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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 Fox Television Stations, Inc. Licensee, WFLD(TV) c/o Molly Pauker, Esq. 5151 Wisconsin Avenue, NW Washington, DC 20016 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), 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 4, 1997, you filed a license renewal application (FCC Forms 303-S) for station WFLD(TV), Chicago, Illinois (File No. BRCT-970804KE). In response to Section III, Question 4 of that application, you certify that, during the previous license term, WFLD(TV) failed to comply with the limits on commercial matter in children's programming specified in Section 73.670 of the Commissions Rules. In Exhibit 4 to the renewal application, you indicate that between March 7, 1993, and January 11, 1997, WFLD(TV) violated the children's television commercial limits on 19 occasions. Of these commercial overages, eight were less than 30 seconds in duration, eight were 30 seconds in duration, one was one minute and 15 seconds in duration and two were program-length commercials. You attribute 17 of these violations to human error, inadvertence, commercial makegoods, an employee's misunderstanding of the children's television rules or misunderstandings between a distributor and the station with respect to in-program barters. After each of these violations, you maintain, measures were taken to correct the error so as to prevent a recurrence. As for the two remaining violations, you describe a 30-second overage which occurred on November 11, 1993, as a result of a Beta cart malfunction. The equipment involved in that violation was subsequently repaired. The other violation, a ten-second overage which occurred on March 19, 1994, resulted from the broadcast of a "Special News Report," which shifted commercial matter from 4:30 - 5:00 p.m. to 5:00 - 5:30 p.m. You state that, following this violation, "Master Control was instructed to recompute the log whenever news specials air in or around children's programs." As a preliminary matter we note that, in establishing rules and policies limiting the amount of commercial matter which may be aired during children's programming, the Commission specifically recognized that licensees may experience "occasional emergency scheduling change[s]," and stated that such changes would be taken into consideration in determining whether "extenuating circumstances" mitigated any resulting children's television commercial limit violations. See Children's Television Programming, supra, 6 FCC Rcd at 2126 n.123. On reconsideration, the Commission affirmed this policy, stating that "where the facts demonstrate that a slight overage is caused by a last- minute emergency scheduling change, we will consider such a lapse to be `de minimis.'" Children's Television Programming (Recon.), supra, 6 FCC Rcd at 5096. Although the overages which occurred on November 11, 1993, and March 19, 1994, did not involve schedule changes, we believe that the Beta cart malfunction and the broadcast of the Special News Report constitute extenuating circumstances with regard to those overages. See, e.g., WHNS License Partnership (WHNS(TV)), 12 FCC Rcd 2394 (1997). Accordingly, those overages shall be considered de minimis, and shall not be considered in determining any sanction which may be appropriate for other children's television commercial limit violations reported by the licensee. Id. WFLD(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on 17 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, Fox Television Stations, 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 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 WFLD(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). Given this Congressional concern, the Commission made it clear that program-length commercials, by their very nature, are extremely serious violations of the children's television commercial limits, stating that the program-length commercial policy "directly addresses a fundamental regulatory concern, that children who have difficulty enough distinguishing program content from unrelated commercial matter, not be all the more confused by a show that interweaves program content and commercial matter." Children's Television Programming, supra, 6 FCC Rcd at 2118. Accordingly, the Commission has routinely assessed higher forfeitures for program-length commercials than for a greater number of conventional overages. See, e.g., Channel 39 Licensee, Inc. (WDZL(TV), 12 FCC Rcd 14012, 14015 n.3. The number and magnitude of overages at issue here 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. WFLD(TV) offers human error, inadvertence, commercial makegoods, an employee's misunderstanding of the children's television rules or misunderstandings between a distributor and the station with respect to in-program barters as reasons for the overages. The Commission, however, has repeatedly rejected human error, inadvertence and/or misunderstanding 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); LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959 (1995); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (1995); and Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994). Nor does the fact that WFLD(TV) may have implemented corrective measures to prevent subsequent violations of the Commission's children's television rules and policies relieve the licensee of liability for the 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. In a similar case, WHNS License Partnership, supra, a $10,000 forfeiture was assessed for 18 commercial overages, one of which was a program-length commercial. 12 FCC Rcd 2394. There, we also determined that a computer malfunction, causing two overages, constituted extenuating circumstances which mitigated WHNS-TV's resulting children's television commercial limit violations. Id. at 2395. Accordingly, we deemed those overages to be de minimis, and did not consider them in assessing the forfeiture amount of $10,000. Id. In comparison, excluding the two de minimis overages we have found in this case, WFLD(TV) had one less conventional overage and one more program-length commercial than WHNS-TV. We believe that WFLD(TV)'s violations are comparable to those in WHNS License Partnership and, therefore, conclude that a comparable forfeiture is appropriate. 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 Fox Television Stations, Inc., for station WFLD(TV), Chicago, Illinois, File No. BRCT-970804KE, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures LGallo/vsd/MMB n:\winapps\wpwin\kidvid\wfld.nal $// FOX TELEVISION STATIONS, INC., WFLD(TV) (Chicago, IL) DA 98-801 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$