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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 18, 1997 Released: February 26, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Sullivan Broadcasting License Corporation Licensee, WTAT-TV 18 Newbury Street Boston, MA 02116 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of twelve thousand five hundred dollars ($12,500) 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, inter alia, limiting the number of minutes 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 per hour on weekends and 12 minutes per hour on weekdays. The Commission also reaffirmed and clarified its long-standing policy that the entire duration of a program associated with a product, in which commercials for that product are aired (a "program-length commercial") would be counted as commercial matter for the purpose of the children's television commercial limits. Children's Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). The commercial limits became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). On August 1, 1996, you filed an application for renewal of license (FCC Form 303-S) for station WTAT-TV, Charleston, SC (BRCT-960801KS). Section III, Question 4 of that application indicates that during the previous license term WTAT-TV failed to comply with the limits on commercial matter in children's programming specified in Section 73.670 of the Commissions Rules. Exhibit 2 to that application states that between January 4, 1992, and November 30, 1994, WTAT-TV violated the children's television commercial limits on 21 occasions. Of these commercial overages, one was less than 30 seconds in duration; 13 were 30 seconds in duration; three were one minute in duration; one was one and one-half minutes in duration; and three were program-length commercials. All of the conventional overages were attributed to inadvertence, human error and/or miscalculation. You state that one of the program-length commercials "was the result of an error on the part of the Fox Television Network." Attached to Exhibit 2 is a copy of a communication from the Fox Television Network which indicates that on March 19, 1994, during a program entitled "Tazmania", a commercial for a breakfast cereal which included a 10-second "premium" spot featuring a character from the program was "inadvertently" broadcast; and that the Fox Television Network had instituted procedures to prevent a recurrence. You state that the other two program-length commercials "were the result of an error by One World Entertainment", the entity which places commercial matter in the syndicated program "Sonic the Hedgehog". Attached to Exhibit 2 is a copy of a document which states that on November 28 and 30, 1994, during the program "Sonic the Hedgehog", commercial announcements which included a reference to a "Sonic hand held game" manufactured by "SEGA/Pocket Arcade" were broadcast. WTAT-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on 21 occasions constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Sullivan Broadcasting License Corporation is hereby advised of its apparent liability for forfeiture in the amount of twelve thousand five hundred dollars ($12,500) 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). WTAT-TV exceeded the children's television commercial limitations on 21 occasions. This is a significant number of violations. In addition, three of the violations were program- length commercials. Overages of this nature 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. 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). With regard to your assertion that the program-length commercial violations occurred as a result of errors by the Fox Television Network and/or One World Entertainment, the Commission has consistently ruled that a licensee's reliance on a program's producer or syndicator for compliance with our children's television rules and policies will not excuse or mitigate 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); WRGB Broadcasting, Inc., MMB Admonition dated August 10, 1994. Further, the violations occurred over an extended period of two years and ten months. When the Commission delayed the effective date of Section 73.670 of the Rules from October 1, 1991, 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. In view of the violations listed and the explanations offered in WTAT-TV's renewal application, it is clear that the station initially did not establish an effective program to monitor compliance with the children's television commercial limitations, and failed to rectify this deficiency for almost three years. The Commission has repeatedly rejected human error, inadvertence and/or misunderstanding of the rules as a basis for excusing violations of the children's television commercial limits. See, e.g., UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10986, 10987 & Note 1; Le Sea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977, 4978 (1995); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959, 4960 (1995); Gannett Massachusetts Broadcasting, Inc. (WLVI-TV), 9 FCC Rcd 1555 (1994); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994); Channel 12 of Beaumont, Inc. (KBMT-TV), 9 FCC Rcd 1825; WKBD, Inc., 8 FCC Rcd 5079 (1993). Finally, the fact that WTAT-TV (and/or a program's producer or syndicator) may have implemented policies to prevent subsequent violations of the Commission's children's television rules and policies does not relieve the licensee of liability for violations which have occurred. International Broadcasting Corp., 19 FCC 2d 793, 794 (1969); KBHK-TV, supra 10 FCC Rcd at 10988; KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (1994); Mountain States Broadcasting, Inc. (KMSB-TV), 9 FCC Rcd 2545, 2546 (1994); WHP Television, L.P., 10 FCC Rcd 4979, 4980 (1995). Consideration of all of these factors warrants a forfeiture in the above- specified amount of $12,500. Cf., WIVB-TV, supra 10 FCC Rcd at 4960 ($10,000 forfeiture for 11 overages, including three program-length commercials); Oregon Television, Inc., (KPTV(TV)), 10 FCC Rcd 8766, 8767 (1995)($10,000 forfeiture for 11 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 Sullivan Broadcasting License Corporation qualified to remain a Commission licensee, and conclude that grant of the instant application would serve the public interest, convenience and necessity. Accordingly, the application of Sullivan Broadcasting License Corporation for renewal of license for Station WTAT-TV, Charleston, SC (BRCT-960801KS), is hereby GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosure cc: Howard M. Liberman, Esq. $// SULLIVAN BCSTG LIC. CORP., INC., WTAT-TV (Charleston, SC) DA 97-393 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$