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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 August 8, 1997 Released: August 11, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED IMS Broadcasting, LLC Licensee, WNDY-TV 4555 West 16th Street Indianapolis, IN 46222 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 10.5 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 March 28, 1997, you filed an application for renewal of license (FCC Form 303-S) for station WNDY-TV, Marion, IN (File No. BRCT-970328LC). In response to Section III, Question 4 of that application you state that during the previous license term WNDY-TV failed to comply with the limitations on commercial matter in children's programming specified in Section 73.670 of the Commissions Rules. In Exhibit 303.III.4.c-1 to that application you indicate that WNDY-TV violated the children's television commercial limits on 9 occasions between September 3, 1995, and October 4, 1996. Of the nine violations, one was 30 seconds in duration; one was 45 seconds in duration; four were one minute and 30 seconds in duration; and three were program-length commercials. You explain that the reported violations occurred as a result of human error and/or inadvertence, and you state that station personnel have been instructed and procedures have been modified to prevent recurrence. WNDY-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on nine occasions constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, IMS Broadcasting, LLC, 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). Although WNDY-TV appears to have made an effort to comply with the Commission's children's television commercial limits, that effort apparently was not sufficient in light of the human error violations reported in the station's renewal application. 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 (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); WKBD, Inc., 8 FCC Rcd 5079 (1993). The fact that WNDY-TV may have implemented policies and procedures to prevent subsequent violations of the Commission's children's television rules 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). In addition, three 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 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. Children's Television Programming, supra 6 FCC Rcd at 2117-18. Consideration of all of these factors warrants a forfeiture in the above-specified amount of $10,000. Cf., WPIX, Inc., 10 FCC Rcd 8911 (1995) ($10,000 forfeiture for nine overages, including five program-length commercials); Fox Television Stations, Inc. (WTTG(TV)), 12 FCC Rcd 1357 (1997)($10,000 forfeiture for eight overages, including three program-length commercials); Chesapeake Television Licensee, Inc. (WBFF(TV)), __ FCC Rcd ____ (MMB NAL DA 97-292, adopted February 7, 1997, released February 10, 1997) ($10,000 forfeiture for five overages, including four 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. Accordingly, the application of IMS Broadcasting, LLC, for renewal of license for Station WNDY-TV, Marion, IN (File No. BRCT-970328LC), is hereby GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Peter Siembab, Esq. kwndyfr2.sec $// IMS BCSTNG, LLC, WNDY-TV (Marion, IN) DA 97-1703 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$