******************************************************** 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 Red River Broadcasting Corp. Licensee, KDLT-TV 3600 S. Westport Avenue Sioux Falls, SD 57106 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 November 26, 1997, you filed an application for renewal of license (FCC Form 303-S) for station KDLT-TV, Mitchell, South Dakota (File No. BRCT-971126KT). In response to Section III, Question 4 of that application, you certify that during the previous license term KDLT-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 3 to that application, you indicate that between November 28, 1994, and July 29, 1995, KDLT-TV violated the children's television commercial limits on 11 occasions. Of these 11 overages, two were 15 seconds in duration, four were 30 seconds in duration, one was 45 seconds in duration, one was one minute in duration and three were program-length commercials. With respect to the eight conventional overages, you assert that KDLT-TV's traffic personnel were unaware of the difference between the weekday and weekend commercial time limits, and had used the weekday time limits in children's programming broadcast on Saturday or Sunday. You state that, upon discovering these overages, the station's "traffic personnel were made aware of the different set of time limits and immediately corrected the problem." The three program-length commercials you describe occurred when a "conflicting product aired in built- in barter positions of Sonic the Hedgehog." You maintain, however, that "[t]he program content was integrated into the commercial by the syndicator," and that this problem was corrected as soon as you were notified by Bohbot Entertainment. KDLT-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on 11 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, Red River Broadcasting Corp. 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. As discussed above, KDLT-TV exceeded the children's television commercial limits on 11 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 fact that the three program-length commercials in this case occurred in programming supplied by a syndicator, Bohbot Entertainment, does not absolve KDLT-TV of responsibility for the violations. To wit, the Commission has consistently held that a licensee's reliance on a program's source or producer for compliance with our children's television rules and policies will not excuse or mitigate violations which do occur. See, e.g., Max Television of Syracuse, L.P. (WSYT(TV)), 10 FCC Rcd 8905 (1995); Mt. Mansfield Television, Inc. (WCAX-TV), 10 FCC Rcd 8797 (1995); Boston Celtics Broadcasting Limited Partnership (WFXT(TV)), 10 FCC Rcd 6686 (1995); WRGB Broadcasting, Inc., MMB Admonition dated August 10, 1994. The violations occurred, moreover, over a period of eight 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 KDLT-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 KDLT-TV for the commercial overages, inadvertence and misunderstanding and/or ignorance of the Commission's rules, do not mitigate or excuse such violations. The Commission has repeatedly rejected inadvertence and misunderstanding of the Commission's rules 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 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); 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 KDLT-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); KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993); International Broadcasting Corp., 19 FCC 2d 793, 794 (1969). Consideration of all of these factors warrants a forfeiture in the above-specified amount of $10,000. In a similar case, IMS Broadcasting, LLC, (WNDY-TV), 12 FCC Rcd 11992 (1997), we assessed a forfeiture of $10,000 for nine commercial limit violations, including three program-length commercials and four overages one and a half minutes or longer, which occurred over an 11-month period. WNDY-TV attributed the nine violations to human error and/or inadvertence. In another case, Fox Television Stations, Inc. (WTTG(TV)), 12 FCC Rcd 1357 (1997), we also assessed a $10,000 forfeiture for eight commercial limit violations, consisting of three program-length commercials, one overage one and a half minutes in duration and four overages between 30 and 50 seconds in duration. The violations in Fox Television occurred over a period of approximately three years and seven months, principally as a result of human error and/or inadvertence. Here, KDLT-TV exceeded the children's television commercial limits on 11 occasions, including three program-length commercials and five overages between 30 and 45 seconds, over an eight-month period due to inadvertence and low-level employees' misunderstanding of the Commission's Rules. Compared to IMS Broadcasting and Fox Television, KDLT-TV had the same number of program-length commercials, but more total overages which occurred over a shorter period of time. On balance, and having considered the five criteria we use in analyzing violations of the commercial limits during children's programming, we find the violations in the instant case to be comparable to those in IMS Broadcasting and Fox Television. Therefore, we 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 Red River Broadcasting Corp. for station KDLT- TV, Mitchell, South Dakota, File No. BRCT-971126KT, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures LGallo/vsd/MMB n:\winapps\wpwin\kidvid\kdlt.nal $//RED RIVER BROADCASTING CORP., KDLT-TV (Mitchell, SD) DA 98-975 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$