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