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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 Released: September 22, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED North Carolina Broadcasting Partners Licensee, WCCB(TV) One Television Place Charlotte, NC 28205 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of twenty five thousand dollars ($25,000) pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. 503(b), 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. 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 August 1, 1996, you filed an application for renewal of license (FCC Form 303-S) for station WCCB(TV), Charlotte, NC (BRCT-960801KV). In response to Section III, Question 4 of that application you indicate that during the previous license term WCCB(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 that application you state that between April 1, 1993, and September 17, 1993, WCCB(TV) exceeded the children's television commercial limits on 52 occasions. Of these 52 commercial overages, 17 were less than 30 seconds in duration; 22 were 30 seconds or longer but less than one minute in duration; nine were one minute or longer but less than one and one-half minutes in duration; three were one and one-half minutes in duration; and one was two and one-half minutes in duration. You explain that the station had purchased a "new and unproven [computerized] traffic system"; that the vendor of that system had informed the station that the system's software would monitor the commercial matter in children's television programming, "including national barter commercials"; that, although WCCB's staff had "correctly identified and entered national barter commercials into the traffic computer," the computer "did not treat national barter spots as commercial material for the purposes of compliance with" the children's television commercial limits; and that the 52 commercial overages in question occurred "as a result of this flaw in the traffic system software...." In addition, Exhibit 3 lists five overages attributed to "human error" which occurred between October 1993 and May 1994. Of these five additional "human error" overages, one was 10 seconds in duration; one was 30 seconds in duration; one was one minute in duration; one was one and one-half minutes in duration; and one was two minutes in duration. Further, Exhibit 3 lists six program-length commercials broadcast by WCCB(TV) between September 29, 1994, and March 31, 1995. You state that these violations "occurred because the pre- air screening procedures in place at the time were apparently not being followed in every case"; and that starting in March, 1995, the station instituted procedures to prevent recurrence of violations of the children's television commercial limits. Finally, you describe seven incidents which involve material in commercial announcements related to programs, but you assert that these incidents were not program-length commercials. You state that in the spring of 1994 WCCB(TV) sponsored a "Kids Fair" which "involv[ed] the appearance of an 'X-Men' character and a 'Mighty Morphin Power Rangers' ["MMPR"] comic book illustrator"; and that on six occasions between March 17, and March 26, 1994, during or adjacent to broadcasts of "X-Men" or "MMPR" programs, WCCB(TV) aired promotional announcements for the "Kids Fair" which mentioned the appearance of the "X- Men" character and the "MMPR" comic book illustrator and included video clips from each of those shows. However, you quote the Commission's definition of a program-length commercial, "a program associated with a product, in which commercials for that product are aired", and you assert that the six "X-Men"/"MMPR" programs were not program-length commercials because, although the programs "may be associated with products, the promo at issue here did not endorse or promote those products in any way", but, "[i]nstead, the promo was intended to and did in fact promote the Kids Fair itself." As a preliminary matter, we consider your contention that eight incidents involving material in commercial announcements related to adjacent programs were not program-length commercials. You assert that "the 'product' at issue--the Kids Fair--was totally unrelated to the X-Men and Power Rangers shows." However, the fact that the "product" directly promoted in the advertisement in question was a "Kids Fair" does not alter the facts that (i) the appearance/performance by the "X- Men" character and the "MMPR" illustrator was clearly presented in the advertisement as one of the attractions at the "Kids Fair"; (ii) the appearance by the "X-Men" character and the "MMPR" illustrator and the inclusion of clips from the programs in the advertisement clearly were intended to, and did, promote their appearance at the "Kids Fair"; and (iii) any appearance/performance by an "X-Men" character and an "MMPR" illustrator is clearly related to the programs "X-Men" and "MMPR". Accordingly, the programs in question must be considered program-length commercials. Cf., UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10986 (1995). The record in this proceeding indicates that during the last license term WCCB(TV) exceeded the limits on commercial matter in children's programming on 71 occasions. This constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, North Carolina Broadcasting Partners is hereby advised of its apparent liability for forfeiture in the amount of twenty five thousand dollars ($25,000) 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. Initially we note that the violations occurred from April 1, 1993 to March 31, 1995, an extended period of two 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 in WCCB(TV)'s renewal application, it is clear that the station initially did not establish an effective program to monitor compliance with the children's television commercial limitations, and failed to rectify this deficiency for two years. 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). Finally, the fact that WCCB(TV) may have belatedly 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). Further, WCCB(TV) exceeded the children's television commercial limitations on 71 occasions. This is a very high number of violations. Notably, 14 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. Consideration of all of these factors warrants a forfeiture in the above-specified amount of $25,000. Cf., Paramount Stations Group of Washington, Inc. (WDCA(TV)), FCC Rcd (Chief, MMB NAL DA 97-391, adopted February 14, 1997, released February 26, 1997); Paramount Stations Group of Philadelphia, Inc. (WTXF(TV)), 10 FCC Rcd 6710 (1995). In Paramount/WDCA(TV), supra, a forfeiture of $15,000 was assessed for 20 instances of commercial overages, 11 of which were program-length commercials. In Paramount/ WTXF(TV), supra, a forfeiture of $15,000 was assessed for 52 instances of commercial overages, six of which were program-length commercials. The violations in the instant case (71 overages, including 14 program-length commercials) are substantially more significant than those in the above cited cases; a $25,000 forfeiture would be proportionate to and consistent with the forfeitures assessed in those cases. 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 North Carolina Broadcasting Partners, for renewal of license for Station WCCB(TV), Charlotte, NC (BRCT-960801KV), is hereby GRANTED. This letter was adopted by the Commission on September 11, 1997. BY DIRECTION OF THE COMMISSION William F. Caton Acting Secretary Enclosure