Federal Communications Commission Washington, D.C. 20554 October 6, 1997 Released: October 8, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Independent Television Company Licensee, WDRB-TV 624 West Muhammad Ali Boulevard Louisville, KY 40204 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of seventeen thousand five hundred thousand dollars ($17,500) 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, 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 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 an application for renewal of license (FCC Form 303-S) for Station WDRB-TV, Louisville, KY (BRCT-970401KJ). In response to Section III, Question 4 of that application you indicate that during the previous license term WDRB-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 2 to that application you state that during the previous license term WDRB-TV violated the children's television commercial limits on 67 occasions. However, Exhibit 2 specifies dates and times for 68 violations between September 26, 1992, and September 11, 1996. Of the 68 listed overages, eight were less than 30 seconds in duration; 28 were 30 seconds or longer but less than one minute in duration; 12 were one minute or longer but less than one minute and 30 seconds in duration; 11 were one minute and 30 seconds in duration; one was two minutes and five seconds in duration; six were two minutes and fifteen seconds in duration; and two were program-length commercials. The overages are attributed to inadvertence and/or human error. Finally, you state that the station has "instituted rigid controls" to prevent a recurrence of the violations. WDRB-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on 68 occasions constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Independent Television Company is hereby advised of its apparent liability for forfeiture in the amount of seventeen thousand five hundred thousand dollars ($17,500) 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. WDRB-TV exceeded the children's television commercial limitations on 68 occasions. This is a very high number of violations. In addition, 30 of the overages were one minute or longer in duration and two 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 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. Further, the violations occurred over an extended period of almost four years. 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. In view of the violations listed and the explanations offered in your renewal application, it is clear that WDRB-TV initially did not establish an effective program to monitor compliance with the children's television commercial limitations, and failed to rectify this deficiency for almost four years. The Commission has consistently 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; 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 WDRB-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). Consideration of all of these factors warrants a forfeiture in the above-specified amount of $17,500. Cf., Christel Broadcasting, Inc. (WAWB(TV)), 12 FCC Rcd 1363 (1997)($15,000 forfeiture for 50 commercial overages, including two program-length commercial/host-selling violations). 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 Independent Television Company, for renewal of license for Station WDRB-TV, Louisville, KY (BRCT-970401KJ), is hereby GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosure cc: Elizabeth A. McGeary, Esq. kwdrbfr2.rel MSolberg/dsb/vsd/MMB n:\msolberg\kwdrbfr2.rel $// INDEPENDENT TELEVISION CO, WDRB-TV (Louisville, KY) DA 97-2158 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$