******************************************************** 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 August 8, 1997 Released: August 11, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Max Television of Tri-Cities L.P. Licensee, WEMT(TV) P.O. Box 3489 CRS Johnson City, TN 37604 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, 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. Therefore, 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 minutes and 30 seconds 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 April 1, 1997, you filed an application for renewal of license (FCC Form 303-S) for Station WEMT(TV), Greeneville, TN (BRCT-970401KL). In response to Section III, Question 4 of that application you state that during the previous license term WEMT(TV) failed to comply with the limits on commercial matter in children's programming specified in Section 73.670 of the Commissions Rules. In Exhibit 4 to that application you indicate that between March 19, 1994, and January 28, 1995, WEMT(TV) exceeded the children's television commercial limits on 30 occasions. Of these overages, one was 10 seconds in duration; nine were 30 seconds in duration; two were one minute in duration; one was one minute and ten seconds in duration; three were one minute and 30 seconds in duration; four were two minutes in duration; four were two minutes and 30 seconds in duration; two were three minutes in duration; three were three minutes and 30 seconds in duration; and one was a program-length commercial. With regard to the program-length commercial, you state that on March 19, 1994, WEMT(TV) aired a program supplied by the Fox Television Network entitled "Tazmania"; that the program contained a commercial announcement for a breakfast cereal which featured the program's character "Taz"; and that both WEMT(TV) and the Fox Television Network had instituted procedures to prevent a recurrence of this type of violation. You further state that all of the conventional overages "were the direct result of a single mistake" made by a station employee who filled the breaks between children's programs with commercial matter rather than "station identification and promotion of other programming"; and that when these overages were discovered the station implemented policies and procedures to prevent further violations. WEMT(TV)'s record of exceeding the Commission's commercial limits on children's television programming on 30 occasions during the last license term constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Max Television of Tri-Cities L.P. 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). WEMT(TV) exceeded the children's television commercial limits on 30 occasions. This is a significant number of violations. In addition, 19 of the overages were greater than one minute in duration, and 13 of those were greater than two minutes in duration. Another of the violations was a program-length commercial. Overages of this number, 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). The fact that the program-length commercial occurred in programming supplied by the Fox Television Network does not absolve WEMT(TV) of responsibility for the violation. The Commission has consistently held that a licensee's reliance on a program's source or producer 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). Further, the violations occurred regularly over a period of 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. Although WEMT(TV) appears to have made some effort to comply with the Commission's children's television commercial limits, it is apparent that the station's effort was not sufficient to ensure compliance in view of the fact that the 29 conventional overages began in April, 1994, and were not detected until January, 1995. The Commission has repeatedly rejected human error and/or inadvertence 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 WEMT(TV) (and/or the Fox Television Network) 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 $10,000. Cf., Post-Newsweek Stations, Florida, Inc. (WJXT(TV)), 12 FCC Rcd 4178 (1997) ($10,000 forfeiture for 30 violations, including one program-length commercial). 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. Accordingly, the application of Max Television of Tri-Cities L.P., for renewal of license for Station WEMT(TV), Greeneville, TN (BRCT-970401KL), is hereby GRANTED. Sincerely, Roy J. Stewart Chief, Mass Media Bureau cc: William M. Barnard, Esq. kwemtfr2.sec $// MAX TLVSN OF TRI-CITIES LP, WEMT(TV) (Greeneville, TN) DA 97-1702 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$