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DA 98304 ă  yxdddy hFederal Communications Commission Washington, D.C. 20554 `"(# February 17, 1998  Yv2`d(#x Released: February 19, 1998 ă  X22 CERTIFIED MAIL RETURN RECEIPT REQUESTED `(#(# Second Generation of Iowa, Ltd. Licensee, KFXA(TV) One Radio Lane Cleveland, OH 44114 Dear Licensee:  xThis letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the  xamount of seven thousand, five hundred dollars ($7,500) pursuant to Section 503(b) of the  xCommunications Act of 1934, as amended, 47 U.S.C. 503(b), under authority delegated to the  x&Chief of the Mass Media Bureau by Section 0.283 of the Commission's Rules, 47 C.F.R.  x 0.283, for repeated violations of the Commission's rule limiting the amount of commercial matter that may be aired during children's programming.  Y2 xpIn the Children's Television Act of 1990, Pub. L. No. 101437, 104 Stat. 9961000, codified  Y2 xat 47 U.S.C. Sections 303a, 303b and 394, Congress directed the Commission to adopt rules,  Y2 xinter 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  xjto which the licensee has complied with such commercial limits. Accordingly, the Commission  xadopted Section 73.670 of the Rules, 47 C.F.R. 73.670, which limits the amount of  xlcommercial matter which may be aired during children's programming to 10.5 minutes on  xweekends and 12 minutes on weekdays. The Commission also reaffirmed and clarified its long x~standing policy that a program associated with a product, in which commercials for that product  x`are aired, would cause the entire program to be counted as commercial time (a "programlength  Y2 xcommercial"). Children's Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in  Y 2 xpart, 6 FCC Rcd 5093, 5098 (1991). These commercial limitations became effective on January  Y!21, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991).  xOn October 2, 1997, you filed an application for renewal of license (FCC Form 303S) for  Yu$2 xBstation KFXA(TV), Cedar Rapids, Iowa (File No. BRCT971002KG).| u${ xP&( x.ԍ You note in your renewal application that "KFXA (formerly KOCR) was purchased by Second Generation  xof Iowa, Ltd. It was returned to the air on August 13, 1995. Our responses to all questions in this license renewal  x$application are confined to the time frame, August 13, 1995, to the current date." Our records indicate that on  x(November 6, 1995, the Commission granted consent to the assignment of the license for KFXA(TV) from KOCR"F),**F)"  xFTV, Inc. to Second Generation of Iowa, Ltd. (BALCT950425KF). That assignment transaction was consummated  xon January 23, 1996. Our records further show that on May 25, 1995, the Commission granted KFXA(TV) special  xtemporary authority to remain dark until October 4, 1995. On August 24, 1995, a license application for the station  xzwas filed (BLCT950824KJ), indicating that KFXA(TV) was operating pursuant to program test authority in accordance with 47 C.F.R.  73.1620.| In response to Section"u$x,**rrt"" III,"r$x,**qq(#"  xQuestion 4 of that application, you certify that during the previous license term KFXA(TV) failed  xto comply with the limitations on commercial matter in children's programming specified in  x/Section 73.670 of the Commissions Rules. In Exhibit 2 to that application, you indicate that  xbetween September 7, 1996, and September 10, 1996, KFXA(TV) violated the children's  xLtelevision commercial limits on three occasions when the station aired a toy commercial during  xa program having content associated with that product. You attribute the violations to a single,  xLinadvertent scheduling error, and assert that measures were taken to prevent the recurrence of  xsuch future errors. The measures taken include having: (1) the traffic department redflag all  xtraffic instructions with specific product/program tieins; (2) the traffic department review all red xflagged traffic instructions; (3) the run times on the commercial order changed so that  xcommercials containing products related to programs do not air in those specific programs;  xj(4) the production department, when dubbing commercials, notify the traffic department of any  xpossible commercials that could be a problem; (5) a list of show titles posted in the traffic and  xproduction departments to remind employee's of what to redflag; and (6) the traffic department and promotion manager check the logs every day.  xKFXA(TV)'s record during the last license term of exceeding the Commission's commercial  xlimits on children's television programming on three occasions, all programlength commercials,  xMconstitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly,  xpursuant to Section 503(b) of the Communications Act, Second Generation of Iowa, Ltd. is  xhereby advised of its apparent liability for forfeiture in the amount of seven thousand, five  xhundred dollars ($7,500) for its apparent repeated violation of Section 73.670 of the  xCommission's Rules. The amount specified was reached after consideration of the factors set  xforth in Section 503(b)(2) of the Communications Act, and, in particular, the following criteria:  X- x>(1) the number of instances of commercial overages; (2) the length and nature of each such  xoverage; (3) the period of time over which such overages occurred; (4) whether or not the  xlicensee established an effective program to ensure compliance; and (5) the specific reasons that  xthe licensee gives for the overages. These criteria are appropriate in analyzing violations of the  X|- xcommercial limits during children's programming, since they take into account, inter alia, "the  xynature, circumstances, extent, and gravity of the violation, and, with respect to the violator, the  XP-degree of culpability," as required under 503(b)(2)(D) of the Communications Act.ON$PxJ {Oy"- xԍ In United States Telephone Ass'n. v. FCC, 28 F3rd 1232 (D.C. Cir. 1994), the U.S. Court of Appeals for  {OC#- xthe District of Columbia set aside Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991),  {O $- xirecon. denied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993), stating that the guidelines for assessing  xJforfeitures established therein must be subject to public comment to comply with the Administrative Procedure Act.  {O%- xIn accordance with the court's decision, the Commission released Forfeiture Guidelines Notice of Proposed  {Oi&- x,Rulemaking in CI Docket No. 956, 10 FCC Rcd 2945 (1995). After receiving and considering comments from the  {O3'- xpublic in that proceeding, the Commission adopted Forfeiture Guidelines Report and Order in CI Docket No. 956,   {O'- x12 FCC Rcd 17087 (1997) (Forfeiture Guidelines). Forfeiture Guidelines became effective on October 14, 1997. "',))F("  {O- xZ62 Fed. Reg. 43474 (August 14, 1997). However, with regard to (i) all cases pending when Forfeiture Guidelines  xwas adopted, and (ii) all cases involving "violations arising from facts that occurred before the effective date of th[at]  xorder," forfeiture amounts are to be assessed "under the casebycase approach in effect when the violation occurred,"  {O-in conformity with the standards set out in Section 503 of the Communications Act. Id. at 49.O"P,))qq^"Ԍ xԙWhen the Commission delayed the effective date of Section 73.670 of the Rules until January  x1, 1992, we stated that "giving the additional time to broadcasters and cable operators before  xcompliance with the commercial limits is required will have the effect of enabling broadcasters  X- x>and cable operators to hone their plans to ensure compliance . . . . " Children's Television  X- xProgramming, supra, 6 FCC Rcd at 5530 n.10. Although KFXA(TV) appears to have made an  xleffort to comply with the Commission's children's television commercial limits, that effort  x?apparently was not sufficient in light of the violations described in the station's renewal  xapplication. Further, all of the overages 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). Given this Congressional concern, the Commission made it clear that program X - xlength commercials, by their very nature, are extremely serious violations of the children's  x0television commercial limits, stating that the programlength commercial policy "directly  xaddresses a fundamental regulatory concern, that children who have difficulty enough  xydistinguishing program content from unrelated commercial matter, not be all the more confused  X - xby a show that interweaves program content and commercial matter." Children's Television  X- xProgramming, supra, 6 FCC Rcd at 2118. Accordingly, the Commission has routinely assessed  xhigher forfeitures for programlength commercials than for a greater number of conventional  Xj-overages. See, e.g., Channel 39 Licensee, Inc. (WDZL(TV), 12 FCC Rcd 14012, 14015 n.3.  xThe number and magnitude of overages at issue here mean that children have been subjected to  xcommercial matter greatly in excess of the limits contemplated by Congress when it enacted the  X- xChildren's Television Act of 1990. Children's Television Programming, supra, 6 FCC Rcd at  X- xj211718. The only reason for the overages proffered by KFXA(TV), an inadvertent scheduling  xerror, does not mitigate or excuse such violations. In this regard, the Commission has repeatedly  xzrejected human error and/or inadvertence as a basis for excusing violations of the children's  X- xtelevision commercial limits. Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994);  X- xAct III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (1995); Buffalo Management  X- xEnterprises Corp. (WIVBTV), 10 FCC Rcd 4959 (1995); LeSea Broadcasting Corp.  Xw- xO(WHKE(TV)), 10 FCC Rcd 4977 (1995). Moreover, the fact that KFXA(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.  X4- xMInternational Broadcasting Corp., 19 FCC 2d 793, 794 (1969); KEVN, Inc., 8 FCC Rcd 5077,  X- x5078 (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  x/FCC Rcd 4979, 4980 (1995). Consideration of all of these factors warrants a forfeiture in the  X - xabovespecified amount of $7,500. Cf., LeSea Broadcasting Corp., 10 FCC Rcd 4977 ($7,500 forfeiture assessed for three commercial overages, all programlength commercials). "",))qqf!"Ԍ x\You are afforded a period of thirty (30) days from the date of this letter "to show, in writing,  xwhy a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture.  xAny showing as to why the forfeiture should not be imposed or should be reduced shall include  xZa detailed factual statement and such documentation and affidavits as may be pertinent." Section  x1.80(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.  xNotwithstanding the substantial nature of the violations described here and the severity with  xwhich we regard them, we find you qualified to remain a Commission licensee and conclude that  xgrant of your application would serve the public interest, convenience and necessity. Therefore,  xthe license renewal application of Second Generation of Iowa, Ltd., for station KFXA(TV), Cedar Rapids, Iowa, File No. BRCT971002KG, IS HEREBY GRANTED.  X - x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Roy J. Stewart x` `  hh@Chief, Mass Media Bureau Enclosures cc: David Tillotson, Esq. "|,))qq" LGallo/vsd/MMB n:\winapps\wpwin\kidvid\kfxa.nal cc address: Second Generation of Iowa, Ltd. Licensee, KFXA(TV) c/o David Tillotson, Esq. 3421 M Street, NW, #1739 Washington, DC 20007  Xb- x $// SECOND GENERATION OF IOWA, LTD., KFXA(TV) (Cedar Rapids, IA) DA XXXXXX //$ $/ 300.503(b) FORFEITURES (NAL) /$  X-$/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$#x6X@`7X@#  ?<#x6X@`7X@#