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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 In reply refer to: 1800E1-LG April 27, 1998 Released: April 28, 1998 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Weigel Broadcasting Co. Licensee, WCIU-TV 26 No. Halsted Street Chicago, IL 60661 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 on weekends and 12 minutes on weekdays. The Commission also reaffirmed and clarified its long-standing policy that a program associated with a product, in which commercials for that product are aired, would cause the entire program to be counted as commercial time (a "program-length commercial"). Children's Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). These commercial limitations 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 WCIU-TV, Chicago, Illinois (File No. BRCT-970801KM). In response to Section III, Question 4 of that application, you state that during the previous license term WCIU-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 April 10, 1995 and July 7, 1997, WCIU-TV violated the children's television commercial limits on eight occasions. Of these commercial overages, one was 19 seconds in duration, one was 30 seconds in duration, two were one minute in duration, one was 90 seconds in duration, two were two minutes in duration and two were program-length commercials. You assert that the conventional 19-120 second overages resulted from human error. As for the program-length commercials, you state that during a broadcast of the "Sailor Moon" program on September 12, 1995, a commercial spot for the "Sailor Moon" toy line aired, and that, "[a] second airing of this spot was also mistakenly scheduled but the operator on duty was able to delete it from the log prior to its telecasting." Thereafter, you maintain, the responsibility for sensitive trafficking was placed on new more experienced employees. The second program-length commercial you describe occurred on July 7, 1997, when a commercial for a "Bananas in Pajamas" doll aired during the program "Tomy Bananas in Pajamas." You attribute this violation to human error, and state that "[t]he station is in the midst of reviewing its procedures, and other checks to determine how such a mistake could have occurred and what needs to be done to review the systems in place to prevent a recurrence." WCIU-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on eight occasions, including two program-length commercials, constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Weigel Broadcasting Co. 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 factors set forth in Section 503(b)(2) of the Communications Act, and, in particular, 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. 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 WCIU-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. Further, two of the overages 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 frequency 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. Children's Television Programming, supra, 6 FCC Rcd at 2117-18. The only reason for the overages proffered by WCIU-TV, human error, does not mitigate or excuse such violations. Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (1995); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959 (1995); Le Sea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995). Finally, the fact that WCIU-TV may have implemented, or may be implementing, 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); 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., Fox Television Stations, Inc. (WTTG(TV)), 12 FCC Rcd 1357 (1997) ($10,000 forfeiture for eight overages, including three 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); 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 Weigel Broadcasting Co., for station WCIU-TV, Chicago, Illinois, File No. BRCT-970801KM, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Howard S. Shapiro, Esq. LGallo/vsd/MMB n:\winapps\wpwin\kidvid\wciu.nal cc address: Weigel Broadcasting Co. Licensee, WCIU-TV c/o Howard S. Shapiro Fleischman and Walsh, L.L.P. 1400 16th Street, NW Washington, DC 20036 $// WEIGEL BROADCASTING CO., WCIU-TV (Chicago, IL) DA 98-800 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$