******************************************************** 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 September 29, 1997 Released: September 30, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Television Marketing Group of Memphis, Inc. Licensee, WLMT(TV) and WMTU(TV) 2701 Union Avenue Extended Memphis, TN 38112 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of twelve thousand five hundred dollars ($12,500) 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 ("CTA"), 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. Accordingly, 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 against "program-length commercials". The Commission defined a "program-length commercial" as "a program associated with a product, in which commercials for that product are aired", and stated that the entire duration of any 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 applications for renewal of licenses (FCC Forms 303-S) for Stations WLMT(TV), Memphis, TN (BRCT-970401LA), and WMTU(TV), Jackson, TN (BRCT-970401LB). In response to Section III, Question 4 of those applications you state that during the previous license term WLMT(TV) and WMTU(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 3 to those applications you indicate that between August 16, 1993, and October 7, 1996, WLMT(TV) and WMTU(TV) violated the children's television commercial limit rules and policies on 14 occasions. Of these 14 violations, nine were 30 seconds in duration; one was one minute in duration; and four were program-length commercials. You explain that all of the violations occurred as a result of "inadvertent human error"; and that after each violation was discovered the stations' management established policies and procedures to prevent recurrence. WLMT(TV) and WMTU(TV)'s record of exceeding the children's television commercial limits on 14 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, Television Marketing Group of Memphis, Inc., is hereby advised of its apparent liability for forfeiture in the amount of twelve thousand five hundred dollars ($12,500) for its apparent repeated violation of Section 73.670 of the Commission's Rules. The amount specified was reached after consideration of 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. WLMT(TV) and WMTU(TV) exceeded the children's television commercial limits on 14 occasions. This is a significant number of violations. In addition, 4 of the violations were program-length commercials. Overages of this number and nature 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 only explanation proferred for the violations is "inadvertent human error". 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). Further, the violations occurred from August 16, 1993, through October 8, 1996, an extended period of three years and two 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 it appears that WLMT(TV) and WMTU(TV) made an effort to comply with the children's television commercial limit rules and policies, it is apparent that that effort was not sufficient in view of the violations reported in the stations' renewal applications. The fact that WLMT(TV) and WMTU(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); 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 $12,500. Cf., 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 children's television commercial limit 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 applications of Television Marketing Group of Memphis, Inc., for renewal of licenses for Stations WLMT(TV), Memphis, TN (BRCT-970401LA), and WMTU(TV), Jackson, TN (BRCT-970401LB), are hereby GRANTED. Sincerely, Roy J. Stewart Chief, Mass Media Bureau Enclosure cc: William S. Barnard, Esq. kwlmtuf2.rel MSolberg/dsb/vsd/MMB n:\msolberg\kwlmtuf2.rel $// TELVSN MRKTNG GP OF MEMPHIS, WLMT(TV)(Memphis, TN) & WMTU(TV) (Jackson, TN) DA 97-2109 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$