February 4, 2010 Via Facsimile (1-866-418-0232) and First Class Mail Hilary S. De Nigro, Esq.

, Chief Investigations and Hearings Division Enforcement Bureau Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 Re: Request for Investigation of Chesapeake Television Licensee and Robert Ehrlich, Jr., for Violations of Section 317(a) of the Communications Act and Sections 73.1212(a) & (d) of Commission Regulations by the Licensee Dear Ms. De Nigro: The Maryland Democratic Party respectfully requests the Commission to investigate violations of the “payola rules” by Chesapeake Television Licensee, LLC and Robert L. Ehrlich, Jr. These rules include section 317(a) of the Communications Act and sections 73.1212(a) & (d) of the Commission’s regulations. As explained in more detail below, former Maryland Governor Robert Ehrlich was paid to promote the position of one of his clients, the Cordish Company, on a highly controversial issue in Maryland: the awarding of a license for a slots machine facility. Mr. Ehrlich promoted that position in the course of a broadcast program on which he regularly appears on WBFF-Fox 45 TV, in Baltimore, Maryland. However, there was no disclosure at all to viewers, either by Mr. Ehrlich or by the station, of the payment made to Mr. Ehrlich to promote his client’s position in the broadcast.

Factual Background Mr. Ehrlich served as the Governor of Maryland from January 2003 through January 2007. He currently is an attorney in private practice with the Baltimore, Maryland office of the law firm Womble Carlyle Sandridge & Rice, PLLLC, 250 West Pratt Street, Suite 1300, Baltimore, MD 21201. Since 2009, Mr. Ehrlich has appeared regularly as a featured commentator in a news segment called “Political Pulse,” broadcast weekly by WBFF-Fox 45 TV in Baltimore, Maryland.

The licensee of WBFF is Chesapeake Licensee LLC, Facility ID No. 10758. In 2008, the voters of Maryland approved a constitutional amendment to allow the granting of licenses in certain locations for video gaming terminals, an electronic version of what were traditionally known as “slot machines.” During his tenure as Governor, Mr. Ehrlich had vigorously supported the legalization of slot machines in Maryland. After the constitutional amendment was adopted, several companies applied to the State for licenses to operate slot machine facilities. One of the applicants is Cordish Company, which applied to develop such a facility near the Arundel Mills Mall shopping center in Anne Arundel County, Maryland. A competing application was submitted by the owner of several racetracks in Maryland, including one in the same county. The competing application was initially not considered because the applicant did not deposit the required fees. The question of which applicant should receive the license, if any, became highly controversial during 2009, throughout Maryland, but particularly in Anne Arundel County which is within the Baltimore media market served by WBFF. Zoning for the Arundel Mills Mall site was approved by the County Council but a citizens group, with the support of the racetrack operator, is currently circulating petitions to put that action to a referendum of the voters. According to an article in the Baltimore Sun of March 25, 2009, entitled “Team Ehrlich a Surprising Slots Ally,” the Cordish Company hired former Governor Ehrlich and his colleagues at Womble Carlyle to promote and advocate for the company’s application and plan to develop a slots facility near Arundel Mills Mall. The head of Cordish Company confirmed, in the article, that former Governor Ehrlich’s communications director, Paul Schurick, also an employee of the law firm, had been hired to help promote the plan. On his regularly scheduled segment on the “Political Pulse” program, broadcast by WBFF-TV on or about April 3, 2009, former Governor Ehrlich explicitly promoted the Cordish application and plan, saying, “We have one applicant, Cordish obviously, that followed the law, that dotted their i’s, crossed their t’s and Magna [the competing applicant] did not, which is why they are now the lone applicant in Anne Arundel County.” A disc with a digital file of the broadcast is included with the mailed original of this letter.

At no point during the broadcast, or at any other time, did Mr. Ehrlich or the station disclose to viewers that Cordish Companies had paid his law firm to promote their position on this very issue. Apparent Violation Section 317(a) (1) of the Communications Act of 1934 as amended, provides that, “All matter broadcast by any ... station for which any money, service or other valuable consideration is directly or indirectly paid or promised to or charged or accepted by, the station so broadcasting, from any person shall, at the time the same is so broadcast, be announced as paid for…by such person….” In other words, when someone is paid to include specific material in a broadcast, that fact must be disclosed by that person to the station and the station must disclose it to viewers. “The Commission has noted that the sponsorship identification rules are “grounded in the principle that listeners and viewers are entitled to know who seeks to persuade them’ and warned that it would take enforcement action against broadcast stations and cable operators that did not comply with its rules.” In the Matter of Sonshine Family Television, Inc., 22 F.C.C.R. 18686 ¶4 (Oct. 18, 2007). In addition, section 73.1212(d) of the Commission’s rules provides that, in the “case of... any broadcast matter involving the discussion of a controversial issue of public importance for which any...talent…or other material or service of any kind is furnished, either directly or indirectly, to a station as an inducement for broadcasting such matter,” an announcement must be made at the beginning or the conclusion of the broadcast. “[P]articularly in the case of such programming, audience members are ‘entitled to know when the program ends and the advertisement begins.’” In the Matter of Sonshine Family Television, supra ¶5. The Commission recently applied these provisions to the broadcast by a licensee of a program prepared by Armstrong Williams and his production company which included discussion by Williams of the federal “No Child Left Behind” program, a program Williams had been paid, by the U.S. Department of Education, to promote in broadcast programming. In the Matter of Sonshine Family Television, supra. The Commission found that the provision of partisan material on a controversial issue by Williams to the station, for which Williams had been paid, and its broadcast by the station without the proper sponsorship identification, violated the Act and the Commission’s rule, specifically, section 73.1212(d) pertaining to program material furnished for use involving discussion of a controversial issue of public importance. Id. ¶¶7, 8, 17. It is clear that Governor Ehrlich was obligated to inform the station of the fact that he was being paid to promote the position of the Cordish Company and that the station was obligated to disclose that fact to its viewers. As the Consumer and Governmental Affairs Bureau has explained on the Commission’s website, the Act and the Commission rules “require that…Any person involved in the ...preparation of a program who receives or agrees to receive…payment

for the airing of program material, must disclose the information prior to the airing of the program. Broadcast licensees must make reasonable efforts to obtain from their employees and others they deal with for program material the information necessary to make the required sponsorship identification announcements.” The FCC’s Payola Rules, www.fcc.gov/cgb/consumerfacts/PayolaRules.html.

CONCLUSION For the reasons set forth above, the Maryland Democratic Party respectfully requests the Commission to conduct an investigation of Chesapeake Television Licensee and former Governor Ehrlich for violations by the licensee of the “payola rules,” section 317(a) of the Communications Act and sections 73.1212(a) & (d) of the Commission’s regulations. If your staff has any questions or needs further information concerning the above, please let me know. Thank you for your time and attention to this important matter.

Sincerely yours,

Susan W. Turnbull, Chair

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