*Pages 1--6 from Microsoft Word - 43244.doc* Federal Communications Commission DA 04- 3274 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of COMCAST CORPORATION Operator of Cable Television Systems in Numerous Communities ) ) ) ) ) ) NAL/ Acct. No. 200532080004 File No. EB- 03- IH- 0558 FRN No. 0006329247 ORDER Adopted: October 21, 2004 Released: October 22, 2004 By the Chief, Enforcement Bureau: 1. As a result of the Commission’s receipt of a complaint jointly filed on November 26, 2003, by the Communications Workers of America and the International Brotherhood of Electrical Workers (the “Complaint”), the Enforcement Bureau has been investigating whether Comcast Corporation (“ Comcast”), which operates various cable television systems through subsidiary entities, may have willfully and repeatedly violated the requirements of the cable public inspection file rules, 47 C. F. R. §§ 76. 1700 et seq. 2. The Bureau and Comcast have negotiated the terms of a Consent Decree, a copy of which is attached hereto and incorporated by reference. After reviewing the terms of the Consent Decree, we find that the public interest would be served by approving the Consent Decree and terminating the captioned investigation. We also conclude that, in the absence of material new information not previously disclosed to the Bureau, the matters raised in the investigation do not raise any substantial and material questions of fact regarding Comcast's qualifications to be a Commission licensee. 3 Accordingly, IT IS ORDERED, pursuant to Section 4( i) of the Communications Act of 1934, as amended, 1 that the attached Consent Decree IS ADOPTED. 4. IT IS FURTHER ORDERED that the above- captioned investigation involving Comcast IS TERMINATED, and that the Complaint and all related filings ARE DISMISSED WITH PREJUDICE. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau 1 47 U. S. C. § 154( i). 1 Federal Communications Commission DA 04- 3274 2 CONSENT DECREE 1. The Enforcement Bureau of the Federal Communications Commission and Comcast Corporation hereby enter into this Consent Decree for the purpose of resolving and terminating an investigation currently being conducted by the Enforcement Bureau regarding alleged violations by Comcast of the Cable Public File Rule, as defined herein. 2. For purposes of this Consent Decree, the following definitions shall apply: (a) “Act” means the Communications Act of 1934, as amended, 47 U. S. C. § 151 et seq. (b) “Adopting Order” means an order of the Bureau adopting this Consent Decree, without any modifications adverse to Comcast. (c) “Any” shall be construed to include the word “all,” and the word “all” shall be construed to include the word “any.” Additionally, the word “or” shall be construed to include the word “and,” and the word “and” shall be construed to include the word “or.” The word “each” shall be construed to include the word “every,” and the word “every” shall be construed to include the word “each.” (d) “Bureau” means the FCC's Enforcement Bureau. (e) “Cable Operator” has the definition contained in 47 U. S. C. § 522( 5). (f) “Cable Public File Rule” refers to the provisions of 47 C. F. R. § 76. 1700 et seq., which require that an operator of a cable television system having more than one thousand subscribers maintain for public inspection a file containing certain records. (g) “Commission” or “FCC” means the Federal Communications Commission. (h) “Comcast” means Comcast Corporation and its direct and indirect subsidiaries that are Cable Operators. (i) “Complaint” means the November 26, 2003, joint complaint filed with the Commission by the Communications Workers of America and the International Brotherhood of Electrical Workers. (j) “Complainants” means the Communications Workers of America and the International Brotherhood of Electrical Workers. (k) “Effective Date” means the date on which the Bureau releases the Adopting Order. (l) “Final Order” means that, with respect to the Adopting Order: (1) no request for stay or similar request is pending, no stay is in effect, the Adopting Order has not been vacated, reversed, set aside, annulled or suspended, and any deadline for filing such request that may be designated by statute or regulation has passed; (2) no timely petition for rehearing or reconsideration of the Adopting Order, or protest of any kind, is pending before the FCC and the time for filing any such petition or protest is passed; (3) the FCC does not have the Adopting Order under reconsideration or review on its own motion and the time for such reconsideration or review has passed; and (4) the Adopting Order is not then under judicial review, there is no notice of appeal or other application for judicial review pending, and the deadline for filing such notice of appeal or other application for judicial review has passed. (m) “Investigation” means the Bureau’s investigation, in its File No. EB- 03- IH- 0558, of violations alleged in the Complaint that resulted in letters of inquiry being sent by the Bureau to Comcast on December 5, 2003, and May 27 and August 13, 2004. (n) “Parties” means the Bureau and Comcast collectively, and “Party” refers to the Bureau and Comcast, individually. 2 Federal Communications Commission DA 04- 3274 3 I. BACKGROUND 3. On November 26, 2003, Complainants filed their Complaint with the Commission. The Complaint stated that the Complainants are labor organizations that represent about 2000 Comcast employees and that their members are also consumers of cable services. The Complaint reported that, on October 29, 2003, Complainants' representatives visited 225 separate Comcast offices and requested to inspect public files and allegedly found violations of the Cable Public File Rule in numerous offices. 4. On December 5, the Bureau directed Comcast to address the allegations contained in the Complaint. Comcast filed its response on December 22, to which the Complainants filed a reply on January 20, 2004. After reviewing Comcast's response and the Complainants' reply, the Bureau issued a letter of inquiry to Comcast on May 27, to which Comcast responded on July 6. On August 13, the Bureau issued a supplemental letter of inquiry, to which Comcast responded on August 25. 5. In its responses to the Complaint and to the Bureau's inquiries, Comcast maintained that, in the vast majority of situations cited by the Complainants, Comcast had complied with the Cable Public File Rule. In particular, Comcast contended that the rule does not require that a public file be maintained at every office, or in every community, but instead requires that a public file be maintained at only one location per "system." Comcast represented that, in several markets, local personnel had consolidated the public inspection files of a number of cable systems in the company's principal administrative offices located outside of the service areas of the systems. Comcast also stated that, in some cases, the system file documenting political ad sales was maintained at the location where advertising sales were made rather than where the remainder of the system public file was situated. Comcast also represented that, in a small number of cases, it did not make its system public files accessible to Complainants' representatives on October 29, 2003 as promptly as they should have been. Comcast fully reported these circumstances in its responses to the Bureau. 6. The Parties acknowledge that a consent decree to address the matters that are the subject of the Investigation is in the public interest. The Parties agree that continuation of the Investigation and any further proceedings will be time- consuming and will require substantial expenditure of public and private resources. In order to conserve such resources, to resolve the Investigation, and to promote Comcast’s future compliance with the Cable Public File Rule, the Parties are entering into this Consent Decree, in consideration of the mutual commitments made herein. II. AGREEMENT 7. The Parties agree that the provisions of this Consent Decree shall be subject to approval by the Bureau by incorporation of such provisions by reference in an Adopting Order. 8. The Parties agree that this Consent Decree shall become effective on the Effective Date and shall remain in effect for three (3) years thereafter. Upon release, the Adopting Order and this Consent Decree shall have the same force and effect as any other orders of the Bureau and any violation of the terms of this Consent Decree shall constitute a violation of a Commission order, entitling the Commission or the Bureau, pursuant to delegated authority, to exercise any rights and remedies attendant to the enforcement of a Commission order. 9. As part of the Adopting Order, the Bureau shall terminate the Investigation and dismiss the Complaint and all related filings. From and after the Effective Date, in the absence of the discovery of material new information not previously disclosed to the Bureau, the Bureau shall not, either on its own motion or in response to any petition, third- party objection, complaint, or other information, initiate any inquiries, investigations, forfeiture proceedings, hearings, or other actions, formal or informal, against Comcast for alleged violations of the Cable Public File Rule prior to the Effective Date. The Bureau shall 3 Federal Communications Commission DA 04- 3274 4 not use the underlying facts or conduct relating to any of the foregoing prior to the Effective Date for any purpose relating to Comcast, and shall treat all such matters as null and void for all purposes. 10. Comcast represents that, in addition to its existing policies and procedures, it has adopted, is currently in the process of implementing, and agrees to abide by a compliance plan (the “Compliance Plan”) for the purpose of ensuring compliance with the Cable Public File Rule, which is set forth in the Appendix attached hereto. Comcast agrees, to the extent it has not already done so, to implement this Compliance Plan no later than thirty (30) days after the Effective Date and to keep such Compliance Plan in effect, where applicable, for three (3) years after the Effective Date. Comcast reserves the right to revise the Plan from time to time, provided that the Bureau shall be given not less than thirty (30) days advance written notice of any material revisions to the plan. 11. Within five (5) business days after the Adopting Order becomes a Final Order, Comcast shall make a voluntary contribution (not a forfeiture or a penalty) to the United States Treasury in the amount of Two Hundred Twenty- Five Thousand Dollars ($ 225,000. 00). The payment must be made by check or similar instrument, payable to the order of the Federal Communications Commission. The payment must include Acct. No. 200532080004 and FRN No. 0006329247. Payment by check or money order may be mailed to Forfeiture Collection Section, Finance Branch, Federal Communications Commission, P. O. Box 73482, Chicago, Illinois 60673- 7482. Payment by overnight mail may be sent to Bank One/ LB 73482, 525 West Monroe, 8th Floor Mailroom, Chicago, Illinois 60661. Payment by wire transfer may be made to ABA Number 071000013, receiving bank Bank One, and account number 1165259. With the exception, pursuant to Paragraph 8 hereof, of any action taken as the result of the Bureau’s discovery of material new information not previously disclosed to it, the Bureau agrees not to seek any further voluntary or involuntary contributions or payments from Comcast to the United States Treasury for alleged violations of the Cable Public File Rule prior to the Effective Date. Comcast’s decision to enter into this Consent Decree is expressly contingent upon the issuance of an Adopting Order by the Bureau which adopts this Consent Decree without change, addition or modification. 12. Comcast 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 Adopting Order, provided no modifications are made to the Consent Decree materially adverse to Comcast prior to the Effective Date. If the Bureau, the Commission, or the United States acting on its behalf, brings a judicial action to enforce the terms of the Adopting Order or this Consent Decree, or both, Comcast will not contest the validity of this Consent Decree or of the Adopting Order. If Comcast brings a judicial action to enforce the terms of the Adopting Order or this Consent Decree, or both, neither the Bureau, the Commission nor the United States will contest the validity of this Consent Decree or of the Adopting Order. Comcast retains the right to challenge the Bureau or the Commission’s interpretation of this Consent Decree or interpretation of any terms contained therein. Nothing herein shall restrict Comcast from challenging on any basis, any future enforcement action relating to the Cable Public File Rule, except as otherwise provided herein. 13. The Parties agree that this Consent Decree does not constitute either an adjudication on the merits or a factual or legal determination regarding any compliance or noncompliance by Comcast with the requirements of the Act or the Cable Public File Rule prior to the Effective Date. The Parties agree that this Consent Decree and Comcast’s voluntary contribution are for settlement purposes only and that, by agreeing to this Consent Decree, Comcast does not admit or deny any wrongdoing, non-compliance or violation of the Act or the Public File Rule in connection with the matters that are the subject of this Consent Decree. 14. In the event that this Consent Decree is rendered invalid in any court of competent jurisdiction, it shall become null and void and may not be used in any manner in any legal proceeding. 4 Federal Communications Commission DA 04- 3274 5 15. Comcast hereby agrees to waive any claims it may otherwise have under the Equal Access to Justice Act, 5 U. S. C. § 504 and 47 C. F. R. § 1.1501 et seq., relating to the matters addressed in this Consent Decree. 16. Each Party represents and warrants to the other that it has full power and authority to enter into this Consent Decree. 17. This Consent Decree may be executed in counterparts. FEDERAL COMMUNICATIONS COMMISSION ENFORCEMENT BUREAU By: _________________________________________ David H. Solomon, Chief Date: ________________________________ COMCAST CORPORATION By: _________________________________________ Arthur R. Block, Senior Vice President and General Counsel Date: _________________________________ 5 Federal Communications Commission DA 04- 3274 6 APPENDIX COMCAST CORPORATION COMPLIANCE PLAN Within thirty (30) days of the Effective Date, except as otherwise noted below, Comcast will review all public inspection file procedures and personnel training practices and will modify and implement them as appropriate to ensure that the public inspection file for each Comcast technically integrated cable system will be complete, up- to- date, and promptly available to the public during normal business operations at a location within the geographic area served by that system. In particular, Comcast will complete and implement the following measures within that timeframe to ensure future compliance with the Commission’s Cable Public File Rule: (a) Compliance Manual: Comcast will revise its Compliance Manual to include the following information: Employee Training, Instruction Cards, Delegations of Authority, Consumer Information and Review and Monitoring. (b) Employee Training: Comcast will develop and conduct Public File Awareness Training regarding public inspection file locations and access procedures for employees working at Comcast offices who have on- site customer contact such as receptionists and front counter personnel. Comcast will also train several employees at each public inspection file location on public inspection file maintenance and public file access procedures, Public File Awareness Training and training on public inspection file maintenance and access procedures will be completed within ninety (90) days of the Effective Date. New or transferred employees in these positions will undergo such training within thirty (30) days of their commencement of work at the position. (c) Instruction Cards: To ensure consistent and timely access to the public inspection files, Comcast will provide all employees who have customer contact at each public inspection file location with an instruction card to advise them about public inspection file access procedures. Comcast will also provide employees at other Comcast system offices who have customer contact with a card providing the address of and directions to the location within the system at which the file is maintained. (d) Delegations of Authority: In addition to the aforementioned training programs, each Comcast Division will implement a program for its systems to ensure familiarity with Comcast Policies and FCC Regulations governing public inspection files. Comcast will designate a Public Inspection File Coordinator for each Division who will coordinate the training and oversee the public file activities of all Comcast employees having public inspection file responsibilities within the Division. (e) Consumer Information: Comcast will maintain a sign which is in conspicuous public view at all offices serving the public identifying the location of the Public Inspection File for each system as of the Effective Date. Within sixty (60) days of the Effective Date, Comcast will also post the locations of all Public Inspection Files at its company webpage at www. Comcast. com. As soon as practicable, but in no event later than one hundred twenty (120) days of the Effective Date, Comcast will also notify each customer in writing of the location of the public inspection file of the customer’s system and will do so annually thereafter. (f) Review and Monitoring: To ensure that these policies are implemented and maintained, Comcast will augment its existing internal audit program to provide for at least one Public Inspection File audit per year by each system’s Divisional safety contact and a monthly inspection by each system's Public Inspection File administrator. 6