WPCG 2?BJZECourier3|j#d6X@`7s@#HP LaserJet 4M (PCL) ROOM 712HPLA4MPC.PRSx  @\=ρX@ r5-#d6X@`7s@#23Xq Z<?xxx,fx6X@`7X@<r5ddd,sd6X@`7@IgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNfx6X@`7X@?xxx,-x `7X<~9nnn,Fcn6X@`7&@}:nnn,-on `7&{گ}{گ}{{ X   N X-w  Federal Communications Commission`)(# DA 971445 ă  yxdddy Federal Communications Commission Washington, D.C. 20554 `(#(#X"E In reply refer to:ԃ 2July 10, 1997  XH-`/(# Released: July 14, 1997 ă  X - CERTIFIED MAIL RETURN RECEIPT REQUESTED `(#(#X WGNX, Inc. Licensee, WGNX(TV) P.O. Box 98097 Atlanta, GA 30359 Dear Licensee:   xThis letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in  xthe amount of fourteen thousand dollars ($14,000) pursuant to Section 503(b) of the  xCommunications Act of 1934, as amended, 47 U.S.C. 503(b), under authority delegated to the  x=Chief of the Mass Media Bureau by Section 0.283 of the Commission's Rules, 47 C.F.R. 0.283,  xfor repeated violations 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- x[rules, inter alia, limiting the amount of commercial matter that television stations may air during  xchildren's programming, and to consider in its review of television license renewals the extent  xto which the licensee has complied with such commercial limits. Pursuant to this statutory  xmandate, the Commission adopted Section 73.670 of the Rules, 47 C.F.R. 73.670, which limits  x the amount of commercial matter which may be aired during children's programming to 10.5  xminutes per hour on weekends and 12 minutes per hour on weekdays. The Commission also  xreaffirmed and clarified its longstanding policy that the entire duration of a program associated  xwith a product, in which commercials for that product are aired (a "programlength commercial")  x=would be counted as commercial matter for the purpose of the children's television commercial  X#- xlimits. Children's Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6  xFCC Rcd 5093, 5098 (1991). The commercial limits became effective on January 1, 1992.  XQ%-Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991).   xOn December 2, 1996, you filed an application for renewal of license (FCC Form 303S)  x>for Station WGNX(TV), Atlanta, GA (File No. BRCT961202LH). In response to Section III,  xQuestion 4 of that application you indicate that during the previous license term WGNX(TV)  xfailed to comply with the limitations on commercial matter in children's programming specified"),**qqn("  xin Section 73.670 of the Commission's Rules. In Exhibit 4 to that application, as   amended, you  x indicate that between January 9, 1992, and May 3, 1994, WGNX(TV) violated the children's  xtelevision commercial limit rules and policies on 26 occasions. Of these commercial overages,  xfour were less than 30 seconds in duration; 12 were 30 seconds in duration; one was 45 seconds  xin duration; two were one minute in duration; and seven were programlength commercials. You  xstate that the conventional overages were caused by "either mechanical failure and/or human  xerror". Nine of those conventional overages are attributed to an "error of interpretation" of the  xcommercial limit rules by station personnel. With regard to the programlength commercials, you  xystate that the station initially relied on program advertisers and distributors to indicate whether  xcommercial matter in a children's program was related to the program, but such parties  xsometimes failed to notify WGNX(TV) regarding programrelated commercial matter in  x=children's programs; that in July, 1992, when WGNX(TV) discovered that it had broadcast five  xsuch programlength commercials, the station adopted policies and procedures to prevent  xrecurrence; and that, despite such policies and procedures, two additional programlength commercials were broadcast in the first quarter of 1994.   |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 Commission affirmed this policy, stating that "where the facts  xdemonstrate that a slight overage is caused by a lastminute emergency scheduling change, we  X- x will consider such a lapse to be 'de minimis.'" Children's Television Programming (Recon.),  X- xsupra 6 FCC Rcd at 5096.  However, it appears that the conventional overages involving  xx"mechanical failure" are attributable to human error by station personnel rather than the described  xj"mechanical failure[s]". For instance, a oneminute overage on March 16, 1992, is described as  x0occurring in connection with "a carting error in engineering" which caused a scheduled  xzcommercial announcement to be omitted. However, it appears that an overage occurred not  xbecause of the "carting error", but because a station employee inserted the missed spot in a  xsubsequent children's program. Similarly, a 45second overage on October 14, 1992, is described  xLas occurring in connection with "engineering problems" which caused a twominute delay in a  xprogram preceding the children's program in question. It appears that this overage occurred not  x because of "engineering problems", but because a station employee "dropped all promos"  x(promotional announcements, which are not considered "commercial matter" for the purpose of  xthe children's television commercial limits), while leaving intact the commercial load in the  xlsubsequent children's program. The Commission has consistently rejected human error,  xinadvertence and/or misunderstanding of the children's television commercial limit rules and  X#- xpolicies as a basis for excusing violations of the children's television commercial limits. See,  Xh$- xe.g., UTV of San Francisco, Inc. (KBHKTV), 10 FCC Rcd 10986, 10987 & Note 1 (1995); Le  XQ%- xSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977, 4978 (1995); Buffalo Management  X:&- x^Enterprises Corp. (WIVBTV), 10 FCC Rcd 4959, 4960 (1995); Gannett Massachusetts  X#'- xBroadcasting, Inc. (WLVITV), 9 FCC Rcd 1555 (1994); Ramar Communications, Inc.  X (- x(KJTV(TV)), 9 FCC Rcd 1831 (1994); Channel 12 of Beaumont, Inc. (KBMTTV), 9 FCC Rcd" (,))qq&"  X- xO1825; WKBD, Inc., 8 FCC Rcd 5079 (1993). Accordingly, the "mechanical failure[s]"  xdescribed in WGNX(TV)'s renewal application cannot be considered to be extenuating circumstances which would mitigate the resulting commercial overages.   xWGNX(TV)'s record during the last license term of exceeding the Commission's  x=commercial limits on children's television programming on 26 occasions constitutes a repeated  xjviolation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b)  xof the Communications Act, WGNX, Inc., is hereby advised of its apparent liability for forfeiture  xZin the amount of fourteen thousand dollars ($14,000) for its apparent repeated violation of Section  x73.670 of the Commission's Rules. The amount specified was reached after consideration of the  xfactors set forth in Section 503(b)(2) of the Communications Act, and, in particular, the following  xcriteria: (1) the number of instances of commercial overages; (2) the length and nature of each  xsuch overage; (3) the period of time over which such overages occurred; (4) whether or not the  xlicensee established an effective program to ensure compliance; and (5) the specific reasons that  xthe licensee gives for the overages. These criteria are appropriate in analyzing violations of the  X - xcommercial limits during children's programming, since they take into account, inter alia, "the  xynature, circumstances, extent, and gravity of the violation, and, with respect to the violator, the  Xy- xdegree of culpability", as required under 503(b)(2)(D) of the Communications Act. See Clear  Xb- xkChannel Television, Inc. (KTTU(TV)), 10 FCC Rcd 3773 (1995); Northstar Television of Erie,  XK-Inc. (WSEETV), 10 FCC Rcd 3779 (1995).   xWGNX(TV) violated the children's television commercial limits on 26 occasions. This  xLis a high number of violations. Further, violations occurred from January 9, 1992 through May  x.3, 1994, an extended period of two years and four months. When the Commission delayed the  xeffective date of Section 73.670 of the Rules until January 1, 1992, we stated that "giving the  xadditional time to broadcasters and cable operators before compliance with the commercial limits  xis required will have the effect of enabling broadcasters and cable operators to hone their plans  X- xto ensure compliance...." Children's Television Programming, supra 6 FCC Rcd at 5530 n.10.  xAlthough WGNX(TV) appears to have made some effort to comply with the Commission's  xchildren's television commercial limits, that effort apparently was not sufficient in light of the  xmviolations described in the station's renewal application. You have not proffered any  xextraordinary transitional or other difficulties that would have prevented Station WGNX(TV)  xfrom complying with the children's television commercial limitations during the last license  xzperiod. Rather, the conventional violations reported in WGNX(TV's renewal application are  xLattributable to human error or station employees' misunderstanding of the children's television  x commercial limit rules and policies. As discussed above, the Commission has consistently  x.rejected human error and misunderstanding as a basis for excusing violations of the children's  xtelevision commercial limits. The fact that WGNX(TV) may have implemented policies to  xprevent subsequent violations of the Commission's children's television rules and policies does  X#- xKnot relieve the licensee of liability for violations which have occurred. International Broadcasting  Xh$- xCorp., 19 FCC 2d 793, 794 (1969); KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993); R&R Media  XQ%- 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 (1995). " (,))qq&"Ԍ  #xFinally, seven of the violations were programlength commercials. Congress was  xparticularly concerned about programlength commercials because young children often have  xLdifficulty distinguishing between commercials and programs. S. Rep. No. 227, 101st Cong., 1st  xSess. 24 (1989). Overages of this frequency and magnitude mean that children have been  x.subjected to commercial matter greatly in excess of the limits contemplated by Congress when  X- xit enacted the Children's Television Act of 1990. Children's Television Programming, supra 6  xFCC Rcd at 211718. You assert that the programlength commercial violations occurred because  xof the failure of program advertisers and/or distributors to indicate that commercial matter in a  xchildren's program was related to the program. However, the Commission has consistently held  xthat a licensee's reliance on a program's source or producer for compliance with the children's  X - xtelevision rules and policies will not excuse or mitigate violations which do occur. See, e.g., Max  X - xTelevision of Syracuse, L.P. (WSYT(TV)), 10 FCC Rcd 8905 (1995); Mt. Mansfield Television,  X - xzInc. (WCAXTV), 10 FCC Rcd 8797 (1995); Boston Celtics Broadcasting Limited Partnership  X - x(WFXT(TV)), 10 FCC Rcd 6686 (1995). Consideration of all of these factors warrants a  X - xforfeiture in the abovespecified amount of $14,000. Cf., Paramount Stations Group of Kerrville,  X - xInc. (KRRT(TV)), 8 FCC Rcd 7064 (1993)($15,000 forfeiture for 28 overages, including eight  X- x.programlength commercials); Act III Broadcasting License Corporation (WUHF(TV)), 10 FCC Rcd 8799 (1995)($15,000 forfeiture for 37 overages, including six programlength commercials).   xYou are afforded a period of thirty (30) days from the date of this letter "to show, in  xkwriting, why a forfeiture penalty should not be imposed or should be reduced, or to pay the  x=forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced  x>shall include a detailed factual statement and such documentation and affidavits as may be  xpertinent." Section 1.80(f)(3) of the Commission's Rules, 47 C.F.R. 1.80(f)(3). Other relevant  xLprovisions of Section 1.80(f)(3) of the Commission's Rules are summarized in the attachment to this letter.   {xNotwithstanding the substantial nature of the violations described here and the severity  xwith which we regard them, we find you qualified to remain a Commission licensee and conclude  xthat grant of your application would serve the public interest, convenience and necessity.  xTherefore, the license renewal application of WGNX, Inc., for Station WGNX(TV), Atlanta, GA, File No. BRCT961202LH, IS HEREBY GRANTED.  X - x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Roy J. Stewart x` `  hh@Chief, Mass Media Bureau Enclosures cc: Mark D. Schneider, Esq. "#',))qq%"  X-  }:v< #n6X@`7Fc&@#$// WGNX, INC., WGNX(TV)(Atlanta, GA) DA 971445 //$ $/ 300.503(b) FORFEITURES (NAL) /$  }:<$/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$#x6X@`7>fX@#  ?R< #x6X@`7>fX@#  ? <#x6X@`7>fX@#  ?r <#x6X@`7>fX@#    ?: <#x6X@`7>fX@#  ? <#x6X@`7>fX@#