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Licensee, WOIO(TV) 1660 West Second Street 800 Skylight Office Tower Cleveland, OH 441131495 Dear Licensee:   xThis letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in  xthe amount of ten thousand dollars ($10,000) pursuant to Section 503(b) of the Communications  xyAct of 1934, as amended, 47 U.S.C. 503(b), under authority delegated to the Chief of the Mass  xlMedia Bureau by Section 0.283 of the Commission's Rules, 47 C.F.R. 0.283, for repeated  xviolations of the Commission's rule limiting the amount of commercial matter that may be aired during children's programming.   xIn the Children's Television Act of 1990, Pub. L. No. 101437, 104 Stat. 9961000,  X- xcodified at 47 U.S.C. Sections 303a, 303b and 394, Congress directed the Commission to adopt  X|- x[rules, inter alia, limiting the amount of commercial matter that television stations may air during  xchildren's programming, and to consider in its review of television license renewals the extent  xto which the licensee has complied with such commercial limits. Pursuant to this statutory  xmandate, the Commission adopted Section 73.670 of the Rules, 47 C.F.R. 73.670, which limits  x the amount of commercial matter which may be aired during children's programming to 10.5  xminutes per hour on weekends and 12 minutes per hour on weekdays. The Commission also  xreaffirmed and clarified its longstanding policy against "programlength commercials". The  xCommission defined a "programlength commercial" as "a program associated with a product, in  x<which commercials for that product are aired", and stated that the entire duration of any program x/length commercial would be counted as commercial matter for the purpose of the children's  X"- xtelevision commercial limits. Children's Television Programming, 6 FCC Rcd 2111, 2118, recon.  X#- x0granted in part, 6 FCC Rcd 5093, 5098 (1991). The commercial limits became effective on  Xh$-January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991).   ^xOn May 30, 1997, you filed an application for renewal of license (FCC Form 303S) for  xMStation WOIO(TV), Shaker Heights, OH (File No. BRCT970530KP). In response to Section  xIII, Question 4 of that application you indicate that during the previous license term WOIO(TV) failed to comply with the limitations on commercial matter in children's programming specified "(,**qq'"  xin Section 73.670 of the Commission's Rules. In Exhibit 3 to that application you indicate that  xLbetween September 13, 1993, and October 1, 1994, WOIO(TV) violated the children's television  x>commercial limit rules and policies on six occasions. All six violations were programlength  xcommercials, which are attributed to (i) human error by station personnel and/or (ii) inclusion of  xLprogramrelated commercial matter in programs supplied to the station by program distributors  xand/or the Fox Television Network. You state that the station took steps to prevent recurrence of such violations in the future.   2xWOIO(TV)'s record of exceeding the children's television commercial limits on six  x.occasions during the last license term constitutes a repeated violation of Section 73.670 of the  xCommission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act,  xMalrite Communications Group, Inc., is hereby advised of its apparent liability for forfeiture in  xthe amount of ten thousand dollars ($10,000) for its apparent repeated violation of Section 73.670  xof the Commission's Rules. The amount specified was reached after consideration of the  xfollowing criteria: (1) the number of instances of commercial overages; (2) the length and nature  xof each such overage; (3) the period of time over which such overages occurred; (4) whether or  x\not the licensee established an effective program to ensure compliance; and (5) the specific  xkreasons that the licensee gives for the overages. These criteria are appropriate in analyzing  xviolations of the commercial limits during children's programming, since they take into account,  X4- xinter alia, "the nature, circumstances, extent, and gravity of the violation, and, with respect to the  X-violator, the degree of culpability", as required under 503(b)(2)(D) of the Communications Act., B yO- xԍ In United States Telephone Ass'n. v. FCC, 28 F3rd 1232 (D.C. Cir. 1994), the U.S. Court of Appeals for the  yO^- xYDistrict of Columbia set aside Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon.  yO&- xhdenied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993), stating that the guidelines for assessing forfeitures  x=established therein must be subject to public comment to comply with the Administrative Procedure Act. In  yO- xMaccordance with the court's decision, the Commission released Forfeiture Guidelines Notice of Proposed  yO~- x;Rulemaking in CI Docket No. 956, 10 FCC Rcd 2945 (1995). After receiving and considering comments from the  yOF- xhpublic in that proceeding, the Commission adopted Forfeiture Guidelines Report and Order in CI Docket No. 956,   yO- x  FCC Rcd  (FCC 97218, adopted June 19, 1997, released July 28, 1997)("Forfeiture Guidelines"). Forfeiture  yO- xGuidelines, id., will become effective on October 14, 1997. 62 Fed. Reg. 43474 (August 14, 1997). In accordance  yO- xwith Paragraph 49 of Forfeiture Guidelines, supra, the Commission will continue to use the casebycase approach  xfor violations that occurred before the effective date of that Report and Order. Under this approach, the Commission  yO.- xJconsiders the criteria developed under Section 503 and applied by the Commission in previous cases. See, e.g., Clear  yO- xhChannel Television, Inc. (KTTU(TV)), 10 FCC Rcd 3773, 3774 (1995); Northstar Television of Erie, Inc. (WSEE yO-TV), 10 FCC Rcd 3779, 3780 (1995).#x6X@`7>fX@#,   ]xAll six of the violations by WOIO(TV) were programlength commercials. Congress was  xparticularly concerned about programlength commercials because young children often have  xLdifficulty distinguishing between commercials and programs. S. Rep. No. 227, 101st Cong., 1st  xSess. 24 (1989). Overages of this number and nature mean that children have been subjected to  xcommercial matter greatly in excess of the limits contemplated by Congress when it enacted the  x?Children's Television Act of 1990. The fact that some of the programlength commercial violations may have occurred in programming supplied to the station by program distributors or "e ,))qq"  xKthe Fox Television Network does not absolve WOIO(TV) of responsibility for the violations. The  x.Commission has consistently held that a licensee's reliance on a program's source or producer  xfor compliance with our children's television rules and policies will not excuse or mitigate  X- xzviolations which do occur. See, e.g., Max Television of Syracuse, L.P. (WSYT(TV)), 10 FCC  X- x.Rcd 8905 (1995); Mt. Mansfield Television, Inc. (WCAXTV), 10 FCC Rcd 8797 (1995); Boston  Xv-Celtics Broadcasting Limited Partnership (WFXT(TV)), 10 FCC Rcd 6686 (1995).   xIn addition, the violations occurred from September 13, 1993, through October 1, 1994,  xa period of over one year. When the Commission delayed the effective date of Section 73.670  xof the Rules from October 1, 1991, until January 1, 1992, we stated that "giving the additional  xtime to broadcasters and cable operators before compliance with the commercial limits is required  x=will have the effect of enabling broadcasters and cable operators to hone their plans to ensure  X - xcompliance...." Children's Television Programming, supra 6 FCC Rcd at 5530 n.10. Although  xit appears that WOIO(TV) made an effort to comply with the children's television commercial  xjlimit rules and policies, it is apparent that that effort was not sufficient in view of the violations  x[reported in the stations' renewal applications. The Commission has repeatedly rejected human  xerror and/or inadvertence as a basis for excusing violations of the children's television  Xb- xcommercial limits. See, e.g., UTV of San Francisco, Inc. (KBHKTV), 10 FCC Rcd 10986,  XK- xN10987 & Note 1; Le Sea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977, 4978 (1995);  X4- x Buffalo Management Enterprises Corp. (WIVBTV), 10 FCC Rcd 4959, 4960 (1995); Gannett  X- xMassachusetts Broadcasting, Inc. (WLVITV), 9 FCC Rcd 1555 (1994); Ramar Communications,  X- xInc. (KJTV(TV)), 9 FCC Rcd 1831 (1994); Channel 12 of Beaumont, Inc. (KBMTTV), 9 FCC  X- xRcd 1825; WKBD, Inc., 8 FCC Rcd 5079 (1993). Finally, the fact that WOIO(TV) may have  ximplemented policies to prevent subsequent violations of the Commission's children's television  xrules and policies does not relieve the licensee of liability for violations which have occurred.  X- xInternational Broadcasting Corp., 19 FCC 2d 793, 794 (1969); KBHKTV, supra 10 FCC Rcd  X- xat 10988; KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993); R&R Media Corporation (WTWS(TV)),  X|- x9 FCC Rcd 1715, 1716 (1994); Mountain States Broadcasting, Inc. (KMSBTV), 9 FCC Rcd  Xe- xl2545, 2546 (1994); WHP Television, L.P., 10 FCC Rcd 4979, 4980 (1995). Consideration of  XN- xall of these factors warrants a forfeiture in the abovespecified amount of $10,000. Cf.,  X7- x=Chesapeake Television Licensee, Inc. (WBFF(TV)), __ FCC Rcd __ (Chief, MMB NAL DA 97 x292, adopted February 7, 1997, released February 10, 1997)($10,000 forfeiture for five program X - xzlength commercials); Huntsville Television Acquisition Corp. (WZDX(TV)), __ FCC Rcd __  xm(Chief, MMB NAL DA 971446, adopted July 10, 1997, released July 14, 1997)($10,000 forfeiture for seven overages, including four programlength commercials).   xYou are afforded a period of thirty (30) days from the date of this letter "to show, in  xkwriting, why a forfeiture penalty should not be imposed or should be reduced, or to pay the  x=forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced  x>shall include a detailed factual statement and such documentation and affidavits as may be  xpertinent." Section 1.80(f)(3) of the Commission's Rules, 47 C.F.R. 1.80(f)(3). Other relevant  xLprovisions of Section 1.80(f)(3) of the Commission's Rules are summarized in the attachment to this letter. " (,))qq&"Ԍ   {xNotwithstanding the substantial nature of the violations described here and the severity  xwith which we regard them, we find you qualified to remain a Commission licensee and conclude  xthat grant of your application would serve the public interest, convenience and necessity.  xTherefore, the license renewal application of Malrite Communications Group, Inc., for Station WOIO(TV), Shaker Heights, OH (File No. BRCT970530KP), IS HEREBY GRANTED.  Xv- x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Roy J. Stewart x` `  hh@Chief, Mass Media Bureau Enclosures cc: Allan G. Moskowitz, Esq.",))qqV"  X- kwoiofr2.rel #x6X@`7>fX@# #n6X@`7Fc&@#  ?<#x6X@`7>fX@# MSolberg/dsb/vsd/MMB n:\msolberg\kwoiofr2.rel  }:< #n6X@`7Fc&@#$// MALRITE COMMS GP, INC., WOIO(TV) (Shaker Heights, OH) DA 972314 //$ $/ 300.503(b) FORFEITURES (NAL) /$  }: <$/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$#x6X@`7>fX@#  ? < #x6X@`7>fX@# #x6X@`7>fX@#  ?<#x6X@`7>fX@#    ?<