******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 In reply refer to: 1800E1-LG April 24, 1998 Released: April 27, 1998 CERTIFIED MAIL - RETURN RECEIPT REQUESTED WCGV Licensee, Inc. Licensee, WCGV-TV 2000 West 41st Street Baltimore, MD 21211 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of ten thousand dollars ($10,000) pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. 503(b), under authority delegated to the Chief of the Mass Media Bureau by Section 0.283 of the Commission's Rules, 47 C.F.R. 0.283, 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 amount 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, 1997, you filed an application for renewal of license (FCC Form 303-S) for station WCGV-TV, Milwaukee, Wisconsin (File No. BRCT-970801KL). In response to Section III, Question 4 of that application, you state that during the previous license term WCGV-TV failed to comply with the limitations on commercial matter in children's programming specified in Section 73.670 of the Commissions Rules. In Exhibit 3 to that application you indicate that between January 19, 1995, and May 19, 1997, WCGV-TV exceeded the children's television commercial limits on five occasions. Of these five commercial overages, one was 30 seconds in duration, and four were program-length commercials. The 30-second overage and three of the program-length commercials are attributed to human error. The remaining program-length commercial is attributed to the failure of a coding system to prevent the broadcast of a commercial containing Power Rangers toys during the "Power Rangers" program. You state, however, that seconds into the airing of that commercial, WCGV-TV's engineer realized the potential for a violation and went to black within approximately 15 seconds, and that WCGV-TV has instituted a new policy in its Traffic Department to prevent such future violations. WCGV-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on five occasions constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, WCGV-TV Licensee, Inc. is hereby advised of its apparent liability for forfeiture in the amount of ten thousand dollars ($10,000) 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. Although one of the overages described in WCGV-TV's renewal application was 30 seconds in duration, four 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 number and nature 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. Children's Television Programming, supra, 6 FCC Rcd at 2117-18. The only reasons for the overages proffered by WCGV-TV, inadvertence and human error, do not mitigate or excuse such violations. In fact, 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 (1995) Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994); Le Sea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (1995); and Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959 (1995). In addition, the violations occurred from January 19, 1995, through May 19, 1997, a period of two years and four months. When the Commission delayed the effective date of Section 73.670 of the rules 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. Although WCGV-TV appears to have made an effort to comply with the Commission's children's television commercial limits, that effort apparently was not sufficient in light of the violations described in the station's renewal application. Finally, the fact that WCGV-TV may have implemented a policy 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). Consideration of all of these factors warrants a forfeiture in the above-specified amount of $10,000. Cf., WTTE, Channel 28 Licensee, Inc. (WTTE(TV)), DA 97-2315 (Released Nov. 4, 1997) ($10,000 forfeiture for five overages, including four program-length commercials); Gannett Massachusetts Broadcasting, Inc. (WLVI-TV), 9 FCC Rcd 1555 (1994) ($10,000 forfeiture for seven overages, including four program-length commercials); and Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994) ($10,000 forfeiture for six overages, including three program- length commercials). 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. Therefore, the license renewal application of WCGV-TV Licensee, Inc., for station WCGV-TV, Milwaukee, Wisconsin (File No. BRCT-970801KL), IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Martin R. Leader, Esq. wcgv.nal LGallo/vsd/MMB n:\winapps\wpwin\kidvid\wcgv.nal cc address: WCGV Licensee, Inc. Licensee, WCGV-TV c/o Martin R. Leader, Esq. Fisher Wayland Cooper Leader & Zaragoza, L.L.P. 2001 Pennsylvania Avenue, N.W., Suite 400 Washington, D.C. 20006-1851 $// WCGV LICENSEE, INC., WCGV-TV(Milwaukee, WI) DA 97-799 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$