WPCG 2?BJZECourier3|j#d6X@`7s@#HP LaserJet 4M (PCL) ROOM 712HPLA4MPC.PRSx  @\=ρX@ r5-#d6X@`7s@#23Xq Z<?xxx,2x6X@`7X@<r5ddd,sd6X@`7@\ @^5q.$h';U7G;A 7Xn-6F[w!/DTck{3|jHP LaserJet 4M (PCL) ROOM 712HPLA4MPC.PRSXj\  P6G;\=ρXP2l :eKK75Times New RomanCourierTimes New Roman BoldCourier Bold"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNfx6X@`7X@?xxx,-x `7X<~9nnn,Fcn6X@`7&@}:nnn,-on `7&RxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS8 X   N X-w  Federal Communications Commission`(#DA 97394 ă  yxdddy Federal Communications Commission Washington, D.C. 20554 `(# In reply refer to: x` `  hh@hpp  xx 1800E1 U"RI  %February 18, 1997  XH-`s(# Released: February 26, 1997 ă  X -  X - CERTIFIED MAIL RETURN RECEIPT REQUESTED WHNS License Partnership Licensee, WHNS(TV) 21 Interstate Court Greenville, SC 29615 Dear Licensee:   xThis letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in  xthe amount of ten thousand dollars ($10,000) pursuant to Section 503(b) of the Communications  xyAct of 1934, as amended, 47 U.S.C. 503(b), under authority delegated to the Chief of the Mass  xlMedia Bureau by Section 0.283 of the Commission's Rules, 47 C.F.R. 0.283, for repeated  xviolations of the Commission's rule limiting the amount of commercial matter that may be aired during children's programming.   xIn the Children's Television Act of 1990, Pub. L. No. 101437, 104 Stat. 9961000,  Xe- xcodified at 47 U.S.C. Sections 303a, 303b and 394, Congress directed the Commission to adopt  XN- xrules, inter alia, limiting the number of minutes of commercial matter that television stations may  xair during children's programming, and to consider in its review of television license renewals  xthe extent to which the licensee has complied with such commercial limits. Therefore, the  xzCommission adopted Section 73.670 of the Rules, 47 C.F.R. 73.670, which limits the amount  x>of commercial matter which may be aired during children's programming to 10.5 minutes per  xhour on weekends and 12 minutes per hour on weekdays. The Commission also reaffirmed and  xclarified its longstanding policy that the entire duration of a program associated with a product,  xin which commercials for that product are aired (a "programlength commercial") would be  x/counted as commercial matter for the purpose of the children's television commercial limits.  X#- xzChildren's Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd  Xh$- x]5093, 5098 (1991). The commercial limits became effective on January 1, 1992. Children's  XQ%-Television Programming, 6 FCC Rcd 5529, 5530 (1991).   1xOn July 25, 1996, you filed an application for renewal of license (FCC Form 303S) for  xstation WHNS(TV), Ashville, NC (BRCT960725KL). In response to Section III, Question 4 of  xthat application you state that during the previous license term WHNS(TV) failed to comply with  x the limits on commercial matter in children's programming specified in Section 73.670 of the"),**qqn("  xCommissions Rules. In Exhibit 3 to that application you indicate that between January 30, 1992,  x!and April 19, 1996, WHNS(TV) violated the children's television commercial limits on 20  xoccasions. Of these commercial overages, two were 60 seconds in duration; 15 were 30 seconds  xin duration; one was 17 seconds in   duration; one was 11 seconds in duration; and one was a  xprogramlength commercial. You explain that "virtually all" of the violations occurred during  xlthe first year that the children's television commercial limits were in effect, "when station  xpersonnel were not fully familiar with required compliance procedures"; that five of the early  xviolations and two of the more recent violations were caused by equipment failures or  x-malfunctions; that the other violations "were the result of inadvertent human error and the failure  x-to follow required station procedures"; and that "[s]trong corrective measures" adopted after the  xviolations had been effective, because there had been "only three overages associated with human  xzerror...since October, 1992...." You further state that on March 19, 1994, a program provided  xby the Fox Television Network included a commercial announcement "featuring a character in  xjthe program"; and that this violation "was the fault of the network." Attached to Exhibit 3 was  xdocumentation containing details about the reported overages. Some of these documents indicate  xthat on January 27, 1992, there was a "total computer crash" of the station's traffic system; that,  xas a result, the logs for the dates January 28 through February 7, 1992, had to be prepared  x\manually; and that five of the commercial overages (two of 60 seconds duration, three of 30 seconds duration) were caused by the January 27 "computer crash". Also attached to Exhibit 3  x?is a memo which states that on August 18, 1995, there was a malfunction in the station's  xcomputer control system which, for no known reason, rewound a commercial announcement and  xstarted it again from the beginning; that the board operator on duty attempted to stop the rewound  xspot, but the machine did not immediately respond; and that, although the entire commercial  xannouncement did not air, the malfunction in the computer control system caused an overage of  x17 seconds. Another document attached to Exhibit 3 indicates that a similar equipment  xmalfunction caused an overage of 11 seconds on April 19, 1996. Finally, attached to Exhibit 3  xis a document which indicates that on March 19, 1994, during a program entitled "Tazmania",  xa commercial for Kellogg's Raisin Bran cereal which included a 10second "premium" spot  xfeaturing a character from the program was "inadvertently" broadcast; and that the Fox Television Network had instituted procedures to ensure that there would be no recurrence.   |xIn establishing rules and policies limiting the amount of commercial matter which may  x.be aired during children's programming, the Commission specifically recognized that licensees  xmay experience "occasional emergency scheduling change[s]", and stated that such emergency  xschedule changes would be taken into consideration in determining whether "extenuating  xcircumstances" mitigated any resulting children's television commercial limit violations.  X - xkChildren's Television Programming, supra 6 FCC Rcd at 2126 n.123. On reconsideration, the  xCommission affirmed this policy, stating that "where the facts demonstrate that a slight overage  xis caused by a lastminute emergency scheduling change, we will consider such a lapse to be 'de  X#- xminimis.'" Children's Television Programming (Recon.), supra 6 FCC Rcd at 5096.  Although  x=the overages which occurred on August 18, 1995, and April 19, 1996, did not involve schedule  XQ%- x.changes, we believe that the computer malfunctions which caused rewinding and replaying of  xcommercial announcements constitutes an extenuating circumstance with regard to those overages.  xAccordingly, the two overages which occurred on August 18, 1995, and April 19, 1996, shall be  X (- x.considered de minimis, and shall not be considered in determining any sanction which may be" (,))qq&"  xappropriate for other children's television commercial limit violations reported by the licensee.  xyIn contrast, the computer failure which allegedly caused five overages between January 30 and  xFebruary 3, 1992, occurred on January 27, 1992, three days before the first overage. Further,  xdocumentation attached to Exhibit 3 of the WHNS(TV) renewal application indicates that the  xoverage on January 30, 1992, occurred not because of the January 27 computer failure, but  x<because the log for January 30 "was prepared manually and in the confusion...[station personnel]  xldid not realize that the 67 AM time period had 30 seconds too much ...commercial time."  xConfusion on the part of station personnel and/or lack of awareness of the actual amount of  xcommercial matter in a children's program do not constitute an extenuating circumstance with regard to violations of the children's television commercial limits.   xWHNS(TV)'s record during the last license term of exceeding the Commission's  x=commercial limits on children's television programming on 18 occasions constitutes a repeated  xjviolation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b)  xKof the Communications Act, WHNS License Partnership is hereby advised of its apparent liability  xyfor forfeiture in the amount of ten thousand dollars ($10,000) for its apparent repeated violation  xof Section 73.670 of the Commission's Rules. The amount specified was reached after  xconsideration of the factors set forth in Section 503(b)(2) of the Communications Act, and, in  xkparticular, the following criteria: (1) the number of instances of commercial overages; (2) the  xlength and nature of each such overage; (3) the period of time over which such overages  xoccurred; (4) whether or not the licensee established an effective program to ensure compliance;  xand (5) the specific reasons that the licensee gives for the overages. These criteria are appropriate  x.in analyzing violations of the commercial limits during children's programming, since they take  X- xinto account, inter alia, "the nature, circumstances, extent, and gravity of the violation, and, with  x?respect to the violator, the degree of culpability", as required under 503(b)(2)(D) of the  X- xNCommunications Act. See Clear Channel Television, Inc. (KTTU(TV)), 10 FCC Rcd 3773  X-(1995); Northstar Television of Erie, Inc. (WSEETV), 10 FCC Rcd 3779 (1995).   |xWHNS(TV) exceeded the children's television commercial limitations on 18 occasions  xover a two year period, including one programlength commercial. When the Commission  xdelayed the effective date of Section 73.670 of the Rules from October 1, 1991, until January 1,  x 1992, we stated that "giving the additional time to broadcasters and cable operators before  xcompliance with the commercial limits is required will have the effect of enabling broadcasters  X - x!and cable operators to hone their plans to ensure compliance...." Children's Television  X- xProgramming, supra 6 FCC Rcd at 5530 n.10. However, in Exhibit 3, you indicate that "station  xpersonnel were not fully familiar with required compliance procedures" during the first year that  x{the children's television commercial limits were in effect, and that the vast majority of the  xstation's reported overages "were the result of inadvertent human error and the failure to follow  xrequired station procedures." In view of these statements and the violations listed in your renewal  xMapplication, it is apparent that WHNS(TV) initially did not establish an effective program to  x=monitor compliance with the children's television commercial limitations. The Commission has  xconsistently and repeatedly rejected human error, inadvertence and/or misunderstanding as a basis  X:&- xfor excusing violations of the children's television commercial limits. See, e.g., UTV of San  X#'- x Francisco, Inc. (KBHKTV), 10 FCC Rcd 10986, 10987 & Note 1; Le Sea Broadcasting Corp.  X (- x(WHKE(TV)), 10 FCC Rcd 4977, 4978 (1995); Buffalo Management Enterprises Corp. (WIVB" (,))qq&"ԫ X- xTV), 10 FCC Rcd 4959, 4960 (1995); Gannett Massachusetts Broadcasting, Inc. (WLVITV), 9  X- xFCC Rcd 1555 (1994); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994);  X- xChannel 12 of Beaumont, Inc. (KBMTTV), 9 FCC Rcd 1825; WKBD, Inc., 8 FCC Rcd 5079  xy(1993). Further, a licensee's reliance on a program's source or producer for compliance with our  xzchildren's television rules and policies will not excuse or mitigate violations which do occur.  X- xmSee, e.g., Max Television of Syracuse, L.P. (WSYT(TV)), 10 FCC Rcd 8905 (1995); Mt.  Xv- x=Mansfield Television, Inc. (WCAXTV), 10 FCC Rcd 8797 (1995); Boston Celtics Broadcasting  X_- xLimited Partnership (WFXT(TV)), 10 FCC Rcd 6686 (1995); WRGB Broadcasting, Inc., MMB  xAdmonition dated August 10, 1994. Finally, the fact that WHNS(TV) (and/or the Fox Television  xNetwork) may have implemented policies to prevent subsequent violations of the Commission's  xzchildren's television rules and policies does not relieve the licensee of liability for violations  X - x=which have occurred. International Broadcasting Corp., 19 FCC 2d 793, 794 (1969); KBHKTV,  X - xAsupra 10 FCC Rcd at 10988; KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993); R&R Media  X - xCorporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (1994); Mountain States Broadcasting, Inc.  X - x0(KMSBTV), 9 FCC Rcd 2545, 2546 (1994); WHP Television, L.P., 10 FCC Rcd 4979, 4980  x(1995). Consideration of all of these factors warrants a forfeiture in the abovespecified amount  X- xof $10,000. Cf., WIVBTV, supra 10 FCC Rcd at 4960($10,000 forfeiture for 11 overages,  Xy- xincluding three programlength commercials); Oregon Television, Inc., (KPTV(TV)), 10 FCC Rcd  x8766, 8767 (1995)($10,000 forfeiture for 11 overages, including three programlength commercials).   xYou are afforded a period of thirty (30) days from the date of this letter "to show, in  xkwriting, why a forfeiture penalty should not be imposed or should be reduced, or to pay the  x=forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced  x>shall include a detailed factual statement and such documentation and affidavits as may be  xpertinent." Section 1.80(f)(3) of the Commission's Rules, 47 C.F.R. 1.80(f)(3). Other relevant  xLprovisions of Section 1.80(f)(3) of the Commission's Rules are summarized in the attachment to this letter.   {xNotwithstanding the substantial nature of the violations described here and the severity  xwith which we regard them, we find you qualified to remain a Commission licensee and conclude  xthat grant of your application would serve the public interest, convenience and necessity.  xAccordingly, the application of WHNS License Partnership, for renewal of license for Station WHNS(TV), Ashville, NC (BRCT960725KL), is hereby GRANTED. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Roy J. Stewart x` `  hh@Chief, Mass Media Bureau Enclosure cc: Suzanne M. Perry, Esq. " (,))qq&"Ԍ  }:< #n6X@`7Fc&@#$// WHNS LICENSE PARTNERSHIP, WHNS(TV) (Ashville, NC) DA 97394 //$ $/ 300.503(b) FORFEITURES (NAL) /$  }:<$/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$#x6X@`7>fX@#  ?i< #x6X@`7>fX@#