WPCw 2?BJZECourier3|j#d6X@`7s@#HP LaserJet 4M (PCL) ROOM 712HPLA4MPC.PRSx  @\=ρX@ r5-#d6X@`7s@#23Xq Z<?xxx,>x6X@`7X@<r5ddd,sd6X@`7@\ @^5q.$h';U7G;A 7Xn-6F[w!/DTck{3|jHP LaserJet 4M (PCL) ROOM 712HPLA4MPC.PRSXj\  P6G;\=ρXP2l :eKK75Times New RomanCourierTimes New Roman BoldCourier Bold"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN /t _I ` "i~'^#)0<8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""fx6X@`7X@ W!@(#,9h@\  P6G;hP H5!,,5\  P6G;,P<~9nnn,Fcn6X@`7&@}:nnn,-on `7&?xxx,-x `7X X   N X-w  Federal Communications Commission`(# FCC 97327 ă  yxdddy Federal Communications Commission Washington, D.C. 20554  X-`(# Released: September 22, 1997 ă  X_- CERTIFIED MAIL RETURN RECEIPT REQUESTED North Carolina Broadcasting Partners Licensee, WCCB(TV) One Television Place Charlotte, NC 28205 Dear Licensee:   xThis letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in  xthe amount of twenty five thousand dollars ($25,000) pursuant to Section 503(b) of the  xCommunications Act of 1934, as amended, 47 U.S.C. 503(b), for repeated violations of the  x=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- xrules, inter alia, limiting the number of minutes of commercial matter that television stations may  xair during children's programming, and to consider in its review of television license renewals  xthe extent to which the licensee has complied with such commercial limits. Accordingly, the  xzCommission adopted Section 73.670 of the Rules, 47 C.F.R. 73.670, which limits the amount  x>of commercial matter which may be aired during children's programming to 10.5 minutes per  xhour on weekends and 12 minutes per hour on weekdays. The Commission also reaffirmed and  xxclarified its longstanding policy against "programlength commercials". The Commission defined  x[a "programlength commercial" as "a program associated with a product, in which commercials  xfor that product are aired", and stated that the entire duration of any programlength commercial  x=would be counted as commercial matter for the purpose of the children's television commercial  X- xlimits. Children's Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6  xFCC Rcd 5093, 5098 (1991). The commercial limits became effective on January 1, 1992.  X -Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991).   xOn August 1, 1996, you filed an application for renewal of license (FCC Form 303S) for  xstation WCCB(TV), Charlotte, NC (BRCT960801KV). In response to Section III, Question 4  x<of that application you indicate that during the previous license term WCCB(TV) failed to comply  xzwith the limits on commercial matter in children's programming specified in Section 73.670 of  xthe Commissions Rules. In Exhibit 3 to that application you state that between April 1, 1993,  xand September 17, 1993, WCCB(TV) exceeded the children's television commercial limits on 52  xoccasions. Of these 52 commercial overages, 17 were less than 30 seconds in duration; 22 were  x.30 seconds or longer but less than one minute in   duration; nine were one minute or longer but  xless than one and onehalf minutes in duration; three were one and onehalf minutes in duration;"),**qqn("  xyand one was two and onehalf minutes in duration. You explain that the station had purchased  xia "new and unproven [computerized] traffic system"; that the vendor of that system had informed  x0the station that the system's software would monitor the commercial matter in children's  x.television programming, "including national barter commercials"; that, although WCCB's staff  xyhad "correctly identified and entered national barter commercials into the traffic computer," the  x!computer "did not treat national barter spots as commercial material for the purposes of  xcompliance with" the children's television commercial limits; and that the 52 commercial  xoverages in question occurred "as a result of this flaw in the traffic system software...." In  xaddition, Exhibit 3 lists five overages attributed to "human error" which occurred between  xOctober 1993 and May 1994. Of these five additional "human error" overages, one was 10  xseconds in duration; one was 30 seconds in duration; one was one minute in duration; one was one and onehalf minutes in duration; and one was two minutes in duration.   xFurther, Exhibit 3 lists six programlength commercials broadcast by WCCB(TV) between  xSeptember 29, 1994, and March 31, 1995. You state that these violations "occurred because the  xpreair screening procedures in place at the time were apparently not being followed in every  xKcase"; and that starting in March, 1995, the station instituted procedures to prevent recurrence of  xviolations of the children's television commercial limits. Finally, you describe seven incidents  xwhich involve material in commercial announcements related to programs, but you assert that  xthese incidents were not programlength commercials. You state that in the spring of 1994  xyWCCB(TV) sponsored a "Kids Fair" which "involv[ed] the appearance of an 'XMen' character  x and a 'Mighty Morphin Power Rangers' ["MMPR"] comic book illustrator"; and that on six  xoccasions between March 17, and March 26, 1994, during or adjacent to broadcasts of "XMen"  xor "MMPR" programs, WCCB(TV) aired promotional announcements for the "Kids Fair" which  xKmentioned the appearance of the "XMen" character and the "MMPR" comic book illustrator and  x-included video clips from each of those shows. However, you quote the Commission's definition  xof a programlength commercial, "a program associated with a product, in which commercials  xfor that product are aired", and you assert that the six "XMen"/"MMPR" programs were not  xprogramlength commercials because, although the programs "may be associated with products,  xthe promo at issue here did not endorse or promote those products in any way", but, "[i]nstead,  XN-the promo was intended to and did in fact promote the Kids Fair itself."vNB X- x[ԍ#Xj\  P6G; XP# In addition, you state that on September 30, 1994, adjacent to a broadcast of the "MMPR"  xprogram, the station aired a commercial announcement "for a General Mills candy product which  xmade brief reference to a trip giveaway to the set of the series..."; and that this commercial  x[included "a brief video clip from the show...." You assert that this incident was not a program xlength commercial for the same reason proffered with regard to the "Kids Fair" announcements,  XT"-i.e., because the announcement in question "did not promote any Power Ranger product."    xAs a preliminary matter, we consider your contention that eight incidents involving  xmaterial in commercial announcements related to adjacent programs were not programlength  xycommercials. You assert that "the 'product' at issuethe Kids Fairwas totally unrelated to the  X- xjXMen and Power Rangers shows." However, the fact that the "product" directly promoted in  xthe advertisement in question was a "Kids Fair" does not alter the facts that (i) the" ,))qq"  xzappearance/performance by the "XMen" character and the "MMPR" illustrator was clearly  xpresented in the advertisement as one of the attractions at the "Kids Fair"; (ii) the appearance by  xthe "XMen" character and the "MMPR" illustrator and the inclusion of clips from the programs  xin the advertisement clearly were intended to, and did, promote their appearance at the "Kids  x-Fair"; and (iii) any appearance/performance by an "XMen" character and an "MMPR" illustrator  xZis clearly related to the programs "XMen" and "MMPR". Accordingly, the programs in question  Xv- x=must be considered programlength commercials. Cf., UTV of San Francisco, Inc. (KBHKTV),  X_-10 FCC Rcd 10986 (1995)._B X- x.ԍ#Xj\  P6G; XP# For the same reason, the "MMPR"/General Mills candy commercial described in footnote  X -1, supra, must be considered a programlength commercial.   xThe record in this proceeding indicates that during the last license term WCCB(TV)  xexceeded 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,  xpursuant to Section 503(b) of the Communications Act, North Carolina Broadcasting Partners is  x/hereby advised of its apparent liability for forfeiture in the amount of twenty five thousand  xdollars ($25,000) for its apparent repeated violation of Section 73.670 of the Commission's Rules.  xThe amount specified was reached after consideration of the following criteria: (1) the number  xof instances of commercial overages; (2) the length and nature of each such overage; (3) the  xperiod of time over which such overages occurred; (4) whether or not the licensee established an  xjeffective program to ensure compliance; and (5) the specific reasons that the licensee gives for  xMthe overages. These criteria are appropriate in analyzing violations of the commercial limits  X4- xxduring children's programming, since they take into account, inter alia, "the nature, circumstances,  xjextent, and gravity of the violation, and, with respect to the violator, the degree of culpability",  X-as required under 503(b)(2)(D) of the Communications Act.ybB X- xM#Xj\  P6G; XP#э In United States Telephone Ass'n. v. FCC, 28 F3rd 1232 (D.C. Cir. 1994), the U.S. Court  X- xzof Appeals for the District of Columbia set aside Policy Statement, Standards for Assessing  X- xForfeitures, 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd  xk6215 (1993), stating that the guidelines for assessing forfeitures established therein must be  xsubject to public comment to comply with the Administrative Procedure Act. In accordance with  X- x{the court's decision, the Commission released Forfeiture Guidelines Notice of Proposed  X- xzRulemaking in CI Docket No. 956, 10 FCC Rcd 2945 (1995). After receiving and considering  Xx- xcomments from the public in that proceeding, the Commission adopted Forfeiture Guidelines  Xa - xReport and Order in CI Docket No. 956,   FCC Rcd  (FCC 97218, adopted June 19, 1997,  XJ!- xreleased July 28, 1997)("Forfeiture Guidelines"). Forfeiture Guidelines, id., will become effective  xon October 14, 1997. 62 Fed. Reg. 43474 (August 14, 1997). Consistent with Paragraph 49 of  X#- xForfeiture Guidelines, supra, the Commission will continue to use the casebycase approach for  xviolations that occurred before the effective date of that Report and Order. Under this approach,  xthe Commission considers the criteria developed under Section 503 and applied by the  X%- xCommission in previous cases. See, e.g., Clear Channel Television, Inc. (KTTU(TV)), 10 FCC  X&- xMRcd 3773, 3774 (1995); Northstar Television of Erie, Inc. (WSEETV), 10 FCC Rcd 3779, 3780  X'-(1995).#x6X@`7>fX@#ь",))qqt"Ԍ  1ԙxInitially we note that the violations occurred from April 1, 1993 to March 31, 1995, an  x/extended period of two years. When the Commission delayed the effective date of Section  x73.670 of the Rules from October 1, 1991, until January 1, 1992, we stated that "giving the  xadditional time to broadcasters and cable operators before compliance with the commercial limits  xis required will have the effect of enabling broadcasters and cable operators to hone their plans  X- xto ensure compliance...." Children's Television Programming, supra 6 FCC Rcd at 5530 n.10.  xIn view of the violations listed in WCCB(TV)'s renewal application, it is clear that the station  x0initially did not establish an effective program to monitor compliance with the children's  x?television commercial limitations, and failed to rectify this deficiency for two years. The  xCommission has repeatedly rejected human error and/or inadvertence as a basis for excusing  X - xviolations of the children's television commercial limits. See, e.g., UTV of San Francisco, Inc.  X - x(KBHKTV), 10 FCC Rcd 10986, 10987 & Note 1; Le Sea Broadcasting Corp. (WHKE(TV)),  X - x10 FCC Rcd 4977, 4978 (1995); Buffalo Management Enterprises Corp. (WIVBTV), 10 FCC  X - x=Rcd 4959, 4960 (1995); Gannett Massachusetts Broadcasting, Inc. (WLVITV), 9 FCC Rcd 1555  X - x(1994); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994); Channel 12 of  X - x/Beaumont, Inc. (KBMTTV), 9 FCC Rcd 1825; WKBD, Inc., 8 FCC Rcd 5079 (1993). Finally,  xthe fact that WCCB(TV) may have belatedly implemented policies to prevent subsequent  xviolations of the Commission's children's television rules and policies does not relieve the  Xb- xlicensee of liability for violations which have occurred. International Broadcasting Corp., 19 FCC  XK- x2d 793, 794 (1969); KBHKTV, supra 10 FCC Rcd at 10988; KEVN, Inc., 8 FCC Rcd 5077,  X4- xz5078 (1993); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (1994); Mountain  X- xStates Broadcasting, Inc. (KMSBTV), 9 FCC Rcd 2545, 2546 (1994); WHP Television, L.P., 10 FCC Rcd 4979, 4980 (1995).   xFurther, WCCB(TV) exceeded the children's television commercial limitations on 71  xoccasions. This is a very high number of violations. Notably, 14 of the violations were program xlength commercials. Congress was particularly concerned about programlength commercials  xbecause young children often have difficulty distinguishing between commercials and programs.  x=S. Rep. No. 227, 101st Cong., 1st Sess. 24 (1989). Overages of this nature and magnitude mean  x@that children have been subjected to commercial matter greatly in excess of the limits  xcontemplated by Congress when it enacted the Children's Television Act of 1990. Consideration  X7- x{of all of these factors warrants a forfeiture in the abovespecified amount of $25,000. Cf.,  X - xParamount Stations Group of Washington, Inc. (WDCA(TV)),   FCC Rcd   (Chief, MMB  X - xNAL DA 97391, adopted February 14, 1997, released February 26, 1997); Paramount Stations  X- xGroup of Philadelphia, Inc. (WTXF(TV)), 10 FCC Rcd 6710 (1995). In Paramount/WDCA(TV),  X- xsupra, a forfeiture of $15,000 was assessed for 20 instances of commercial overages, 11 of which  X - xkwere programlength commercials. In Paramount/ WTXF(TV), supra, a forfeiture of $15,000  xwas assessed for 52 instances of commercial overages, six of which were programlength  X"- xMcommercials. "B X%- x#Xj\  P6G; XP#э As discussed above, Congress was particularly concerned about programlength  xcommercials because of the difficulty that young children often have in distinguishing between  xcommercials and programs. In view of this Congressional concern, the Commission made it clear  X'- xthat programlength commercials, by their very nature, are extremely serious violations of the"',))'"  x{children's television commercial limits, stating that the programlength commercial policy  x"directly addresses a fundamental regulatory concern, that children who have difficulty enough  xydistinguishing program content from unrelated commercial matter, not be all the more confused  XK- xkby a show that interweaves program content and commercial matter." Children's Television  X4- xProgramming, supra 6 FCC Rcd at 2118. Accordingly, the Commission has routinely assessed  xMhigher forfeitures for programlength commercials than for a significantly greater number of conventional overages.  The violations in the instant case (71 overages, including 14 programlength"" ,))qqf!"  xcommercials) 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.   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.   {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.  xAccordingly, the application of North Carolina Broadcasting Partners, for renewal of license for Station WCCB(TV), Charlotte, NC (BRCT960801KV), is hereby GRANTED. xThis letter was adopted by the Commission on September 11, 1997. x` `  hh x` `  hh@BY DIRECTION OF THE COMMISSION  X-x` `  hh@William F. Caton  xx 0(#(#Xx` `  hh@Acting Secretary  X|-Enclosure