Company Name: Fisher Communications, Inc.
Public Availability Date: December 19, 2007
Document Sections:
INQUIRY LETTER
INQUIRY LETTER
APPENDIX
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
November 29, 2007
VIA OVERNIGHT COURIER
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street N.E.
Washington, D.C. 20549
Re: Shareholder Proposal Submitted by GAMCO Asset Management Inc. for Inclusion
in the Fisher Communications, Inc. 2008 Proxy Statement
Dear Sir or Madam:
We are counsel to Fisher Communications, Inc., a Washington corporation (the
"Company"). On November 26, 2007, the Company received a shareholder proposal
and supporting statement (together, the "Proposal") from GAMCO Asset Management
Inc. (the "Proponent") for inclusion in the proxy statement to be distributed to
the Company's shareholders in connection with its 2008 Annual Meeting of
Shareholders (the "2008 Proxy Statement").
The purpose of this letter is to notify the Securities and Exchange Commission
(the "Commission") of the Company's intent to exclude the Proposal from the 2008
Proxy Statement. The Proposal is being excluded from the 2008 Proxy Statement
because it was not submitted within the time period specified by the Company in
accordance with Commission Rule ("Rule") 14a-8(c) under the Securities Exchange
Act of 1934, as amended.
Rule 14a-8(e)(2) states that a shareholder proposal "must be received at the
company's principal executive offices not less than 120 calendar days before the
date of the company's proxy statement released to shareholders in connection
with the previous year's annual meeting" for such submission to be deemed timely
filed for Rule 14a-8 purposes. (Emphasis added.) Consistent with the
requirements of Rule 14a-8(e)(2), the November 24, 2007 deadline referenced in
the Company's proxy statement for its 2007 Annual Meeting of Shareholders (the
"2007 Proxy Statement") is 120 calendar days before the date of the Company's
proxy statement released to shareholders in connection with the previous year's
annual meeting. The November 24, 2007 deadline remains effective because the
Company intends to hold the 2008 Annual Meeting of Shareholders not more than 30
days from the date of the previous year's meeting.
The Proposal and the accompanying letter from Mr. Peter D. Goldstein, the
Proponent's Director of Regulatory Affairs ("Mr. Goldstein"), dated November 21,
2007, were received by the Company on November 26, 2007, two days after the
November 24, 2007 deadline calculated pursuant to Rule 14a-8(e) and disclosed in
the 2007 Proxy Statement. The Proponent sent the Proposal via DHL (DHL tracking
number: 65484251140). Entering the tracking number on the DHL website confirms
conclusively that the item was not delivered until November 26, 2007 at 9:31
a.m. A copy of the delivery confirmation is attached to this letter as Exhibit
A.
The Commission staff has strictly construed the deadline for receipt of
shareholder proposals under Rule 14a-8(e), and has consistently permitted
companies to omit from proxy materials those proposals received after the
deadline without inquiring as to the reason for failure to meet the deadline,
even in cases where the proposals were only one or two days late. See, e.g.,
Smithfield Foods Inc. (June 4, 2007); International Business Machines Corp.
(Dec. 5, 2006); JPMorgan Chase & Co. (Feb. 8, 2005); American Express Co. (Dec.
21, 2004); Hewlett-Packard Co. (Jan. 24, 2003). The burden is on the shareholder
to ensure that the proposal is received by the company by the required deadline.
For the reasons outlined above, the Company believes that the Proposal does not
meet the timeliness requirements of Rule 14a-8(e)(2) and may be omitted from the
2008 Proxy Statement. The Company respectfully requests that the Commission
staff confirm that it will not recommend any enforcement action if the Proposal
is excluded from the 2008 Proxy Statement.
In accordance with Rule 14a-8(j), the Company hereby files six copies of this
letter and the Proposal, which is attached to this letter as Exhibit B. The
Company presently intends to file its definitive proxy materials on or about
March 21, 2008. Accordingly, pursuant to Rule 14a-8(j), this letter is being
submitted not less than 80 calendar days before the Company will file its
definitive 2008 Proxy Statement with the Commission. Rule 14a-8(f) requires that
a company notify a proposing shareholder of any deficiencies in the proposal
within 14 days of receipt. However, this requirement does not apply to a
deficiency that cannot be remedied, such as when the proponent fails to submit a
proposal by the company's properly determined deadline.
Also, in accordance with Rule 14a-8(j), the Company is simultaneously forwarding
via overnight courier a copy of this letter and its attachments to Mr. Goldstein
as notice to the Proponent of the Company's intention to exclude the Proposal
from the 2008 Proxy Statement.
Please acknowledge receipt of this letter and its enclosures by stamping the
enclosed copy of this letter and returning it to me in the enclosed envelope. In
the event that the Commission staff disagrees with the Company's course of
action, the Company would appreciate the opportunity to confer with the staff
before it issues a response to this letter. Please do not hesitate to call me at
(206) 359-8577.
Very truly yours,
/s/
Andrew Bor
Enclosures
cc: Peter D. Goldstein, GAMCO Asset Management Inc.
S. Mae Fujita Numata, Fisher Communications, Inc.
[INQUIRY LETTER]
November 21, 2007
Via Overnight Delivery
S. Mae Fujita Numata
Senior Vice President, Chief Financial Officer and Corporate Secretary
Fisher Communications, Inc.
100 4\th/ Avenue North
Suite 510
Seattle, WA 98109
Re: Shareholder Proposal
Dear Ms. Numata:
I am enclosing on behalf of GAMCO Asset Management Inc. ("GAMCO") a shareholder
proposal and supporting statement. Under Rule 14a-8 of the Securities Exchange
Act of 1934, I am requesting that Fisher Communications, Inc. ("Fisher") include
the proposal in its proxy statement for the 2008 annual meeting. GAMCO is
proposing that shareholders be asked to vote on a resolution that the By-Laws of
Fisher be amended to provide that any decision by Fisher to engage in a
transaction, either through acquisition of assets, stock or otherwise, by which
Fisher would acquire an operating business, and for which the consideration paid
by Fisher would exceed $25 million, requires a majority vote of the
shareholders, and that, the amended by-law thereafter may only be amended or
repealed by a majority vote of Fisher's shareholders.
Currently, GAMCO beneficially owns approximately 1,029,449 shares of Fisher
common stock. GAMCO has continuously held at least $2,000 in market value or 1%
of the outstanding common stock of Fisher entitled to vote on this proposal at
the meeting for at least one year as of the date hereof. Attached as Exhibit A
are Amendments 13 through 17 to the Schedule 13D filed on behalf of GAMCO. These
amendments will substantiate that GAMCO has been the beneficial owner of at
least $2,000 in market value or 1% of the outstanding common stock of Fisher
since October 3, 2006. These and all other amendments to the Schedule 13D of
GAMCO are readily available in the EDGAR database on the web site of the
Securities and Exchange Commission, www.sec.gov. Moreover, copies have been
provided to you when these filings have been made by GAMCO.
I have enclosed an affidavit on behalf of GAMCO. It attests that GAMCO has been
a beneficial owner of at least $2,000 in market value or 1% of the outstanding
common stock from October 3, 2006, to the present. It also attests that GAMCO
intends to continue beneficial ownership of such securities through the date on
which Fisher holds its 2008 annual meeting.
We appreciate your consideration of this request. If you require any additional
information, please do not hesitate to contact me.
Sincerely,
/s/
Peter D. Goldstein
Director of Regulatory Affairs
Enclosures
[APPENDIX]
SHAREHOLDER PROPOSAL
RESOLVED: That the By-Laws of Fisher Communications, Inc. (the "Company") be
amended to provide that any decision by the Company to engage in a transaction,
either through acquisition of assets, stock or otherwise, by which the Company
would acquire an operating business, and for which the consideration paid by the
Company would exceed $25 million, requires a majority vote of the Company's
shareholders, and that, the amended by-law thereafter may only be amended or
repealed by a majority vote of the Company's shareholders.
SUPPORTING STATEMENT
It has been our belief for a number of years, and it continues to be our belief,
that the Company's stock is worth substantially more than its market price.
Based on our internal analysis, we believe that the private market value of the
Company's properties is substantially higher than the current market price, and
that the shareholders should be receiving much more value than they have been
receiving.
Management's actions to date have not narrowed the gap between the private value
of the Company and its public market price. Instead, untimely and costly
acquisitions have diluted earnings and scriously limited the Company's financial
flexibility. We believe that these often complex deals leverage the balance
sheet, while diluting shareholder value.
By so voting to amend the Company's By-Laws, the shareholders can ensure that,
in the future, decisions about whether to make acquisitions, which may dilute
shareholder value, will require the vote of a majority of the Company's
shareholders. We urge you to vote to amend the Company's By-Laws to provide that
any decision by the Company to acquire an operating business where the
consideration paid by the Company exceeds $25 million, requires a majority vote
of the Company's shareholders, and that, the amended by-law thereafter may only
be amended or repealed by a majority vote of the Company's shareholders.
WE URGE SHAREHOLDERS TO VOTE IN FAVOR OF THIS PROPOSAL.
[INQUIRY LETTER]
December 5, 2007
Via Overnight Delivery
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street, N.E.
Washington, D.C. 20549
Re: Fisher Communications, Inc. 2008 Shareholder Proposal
Dear Sir or Madam:
This letter is written on behalf of GAMCO Asset Management Inc. ("GAMCO"), the
beneficial owner of approximately 11.8% of the outstanding shares Fisher
Communications, Inc. (the "Company"). GAMCO is responding to the "no-action"
request letter from counsel for the Company to the Commission, dated November
29, 2007, notifying the Commission of the Company's intent to exclude GAMCO's
shareholder proposal from the Company's 2008 Proxy Statement. As set forth
below, GAMCO submitted a proper and timely shareholder proposal, and the
Company's efforts to exclude the proposal amount to an improper and inequitable
abuse of the proxy rules, and Rule 14a-8(e)(2) in particular.
As reflected in the shareholder proposal (the "Proposal," Exhibit A hereto),
GAMCO is a substantial and long-term beneficial owner of the Company's common
stock. The Company makes no objection to the substance of GAMCO's Proposal. The
Company's sole basis for seeking to exclude the Proposal is that the Proposal
was not timely. GAMCO disagrees.
The Company's Proxy Statement for its 2007 annual meeting states that
shareholder proposals intended to be presented at the Company's 2008 annual
meeting are to be received by the Company by November 24, 2007. The Company did
not mention that November 24 was a Saturday. GAMCO, recognizing that November 24
was a Saturday, delivered its Proposal to DHL on Wednesday, November 21, 2007,
for overnight delivery, expecting that the Proposal would be delivered to the
Company on Friday, November 23. However, the Company also did not disclose,
either in its Proxy or its request for no-action relief, and GAMCO did not know,
that the Company apparently was closed for business on Friday, November 23, and
did not receive or accept postal or overnight deliveries. Therefore, DHL could
not make delivery on November 23, and ultimately could only make delivery of the
Proposal on Monday, November 26, 2007. The enclosed DHL Tracking Summary shows
that: (i) the package was shipped by GAMCO on November 21, 2007 from our offices
in Rye, NY, for shipment to the Company in Seattle, WA; (ii) the package was in
the hands of DHL's delivery courier in Seattle on Friday, November 23; and (iii)
the package was delivered to the Company on Monday, November 26, 2007 at 9:31 am
(Exhibit B hereto)
The Company selected and published a date for submission of shareholder
proposals that fell on what apparently was a four-day weekend for the Company.
The Company should not be permitted to reject the Proposal as untimely in these
circumstances. GAMCO acted reasonably in sending its Proposal, via overnight
delivery, on Wednesday, November 21. The Company should not be rewarded for its
apparent attempt to avoid the receipt of shareholder proposals.
In circumstances where the Company selected a Saturday (November 24), a day when
the Company is not open for business, as the last submission date, the
Commission should consider as timely the delivery of GAMCO's Proposal on Monday,
November 26, the next business day when the Company was open for business.
Alternatively, the Commission should find that the Company acted improperly by
identifying a Saturday as the day for receipt, knowing, but not disclosing in
its Proxy Statement, that the Company's offices would be closed on the preceding
Friday. In either event, the Commission should deem GAMCO's proposal timely, and
deny the Company's no-action request to exclude the Proposal.
In accordance with Rule 14a-8(j), GAMCO hereby files six copies of this letter
and the Exhibits, and simultaneously is forwarding, via overnight delivery, a
copy of this letter and Exhibits to the Company.
We appreciate your consideration of this request. If you require any additional
information, please do not hositate to contact me.
Sincerely,
/s/
Peter D. Goldstein
Director of Regulatory Affairs
Enclosures
Cc: Andrew Bor, Esq. (via Overnight Delivery)
S. Mae Fujita Numata (via Overnight Delivery)
[INQUIRY LETTER]
December 11, 2007
VIA OVERNIGHT COURIER
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street N.E.
Washington, D.C. 20549
Re: Shareholder Proposal Submitted by GAMCO Asset Management Inc. for Inclusion
in the Fisher Communications, Inc. 2008 Proxy Statement
Dear Sir or Madam:
On behalf of Fisher Communications, Inc. (the "Company"), we submit this letter
to supplement our previous letter to the staff of the Division of Corporate
Finance (the "Staff"), dated November 29, 2007, regarding the above-referenced
shareholder proposal (the "Proposal") submitted to the Company by GAMCO Asset
Management Inc. (the "Proponent"), and to respond to the December 5, 2007 letter
from Peter D. Goldstein, the Proponent's Director of Regulatory Affairs (the
"Proponent's Letter"). As explained in our November 29, 2007 letter, the Company
intends to exclude the Proposal from the proxy statement to be distributed to
the Company's shareholders in connection with its 2008 Annual Meeting of
Shareholders (the "2008 Proxy Statement") because it was not submitted within
the time period specified by the Company in accordance with Commission Rule
("Rule") 14a-8(e) under the Securities Exchange Act of 1934, as amended.
As detailed below and in our November 29, 2007 letter, the Proposal was received
by the Company on November 26, 2007, two days after the applicable November 24,
2007 deadline. For a shareholder proposal to be considered timely under Rule
14a-8(e)(2), where, as here, the date of a company's annual meeting has not been
changed by more than 30 days from the date of the previous year's meeting, it
"must be received at the company's principal executive offices not less than 120
calendar days before the date of the company's proxy statement released to
shareholders in connection with the previous year's annual meeting." Rule
14a-8(e)(2) (emphasis added).
The November 24, 2007 deadline for shareholder proposals referenced in the
Company's proxy statement for its 2007 Annual Meeting of Shareholders is 120
calendar days before the date of the Company's proxy statement released to
shareholders in connection with the previous year's annual meeting. The deadline
was not, as the Proponent asserts, "selected" by the Company in an "apparent
attempt to avoid the receipt of shareholder proposals." Rather, the deadline was
determined pursuant to the requirements of Rule 14a-8(e)(2) and in accordance
with the views expressed by the Staff. See Division of Corporation Finance,
Staff Legal Bulletin No. 14 (July 13, 2001) ("if the deadline falls on a
Saturday, Sunday or federal holiday, the company must disclose this date in its
proxy statement, and rule 14a-8 proposals received after business reopens would
be untimely"). Moreover, the Company's annual meeting has consistently been held
on the fourth Thursday of April.
The burden is on the shareholder to ensure that the proposal is received by the
company by the required deadline. The Staff has stated that shareholders should
submit a proposal "well in advance of the deadline and by a means that allows
the shareholder to demonstrate the date the proposal was received at the
company's principal executive offices." Division of Corporation Finance, Staff
Legal Bulletin No. 14 (July 13, 2001). The Staff has strictly construed the
deadline for receipt of shareholder proposals under Rule 14a-8(c)(2) and has
consistently permitted companies to omit from proxy materials those proposals
received after the deadline, even in cases where the proposals were only one or
two days late. See, e.g., Smithfield Foods Inc. (June 4, 2007); International
Business Machines Corp. (Dec. 5, 2006); American Express Co. (Dec. 21, 2004);
Hewlett-Packard Co. (Jan. 24, 2003). The Staff's position has remained
consistent, even when a delay resulted from circumstances beyond a proponent's
control. See, e.g., Datastream Systems, Inc. (Mar. 9, 2005) (where the deadline
was December 25, 2004 (Christmas Day) and the proponent sent the proposal on
December 23, 2004 via UPS Next Day Air, but the company did not receive the
proposal until December 27, 2004 due to extraordinary snowstorms that prevented
UPS from delivering the proposal on December 24, 2004); JPMorgan Chase & Co.
(Feb. 8, 2005) (where the deadline was December 22, 2004 and the proponent sent
the proposal on December 21, 2004 via DHL for next day delivery, but the
proposal was not received by the company until December 24, 2004 due to a severe
winter storm that prevented DHL from delivering the proposal on December 22,
2004).
The Staff has refused to grant no-action relief to companies seeking to exclude
an untimely proposal only in very limited situations not applicable here. In
Eastman Chemical Co. (Jan. 30, 2007), for example, the deadline for delivery was
November 24, 2006 (the day after Thanksgiving Day) and the proponent sent the
proposal on November 22, 2006 via UPS Next Day Air. Relief was denied in that
case, despite the company's receipt of the proposal on November 27, 2006,
because the company was closed and not accepting deliveries on November 24,
2006, the first day that UPS attempted delivery.
Here, although the Company's corporate offices were not open for business on
Friday, November 23, 2007 (the day after Thanksgiving Day), or Saturday,
November 24, 2007, the multi-tenant office building, which the Company owns and
manages and where the Company's principal executive offices are located, Fisher
Plaza, was opon and the lobby desk was staffed with a person who was able and
authorized to receive packages and deliveries. In fact, Fisher Plaza is staffed
with a person able to receive deliveries 24 hours a day, 7 days a week,
including weekends and holidays. Had delivery of the Proposal been attempted
during the closure of the Company's corporate offices for the Thanksgiving
holiday, the Fisher Plaza staff person would have accepted and signed for the
package.
In any event, whether the Company was accepting deliveries on Friday, November
23, 2007 is irrelevant because, contrary to the implication in the Proponent's
Letter, delivery was not attempted on that date. For that day, the DHL Tracking
Summary (see Exhibit A) provides that the package was "With delivery courier."
The following answers to frequently asked questions provided on DHL's website
are instructive on the meaning of "With delivery courier":
What does it mean when the shipment status is, "With delivery courier"?
This checkpoint reports that a shipment has been received by the delivering
courier and a delivery attempt will be made soon.
What does it mean when the shipment status is, "Consignee premises closed"?
If this was the first attempt to deliver the package another attempt will be
made before the end of the following business day. If this was the second
attempt please contact customer service.
See http://www.dhl-usa.com/custserv/faq.asp?PageID=TK&nav=FAQ/Tracking (last
visited Dec. 7, 2007). If DHL had attempted to deliver the package containing
the Proposal on November 23, 2007 and the Company's premises had been closed,
the DHL Tracking Summary would have said "Consignee premises closed," not "With
delivery courier."
It is through no fault of the Company that the Proposal was not received by the
applicable deadline. Furthermore, in addition to or instead of the Proponent's
chosen method of delivery, especially given the holiday weekend, the Proponent
could have used facsimile or electronic mail delivery to ensure that the Company
received the proposal by the applicable deadline.
Therefore, for the reasons set forth herein and in our prior letter, the Company
hereby respectfully requests that the Staff follow its long-standing position of
strictly enforcing the deadline for timely submissions under Rule 14a-8(e)(2)
and confirm that it will not recommend enforcement action if the Proposal is
excluded from the 2008 Proxy Statement. Because the untimely delivery is
dispositive for excluding the Proposal, we do not raise other reasons for
excluding the Proposal at this time.
Enclosed are six copies of this letter and its attachment. We are simultaneously
forwarding via overnight courier a copy of this letter and its attachment to the
Proponent. Please acknowledge receipt of this letter by stamping the enclosed
copy of this letter and returning it to me in the enclosed envelope. In the
event that the Staff disagrees with the Company's course of action, the Company
would appreciate the opportunity to confer with the Staff before it issues a
response on this letter.
Please do not hesitate to contact me at (206) 359-8577 if I can be of any
further assistance in this matter.
Very truly yours,
/s/
Andrew Bor
Enclosure
cc: Peter D. Goldstein, GAMCO Asset Management Inc.
S. Mae Fujita Numata, Fisher Communications, Inc.
[STAFF REPLY LETTER]
December 19, 2007
Response of the Office of Chief Counsel Division of Corporation Finance
Re: Fisher Communications, Inc.
Incoming letter dated November 29, 2007
The proposal relates to acquisitions.
There appears to be some basis for your view that Fisher Communications may
exclude the proposal under rule 14a-8(e)(2) because Fisher Communications
received it after the deadline for submitting proposals. We note in particular
your representations that an individual at Fisher Communications' principal
executive offices was able and authorized to receive, accept, and sign for
packages on November 23, 2007 and that delivery was not attempted on that date.
Accordingly, we will not recommend enforcement action to the Commission if
Fisher Communications omits the proposal from its proxy materials in reliance on
rule 14a-8(e)(2).
Sincerely,
/s/
John R. Fieldsend
Attorney-Advisor
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