira Mesa High School. Channel 51 did not provide
closed captioning or other visual presentation of this emergency
information through at least 12:17 p.m.

\(6\) At approximately 11:37 a.m.,[^44] the anchor said that there were
evacuations at Santo Road, Portobello Drive and Antigua Boulevard in
Tierrasanta. Channel 51 did not provide closed captioning or other
visual presentation of this emergency information through at least 12:17
p.m.

\(7\) At approximately 3:18 p.m., reporter John Soderman said that Route
163 was closed because of an airplane crash. Channel 51 did not provide
closed captioning or other visual presentation of this emergency
information until approximately 5:07 p.m.

\(8\) At approximately 3:41 p.m., the anchor said that there were
evacuations at Hidden Trails Road, Rancho San Pasqual and Cloverdale in
Escondido. Channel 51 did not provide closed captioning or other visual
presentation of this emergency information until approximately 10:21
p.m.

\(9\) At approximately 4:00 p.m., reporter Lina Lewis said that there
were evacuations on Mission Gorge Road. Channel 51 did not provide
closed captioning or other visual presentation of this emergency
information until approximately 5:00 p.m.

\(10\) At approximately 5:12 p.m., the San Diego Chief of Police said
there was a shelter at Mission Hills High School. Channel 51 did not
provide closed captioning or other visual presentation of this emergency
information through at least 12:11 a.m. the following day.

\(11\) At approximately 6:26 p.m., the anchor said that there were
evacuations in Chula Vista, Valley Center, Scripps Ranch and Ramona, and
that there were shelters at Bonita Vista High School, St. Peter's
Church, Mira Mesa High School, Poway Community Center, and Julian High
School. Channel 51 did not provide closed captioning or other visual
presentation of any portion of this emergency information until 7:27
p.m., when it provided visual presentation of some of the emergency
information, and did not provide visual presentation of the remainder of
this emergency information through at least 12:11 a.m. the following
day.

\(12\) At approximately 6:35 p.m., the anchor said there were
evacuations at Mission Gorge Road. Channel 51 did not provide closed
captioning or other visual presentation of this emergency information
until approximately 7:27 p.m.

\(13\) At approximately 7:30 p.m. and during the next five minutes,
reporter Don Curley and the anchor said there was a shelter at Qualcomm
Stadium. Channel 51 did not provide closed captioning or other visual
presentation of this emergency information until approximately 8:31 p.m.

\(14\) At approximately 9:54 p.m., the anchor said that Routes I-8,
I-15, 52, 163, 94, and 67 were closed. Channel 51 did not provide closed
captioning or other visual presentation of any portion of this emergency
information until 10:43 p.m., when it provided visual presentation of
some of the emergency information, and did not provide visual
presentation of the remainder of this information through at least 12:11
a.m. the following day.

\(15\) At 10:25 a.m.,[^45] reporter Steve Bosch advised viewers to
protect themselves from air pollution by staying indoors, avoiding
strenuous activity, and breathing through a damp cloth. Channel 51 did
not provide closed captioning or other visual presentation of this
emergency information through at least 12:43 p.m.

\(16\) At 10:46 a.m., Dr. Mark Pian advised viewers to protect their
children from air pollution by keeping them inside, having them
participate in quiet activities to avoid breathing, and making sure they
take their medications. Channel 51 did not provide closed captioning or
other visual presentation of this emergency information through at least
12:43 p.m.

\(17\) At 11:13 a.m., a representative of the American Lung Association
advised viewers to stay inside, avoid exercise, use an air conditioner,
and replace their filter. Channel 51 did not provide closed captioning
or other visual presentation of this emergency information through at
least 12:43 p.m.

\(18\) At approximately 5:15 p.m. and within five minutes thereafter,
the Sheriff of San Diego County said that there were evacuations in
Julian, Ramona, Rancho Jamul, Eucalyptus Hills, Valley Center, Lake
Wohlford, Oakdale, and Rincon Reservation, and the County Supervisor
told residents of East County, Crest, Shadow Mountain, and Blossom
Valley to boil or disinfect their water. Channel 51 did not provide
closed captioning or other visual presentation of this emergency
information through at least 7:30 p.m.

\(19\) At approximately 5:38 p.m., the anchor said there were
evacuations in Ramona, Julian, Rincon Reservation, Valley Center, and
San Diego Country Estates. Channel 51 did not provide closed captioning
or other visual presentation of this emergency information through at
least 7:30 p.m.

\(20\) At approximately 6:04 p.m., the anchor said that those sheltered
at Qualcomm Stadium should go to Balboa Park and YMCA shelters. Channel
51 did not provide closed captioning or other visual presentation of
this emergency information through at least 7:30 p.m.

\(21\) At approximately 6:34 p.m., the anchor said that residents
evacuated from Pine Hills should go to Julian High School. Channel 51
did not provide closed captioning or other visual presentation of this
emergency information through at least 7:30 p.m.

\(22\) At approximately 8:41 p.m., the American Lung Association
representative advised residents to stay indoors with the windows
closed, to replace their air filters, to hold wet handkerchiefs around
their noses and mouths and breathe through their noses. Channel 51 did
not provide closed captioning or other visual presentation of this
emergency information through at least 9:40 p.m.

[^1]: *See* 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).

[^2]: 47 U.S.C. § 613.

[^3]: 47 C.F.R. § 79.2(b)(1)(i).

[^4]: Letter from Robert B. Jacobi, counsel for Channel 51, to Peter G.
    Wolfe, Senior Attorney, FCC (July 9, 2004) ("Response"), Affidavit
    of Michael Dean McKinnon.

[^5]: 47 C.F.R. § 79.1(a)(2).

[^6]: 47 C.F.R. § 79.2(b)(1)(i).

[^7]: Letter from Colleen K. Heitkamp, Chief, Telecommunications
    Consumers Division, Enforcement Bureau, FCC, to Michael D. McKinnon,
    Vice President and Station Manager, KUSI News (May 26, 2004)
    ("Letter of Inquiry").

[^8]: Response, filed July 9, 2004.

[^9]: The specific instances listed here and in Appendix A, all of which
    demonstrate Channel 51's apparent failure to provide visual access
    to emergency information, form the basis of this NAL.

[^10]: The examples described in the text all occurred on October 26,
    2003.

[^11]: Because Channel 51's tapes do not always indicate the time of
    coverage and Channel 51's tape labels do not accurately indicate the
    actual coverage on the tape, we sometimes drew conclusions about the
    times and dates of coverage based on the coverage itself. For
    example, on the initial videotape, which is labeled 7:00 a.m. to
    9:00 a.m., the time register started at 7:58 a.m., is turned off
    after 8:03 a.m., and then went on again in approximately twenty
    minutes but showed the time as 7:24 a.m. Given these glitches, we
    conclude that the tape actually started at 6:58 a.m. More generally,
    where Channel 51's coverage did not provide times, we timed the
    videotapes starting from the point the tape was labeled, or, when
    the time stopped in the middle of a videotape, the time when the
    time register went off. Of course, these times are approximate. Most
    important here is the amount of time that elapsed between the time
    Channel 51 provided emergency information aurally and the time it
    presented it visually, if at all. *See* para. 11, *infra.*

[^12]: Channel 51 did not provide videotape of all its wildfire coverage
    on October 26 and 27. *See* Response at 2 ("we no longer have all
    the footage from the fires...."). Specifically, Channel 51 did not
    provide any videotapes for October 26, 2003 between 12:17 p.m. and
    3:13 p.m., on October 27, 2003 before 10:00 a.m., between 12:43 p.m.
    and 3:00 p.m., between 7:30 p.m. and 8:10 p.m., and after 9:40 p.m.
    Consequently, we cannot determine whether Channel 51, during these
    gaps of time, visually presented emergency information that it had
    previously aurally presented. In our description of such cases, we
    note that Channel 51 did not make the emergency information
    accessible through at least the beginning of the missing coverage.

[^13]: 47 U.S.C § 613.

[^14]: *Closed 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*").

[^15]: 47 C.F.R. § 79.2(b)(1)(i).

[^16]: *Second Report and Order*, 15 FCC Rcd at 6620, para. 11.

[^17]: *Id.* at 6618, para. 8.

[^18]: *Id.* at 6621, para. 11.

[^19]: *Id.* at 6623-24, para. 16.

[^20]: *Id.* 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.

[^21]: 47 C.F.R. § 79.2(a)(2).

[^22]: *Id.*

[^23]: *Second Report and Order*, 15 FCC Rcd at 6617, para. 5.

[^24]: *Id.* (emphasis added).

[^25]: Note to 47 C.F.R. § 79.2(a)(2) (emphasis added).

[^26]: *See, 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
    Obligations to Make Emergency Information Accessible to Persons with
    Hearing or Vision Disabilities," 19 FCC Rcd 9882 (May 24, 2004).

[^27]: 47 C.F.R. § 79.1(a)(2).

[^28]: *See, e.g.,* KUSI 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.

[^29]: KUSI Videotapes.

[^30]: 47 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).

[^31]: *Id.*

[^32]: *Id.*

[^33]: Response at 2.

[^34]: *Second 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.

[^35]: 47 C.F.R. § 79.2(b)(1)(i) (emphasis added).

[^36]: Specifically, 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).

[^37]: *See* 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).

[^38]: *See* 47 C.F.R. § 1.80(b)(4).

[^39]: *See* 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3).

[^40]: If Channel 51 chooses to respond, it should mail its response to
    Colleen Heitkamp, Chief, Telecommunications Consumers Division,
    Enforcement Bureau, Federal Communications Commission, 445 12^th^
    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]: ^.^

[^42]: 7 C.F.R. § 1.1914.

[^43]: *See* n.12.

[^44]: Examples 1-14 occurred on October 26, 2003.

[^45]: Examples 15-22 occurred on October 27, 2003.