Federal Communications Commission Washington, D.C. 20554 October 28, 1997 Released: October 29, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Fant Broadcasting of Ohio, Inc. Licensee, WWHO(TV) 2154 Highland Ave., SO. Birmingham, AL 35202-4002 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. 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 June 2, 1997, you filed an application for renewal of license (FCC Form 303-S) for Station WWHO(TV), Chillicothe, OH (File No. BRCT-970602MB). In response to Section III, Question 4 of that application you state that during the previous license term WWHO(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 3 to that application you state that WWHO(TV) violated the children's television commercial limits by broadcasting program-length commercials on five occasions between May 24, 1994, and February 5, 1997. You assert that the violations occurred as a result of inadvertence and/or human error; and that after the violations were discovered, procedures were modified and/or personnel were instructed to prevent recurrence. WWHO(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming by broadcasting program-length commercials on five occasions constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Fant Broadcasting of Ohio, Inc., 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 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. All five of the violations at WWHO(TV) 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. The only reason for the overages proffered by WWHO(TV), inadvertence and/or human error, do not mitigate or excuse such violations. Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (1995); Buffalo Management Enterprises Corp. (WIVB- TV), 10 FCC Rcd 4959 (1995); Le Sea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995). Finally, the fact that WWHO(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); UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10986, 10988 (1995); 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., Chesapeake Television Licensee, Inc. (WBFF(TV)), __ FCC Rcd __ (Chief, MMB NAL DA 97-292, adopted February 7, 1997, released February 10, 1997)($10,000 forfeiture for five program-length commercials); Huntsville Television Acquisition Corp. (WZDX(TV)), __ FCC Rcd __ (Chief, MMB NAL DA 97-1446, adopted July 10, 1997, released July 14, 1997)($10,000 forfeiture for seven 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 Fant Broadcasting of Ohio, Inc., for renewal of license for Station WWHO(TV), Chillicothe, OH (File No. BRCT-970602MB), IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Kathleen Victory, Esq. kwwhofr2.rel MSolberg/dsb/vsd/MMB n:\msolberg\kwwhofr2.rel $// FANT BCSTNG OF OHIO, INC., WWHO(TV) (CHILLICOTHE, OH) DA 97- 2278 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$