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DA 98383 ă  yxdddy hFederal Communications Commission Washington, D.C. 20554 `!(# In reply refer to: 1800E1LG February 27, 1998  YH2`(# Released: March 2, 1998 ă  X 2 CERTIFIED MAIL RETURN RECEIPT REQUESTED `(#(# Koplar Communications Television, L.L.C. Licensee, KPLRTV 4935 Lindell Boulevard St. Louis, MO 63108 Dear Licensee:  xThis letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the  x`amount of twenty thousand dollars ($20,000) pursuant to Section 503(b) of the Communications  x`Act of 1934, as amended, 47 U.S.C. 503(b), under authority delegated to the Chief of the Mass  xMedia Bureau by Section 0.283 of the Commission's Rules, 47 C.F.R. 0.283, for repeated  x.violations of the Commission's rule limiting the amount of commercial matter that may be aired during children's programming.  Y2 xpIn the Children's Television Act of 1990, Pub. L. No. 101437, 104 Stat. 9961000, codified  Y2 xat 47 U.S.C. Sections 303a, 303b and 394, Congress directed the Commission to adopt rules,  Yj2 xinter alia, limiting the amount of commercial matter that television stations may air during  xchildren's programming, and to consider in its review of television license renewals the extent  xjto which the licensee has complied with such commercial limits. Accordingly, the Commission  xadopted Section 73.670 of the Rules, 47 C.F.R. 73.670, which limits the amount of  xlcommercial matter which may be aired during children's programming to 10.5 minutes on  xweekends and 12 minutes on weekdays. The Commission also reaffirmed and clarified its long x~standing policy that a program associated with a product, in which commercials for that product  x`are aired, would cause the entire program to be counted as commercial time (a "programlength  Y!2 xcommercial"). Children's Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in  Y"2 xpart, 6 FCC Rcd 5093, 5098 (1991). These commercial limitations became effective on January  Y#21, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991).  x$On September 30, 1997, you filed a license renewal application (FCC Form 303S) for station  x&KPLRTV, St. Louis, Missouri (File No. BRCT970930KN). In response to Section III,  xQuestion 4 of that application, you state that during the previous license term KPLRTV failed  x to comply with the limitations on commercial matter in children's programming specified in  xHSection 73.670 of the Commissions Rules. In Exhibit 3 to that application and a letter dated"),**rr&" December 5, 1997,"(,**qq'"  xyou indicate that between March 30, 1995, and October 9, 1997, KPLRTV violated the  X- xchildren's television commercial limits on 34 occasions. Of these commercial overages, five were  xless than 30 seconds in duration, eight were 30 seconds or more but less than 60 seconds in  x{duration, one was 60 seconds in duration and 20 were programlength commercials. You  x>attribute all but one of these violations to inadvertence and/or human error, and assert that  xremedial actions have been taken to prevent the recurrence of such violations. The remedial  xactions you describe include having: (1) the traffic manager doublecheck all quarterly changes  xin commercial formatting for continuing children's programs; (2) the local and national traffic  xcoordinators check the children's programming commercial count on each final log before it is  xsent to master control; (3) computer coding and specific assignments of responsibility to station  xpersonnel; (4) station personnel prescreen all commercials for children's programs to verify their  xcontent; and (5) a continuing series of educational meetings with station personnel regarding  xchildren's television commercial "regulations." As for the remaining violation, a programlength  xcommercial, you state that a program provided to KPLRTV by the Warner Network ("Warner")  x=erroneously included a commercial featuring characters related to that program. You maintain  xythat KPRLTV was subsequently advised that Warner was implementing screening procedures  xto insure that no programrelated spots would be scheduled in the future and steps to notify stations in advance of any spot that slips through the screening procedures.  x[KPLRTV's record during the last license term of exceeding the Commission's commercial limits  xon children's television programming on 34 occasions, including 20 programlength commercials,  xMconstitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly,  xzpursuant to Section 503(b) of the Communications Act, Koplar Communications Television,  xL.L.C. is hereby advised of its apparent liability for forfeiture in the amount of twenty thousand  xdollars ($20,000) for its apparent repeated violation of Section 73.670 of the Commission's Rules.  x-The amount specified was reached after consideration of the factors set forth in Section 503(b)(2)  xof the Communications Act, and, in particular, the following criteria: (1) the number of instances  X- xof commercial overages; (2) the length and nature of each such overage; (3) the period of time  xover which such overages occurred; (4) whether or not the licensee established an effective  xprogram to ensure compliance; and (5) the specific reasons that the licensee gives for the  x[overages. These criteria are appropriate in analyzing violations of the commercial limits during  X7- xchildren's programming, since they take into account, inter alia, "the nature, circumstances,  xjextent, and gravity of the violation, and, with respect to the violator, the degree of culpability",  X -as required under 503(b)(2)(D) of the Communications Act.L J {O - xZԍ In United States Telephone Ass'n. v. FCC, 28 F3rd 1232 (D.C. Cir. 1994), the U.S. Court of Appeals for the  {ON!- xhDistrict of Columbia set aside Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon.  {O"- xdenied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993), stating that the guidelines for assessing forfeitures  x=established therein must be subject to public comment to comply with the Administrative Procedure Act. In  {O#- x\accordance with the court's decision, the Commission released Forfeiture Guidelines Notice of Proposed  {Ot$- x,Rulemaking in CI Docket No. 956, 10 FCC Rcd 2945 (1995). After receiving and considering comments from the  {O>%- 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.  {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,"  {OX-in conformity with the standards set out in Section 503 of the Communications Act. Id. at 49.L" ",))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 KPLRTV 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, 20 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  xjSess. 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.  X>- 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  x211718. The only reasons KPLRTV offers for all but one of the overages are human error  xzand/or inadvertence. However, the Commission has repeatedly rejected human error and/or  xinadvertence as a basis for excusing violations of the children's television commercial limits.  X- xRamar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994); Act III Broadcasting License  X- xCorp. (WUTV(TV)), 10 FCC Rcd 4957 (1995); Buffalo Management Enterprises Corp. (WIVB X- xTV), 10 FCC Rcd 4959 (1995); LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977  x(1995). Likewise, the occurrence of a programlength commercial in programming supplied by  X`- xWarner does not absolve KPLRTV of responsibility for that violation. The Commission has  x-consistently held that a licensee's reliance on a program's source or producer for compliance with  xour children's television rules and policies will not excuse or mitigate violations which do occur.  X- xSee, e.g., Max Television of Syracuse, L.P. (WSYT(TV)), 10 FCC Rcd 8905 (1995); Mt. Mansfield  X- xzTelevision, Inc. (WCAXTV), 10 FCC Rcd 8797 (1995); Boston Celtics Broadcasting Limited  X- xOPartnership (WFXT(TV)), 10 FCC Rcd 6686 (1995); WRGB Broadcasting, Inc., MMB  X - xzAdmonition dated August 10, 1994. The fact that KPLRTV may have implemented, or may  xbe implementing, policies to prevent subsequent violations of the Commission's children's  x<television rules and policies does not relieve the licensee of liability for the violations which have  X#- xoccurred. International Broadcasting Corp., 19 FCC 2d 793, 794 (1969); KEVN, Inc., 8 FCC  X$- xRcd 5077, 5078 (1993); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (1994);"$",))qq(#"  X- xMountain States Broadcasting, Inc. (KMSBTV), 9 FCC Rcd 2545, 2546 (1994); WHP Television,  X- xL.P., 10 FCC Rcd 4979, 4980 (1995). In this regard, we note that despite KPLRTV's  x<implementation of procedures to prevent future violations, a programlength commercial occurred  xyas recently as October 9, 1997. Consideration of all of these factors warrants a forfeiture in the  X- xLabovespecified amount of $20,000. Cf., Meredith Corp. (WOFL(TV)), 12 FCC Rcd 2387 (1997)  X- x.($20,000 forfeiture for 33 overages, including 19 programlength commercials);  PonceNicasio  X~- xBroadcasting (KCMY(TV)), 10 FCC Rcd 6728 (1995) ($20,000 forfeiture for 27 overages, all of  Xi- xwhich were programlength commercials); and Max Television of Syracuse, L.P. (WSYT(TV)), 10  x@FCC Rcd 8905 (1995) ($20,000 forfeiture for 29 overages, including 18 programlength commercials).  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,  xythe license renewal application of Koplar Communications Television, L.L.C., for station KPLRTV, St. Louis, Missouri, File No. BRCT970801KM, IS HEREBY GRANTED.  X- x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Roy J. Stewart x` `  hh@Chief, Mass Media Bureau Enclosures cc: R. Edward Price, Esq. "!,))qq " LGallo/vsd/MMB n:\winapps\wpwin\kidvid\kplr.nal cc address: Koplar Communications Television, L.L.C. Licensee, KPLRTV c/o R. Edward Price, Esq. Koteen & Naftalin, L.L.P. 1150 Connecticut Avenue, NW Washington, DC 20036  Xb- xz $// KOPLAR COMMUNICATIONS TELEVISION, L.L.C., KPLRTV (St. Louis, MO) DA 98383 [$]L X  //$ $/ 300.503(b) FORFEITURES (NAL) /$  X-$/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$#x6X@`7X@#  ?<#x6X@`7X@#