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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 In reply refer to: 1800E1 February 7, 1997 Released: February 10, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Chesapeake Television Licensee, Inc. Licensee, WBFF(TV) 2000 West 41st Street Baltimore, MD 21211 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of ten thousand dollars ($10,000) pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. 503(b), under authority delegated to the Chief of the Mass Media Bureau by Section 0.283 of the Commission's Rules, 47 C.F.R. 0.283, for repeated violations of the Commission's rule limiting the amount of commercial matter that may be aired during children's programming. In the Children's Television Act of 1990, Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S.C. Sections 303a, 303b and 394, Congress directed the Commission to adopt rules, interalia, limiting the amount of commercial matter that television stations may air during children's programming, and to consider in its review of television license renewals the extent to which the licensee has complied with such commercial limits. Accordingly, the Commission adopted Section 73.670 of the Rules, 47 C.F.R. 73.670, which limits the amount of commercial matter which may be aired during children's programming to 10.5 minutes on weekends and 12 minutes on weekdays. The Commission also reaffirmed and clarified its long-standing policy that a program associated with a product, in which commercials for that product are aired, would cause the entire program to be counted as commercial time (a "program-length commercial"). Children's Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). These commercial limitations became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). On June 3, 1996, you filed an application for renewal of license (FCC Form 303-S) for station WBFF(TV), Baltimore, MD (File No. BRCT-960603LK). In response to Section III, Question 4 of that application you state that during the previous license term WBFF(TV) failed to comply with the limitations on commercial matter in children's programming specified in Section 73.670 of the Commissions Rules. In Exhibit 3 to that application you indicate that WBFF(TV) violated the children's television commercial limits on five occasions. Of these commercial overages, one was 30 seconds in duration (within a half-hour block of children's programming); and four were program-length commercials. You state that the 30-second overage occurred as a result of an error by a new employee, and that the children's television commercial limitations were "reiterated to the staff." You further state that on February 22, 1994, during the "Power Rangers" program, a "Bandai/Power Ranger commercial" was broadcast; that this was the result of "an inadvertent human error"; and that the station instituted "procedural guidelines" to prevent a recurrence. In addition, you state that on March 19, 1994, a broadcast of the program "Tazmania" included a commercial announcement for "Kellogg's Raisin Bran" cereal which featured an appearance by the program's "Taz" character; and that, because the station received a "live feed" of the "Tazmania" program in question from the Fox Television Network, the inclusion of the commercial announcement featuring a character from the program "was a network infraction beyond the control" of WBFF(TV). Finally, you state that on November 28 and 30, 1994, a broadcast of the program "Sonic the Hedgehog" included a commercial announcement which "depicted the Sonic the Hedgehog character"; that the announcement was a barter spot included in the program by the program's supplier; and that the announcement "gave no warning that it featured this particular hedgehog character." WBFF(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on five occasions constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Chesapeake Television Licensee, Inc. is hereby advised of its apparent liability for forfeiture in the amount of ten thousand dollars ($10,000) for its apparent repeated violation of Section 73.670 of the Commission's Rules. The amount specified was reached after consideration of the factors set forth in Section 503(b)(2) of the Communications Act, and, in particular, the following criteria: (1) the number of instances of commercial overages; (2) the length and nature of each such overage; (3) the period of time over which such overages occurred; (4) whether or not the licensee established an effective program to ensure compliance; and (5) the specific reasons that the licensee gives for the overages. These criteria are appropriate in analyzing violations of the commercial limits during children's programming, since they take into account, inter alia, "the nature, circumstances, extent, and gravity of the violation, and, with respect to the violator, the degree of culpability", as required under 503(b)(2)(D) of the Communications Act. See Clear Channel Television, Inc. (KTTU(TV)), 10 FCC Rcd 3773 (1995); Northstar Television of Erie, Inc. (WSEE-TV), 10 FCC Rcd 3779 (1995). When the Commission delayed the effective date of Section 73.670 of the Rules until January 1, 1992, we stated that "giving the additional time to broadcasters and cable operators before compliance with the commercial limits is required will have the effect of enabling broadcasters and cable operators to hone their plans to ensure compliance...." Children's Television Programming, supra 6 FCC Rcd at 5530 n.10. Although WBFF(TV) appears to have made an effort to comply with the Commission's children's television commercial limits, that effort apparently was not sufficient in light of the violations described in the station's renewal application. Although one of the overages described in WBFF(TV)'s renewal application was 30 seconds in duration, four were program-length commercials. Congress was particularly concerned about program-length commercials because young children often have difficulty distinguishing between commercials and programs. S. Rep. No. 227, 101st Cong., 1st Sess. 24 (1989). Overages of this frequency and magnitude mean that children have been subjected to commercial matter greatly in excess of the limits contemplated by Congress when it enacted the Children's Television Act of 1990. Children's Television Programming, supra6 FCC Rcd at 2117-18. Further, the assertion that the program-length commercials occurred in programs supplied by the Fox Television Network, or another program supplier, does not absolve WBFF(TV) of responsibility for those violations. The Commission has consistently held that a licensee's reliance on a program's source or producer for compliance with the children's television rules and policies will not mitigate or excuse violations which do occur. See, e.g., Max Television of Syracuse, L.P. (WSYT(TV)), 10 FCC Rcd 8905 (1995); Mt. Mansfield Television, Inc. (WCAX- TV), 10 FCC Rcd 8797 (1995); Boston Celtics Broadcasting Limited Partnership (WFXT(TV)), 10 FCC Rcd 6686 (1995). The only other reason for the overages proffered by WBFF(TV), inadvertence and human error, do not mitigate or excuse such violations. Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (1995); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959 (1995); Le Sea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995). Consideration of all of these factors warrants a forfeiture in the above-specified amount of $10,000. Cf., Gannett Massachusetts Broadcasting, Inc. (WLVI-TV), 9 FCC Rcd 1555 (1994) ($10,000 forfeiture for seven overages, including four program-length commercials); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994) ($10,000 forfeiture for six overages, including three program-length commercials). You are afforded a period of thirty (30) days from the date of this letter "to show, in writing, why a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent." Section 1.80(f)(3) of the Commission's Rules, 47 C.F.R. 1.80(f)(3). Other relevant provisions of Section 1.80(f)(3) of the Commission's Rules are summarized in the attachment to this letter. Notwithstanding the substantial nature of the violations described here and the severity with which we regard them, we find you qualified to remain a Commission licensee and conclude that grant of your application would serve the public interest, convenience and necessity. Therefore, the license renewal application of Max Television of Syracuse L.P., File No. BRCT-960603LK, for Station WBFF(TV), Baltimore, MD, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Martin R. Leader, Esq. $// CHESAPEAKE TLVSN LICENSEE, INC., WBFF(TV)(BALTIMORE, MD) DA 97-292 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$