******************************************************** 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 May 20, 1998 Released: May 26, 1998 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Fox Television Stations Inc. Licensee, KDVR(TV) c/o Molly Pauker 5151 Wisconsin Avenue, NW Washington, DC 20016 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of eleven thousand, five hundred dollars ($11,500) 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 December 1, 1997, you filed an application for renewal of license (FCC Form 303-S) for station KDVR(TV), Denver, Colorado (File No. BRCT-971201KK). In response to Section III, Question 4 of that application, you certify that during the previous license term KDVR(TV) failed to comply with the limitations on commercial matter in children's programming specified in Section 73.670 of the Commission's Rules. In Exhibit 4 to that application, you indicate that between September 23, 1992, and December 8, 1995, KDVR(TV) violated the children's television commercial limits on 16 occasions. Of these 16 overages, three were less than 30 seconds in duration, four were 30 seconds in duration, two were 45 seconds in duration, two were one minute in duration, two were one and a half minutes in duration and three were program-length commercials. You attribute nine of the conventional overages to commercial make-goods and assert that written directives and warnings "never to deviate from the log during children's programming" were issued to the station's Master Control and Engineering personnel. The remaining seven overages resulted from inadvertence and/or human error. You maintain that no overages have occurred since the beginning of 1996, when "station management reviewed the excessive commercial overage situation and instituted a `zero tolerance' policy at the station, including checkpoints at every state of the commercial logging process and involving staff from the Sales, Programming, Traffic and Engineering Departments." KDVR(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on 16 occasions, three of which were 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 eleven thousand, five hundred dollars ($11,500) 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. As discussed above, KDVR(TV) exceeded the children's television commercial limits on 16 occasions. This is a significant number of violations. Overages of this number 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. In this regard, three 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 violations occurred, moreover, over an extended period of approximately three years and two 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 KDVR(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. In addition, the only reasons cited by KDVR(TV) for the commercial overages, inadvertence and human error, do not mitigate or excuse such violations. The Commission has repeatedly rejected inadvertence and human error as a basis for excusing violations of the children's television commercial limits. See, e.g., 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); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994). Furthermore, while corrective actions may have been taken to prevent subsequent violations of the Commission's children's television rules and policies, this does not relieve KDVR(TV) of liability for violations which have occurred. See, e.g., WHP Television, L.P., 10 FCC Rcd 4979, 4980 (1995); Mountain States Broadcasting, Inc. (KMSB- TV), 9 FCC Rcd 2545, 2546 (1994); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (1994); International Broadcasting Corp., 19 FCC 2d 793, 794 (1969); KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993). Consideration of all of these factors warrants a forfeiture in the above-specified amount of $11,500. By way of comparison, in Television Marketing Group of Memphis, Inc. (WLMT(TV) and WMTU(TV)), 12 FCC Rcd 15309 (1997), we assessed a $12,500 forfeiture for 14 commercial limit violations consisting of four program-length commercials, one one- minute overage and nine 30-second overages, which occurred over a period of approximately three years and two months. In another case, WHNS License Partnership (WHNS(TV)), 12 FCC Rcd 2394 (1997), we assessed a $10,000 forfeiture for 18 commercial limit violations consisting of one program-length commercial, two one-minute overages and 15 30-second overages, which occurred over a period of approximately four years and three months. When viewed against Television Marketing Group, KDVR(TV) had one less program-length commercial, but a higher number of total overages. On the other hand, KDVR(TV) had more program-length commercials, but fewer total overages, occurring over a shorter time period than in WHNS License Partnership. The violations in all three cases, however, occurred over an extended period of time of at least three years. For these reasons, we find that the number and nature of the violations in the instant case fall between those involved in Television Marketing Group and WHNS License Partnership. Therefore, having considered the forfeiture amounts assessed in Television Marketing Group and WHNS License Partnership, as well as the five criteria we use in analyzing violations of the commercial limits during children's programming, we conclude that a forfeiture of $11,500 is appropriate in this case. 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 KDVR(TV), Denver, Colorado, File No. BRCT-971201KK, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures LGallo/vsd/MMB n:\winapps\wpwin\kidvid\kdvr.nal $//FOX TELEVISION STATIONS INC., KDVR(TV) (Denver, CO) DA 98-974 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$