******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 July 10, 1997 Released: July 14, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED WGNX, Inc. Licensee, WGNX(TV) P.O. Box 98097 Atlanta, GA 30359 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of fourteen thousand dollars ($14,000) 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, inter alia, 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. Pursuant to this statutory mandate, 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 December 2, 1996, you filed an application for renewal of license (FCC Form 303-S) for Station WGNX(TV), Atlanta, GA (File No. BRCT-961202LH). In response to Section III, Question 4 of that application you indicate that during the previous license term WGNX(TV) failed to comply with the limitations on commercial matter in children's programming specified in Section 73.670 of the Commission's Rules. In Exhibit 4 to that application, as amended, you indicate that between January 9, 1992, and May 3, 1994, WGNX(TV) violated the children's television commercial limit rules and policies on 26 occasions. Of these commercial overages, four were less than 30 seconds in duration; 12 were 30 seconds in duration; one was 45 seconds in duration; two were one minute in duration; and seven were program-length commercials. You state that the conventional overages were caused by "either mechanical failure and/or human error". Nine of those conventional overages are attributed to an "error of interpretation" of the commercial limit rules by station personnel. With regard to the program-length commercials, you state that the station initially relied on program advertisers and distributors to indicate whether commercial matter in a children's program was related to the program, but such parties sometimes failed to notify WGNX(TV) regarding program- related commercial matter in children's programs; that in July, 1992, when WGNX(TV) discovered that it had broadcast five such program-length commercials, the station adopted policies and procedures to prevent recurrence; and that, despite such policies and procedures, two additional program-length commercials were broadcast in the first quarter of 1994. In establishing rules and policies limiting the amount of commercial matter which may be aired during children's programming, the Commission specifically recognized that licensees may experience "occasional emergency scheduling change[s]", and stated that such emergency schedule changes would be taken into consideration in determining whether "extenuating circumstances" mitigated any resulting children's television commercial limit violations. Children's Television Programming, supra 6 FCC Rcd at 2126 n.123. On reconsideration, the Commission affirmed this policy, stating that "where the facts demonstrate that a slight overage is caused by a last-minute emergency scheduling change, we will consider such a lapse to be 'de minimis.'" Children's Television Programming (Recon.), supra 6 FCC Rcd at 5096. However, it appears that the conventional overages involving "mechanical failure" are attributable to human error by station personnel rather than the described "mechanical failure[s]". For instance, a one-minute overage on March 16, 1992, is described as occurring in connection with "a carting error in engineering" which caused a scheduled commercial announcement to be omitted. However, it appears that an overage occurred not because of the "carting error", but because a station employee inserted the missed spot in a subsequent children's program. Similarly, a 45-second overage on October 14, 1992, is described as occurring in connection with "engineering problems" which caused a two-minute delay in a program preceding the children's program in question. It appears that this overage occurred not because of "engineering problems", but because a station employee "dropped all promos" (promotional announcements, which are not considered "commercial matter" for the purpose of the children's television commercial limits), while leaving intact the commercial load in the subsequent children's program. The Commission has consistently rejected human error, inadvertence and/or misunderstanding of the children's television commercial limit rules and policies 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 (1995); 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). Accordingly, the "mechanical failure[s]" described in WGNX(TV)'s renewal application cannot be considered to be extenuating circumstances which would mitigate the resulting commercial overages. WGNX(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on 26 occasions constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, WGNX, Inc., is hereby advised of its apparent liability for forfeiture in the amount of fourteen thousand dollars ($14,000) 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). WGNX(TV) violated the children's television commercial limits on 26 occasions. This is a high number of violations. Further, violations occurred from January 9, 1992 through May 3, 1994, an extended period of two years and four months. 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 WGNX(TV) appears to have made some 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. You have not proffered any extraordinary transitional or other difficulties that would have prevented Station WGNX(TV) from complying with the children's television commercial limitations during the last license period. Rather, the conventional violations reported in WGNX(TV's renewal application are attributable to human error or station employees' misunderstanding of the children's television commercial limit rules and policies. As discussed above, the Commission has consistently rejected human error and misunderstanding as a basis for excusing violations of the children's television commercial limits. The fact that WGNX(TV) 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); 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). Finally, seven of the violations 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, supra 6 FCC Rcd at 2117- 18. You assert that the program-length commercial violations occurred because of the failure of program advertisers and/or distributors to indicate that commercial matter in a children's program was related to the program. However, 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 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). Consideration of all of these factors warrants a forfeiture in the above- specified amount of $14,000. Cf., Paramount Stations Group of Kerrville, Inc. (KRRT(TV)), 8 FCC Rcd 7064 (1993)($15,000 forfeiture for 28 overages, including eight program-length commercials); Act III Broadcasting License Corporation (WUHF(TV)), 10 FCC Rcd 8799 (1995)($15,000 forfeiture for 37 overages, including six 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 WGNX, Inc., for Station WGNX(TV), Atlanta, GA, File No. BRCT- 961202LH, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Mark D. Schneider, Esq. $// WGNX, INC., WGNX(TV)(Atlanta, GA) DA 97-1445 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$