******************************************************** 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 27, 1998 Released: May 28, 1998 CERTIFIED MAIL - RETURN RECEIPT REQUESTED KSAX-TV, Inc. Licensee, KSAX(TV) and KRWF(TV) 3415 University Avenue St. Paul, MN 55114 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. 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 applications for renewal of licenses (FCC Forms 303-S) for stations KSAX(TV), Alexandria, Minnesota (File No. BRCT-971201LL) and KRWF(TV), Redwood Falls, Minnesota (File No. BRCT-971201LK). In response to Section III, Question 4 of those applications, you certify that during the previous license term KSAX(TV) and KRWF(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 each application, you indicate that between August 28, 1993, and November 24, 1994, the stations exceeded the children's television commercial limits on 49 occasions. Of these 49 overages, eight were four seconds in duration, 40 were 15 seconds in duration and one was 40 seconds in duration. You attribute 33 of the 15-second overages, each of which occurred during an island of children's programming, to changes made by the ABC television network in its cartoon programming. Prior to September 18, 1994, ABC delivered the program "Goof Troop" to its affiliates with four minutes and 30 seconds of network commercial matter and a 30-second end- break which affiliates could sell locally. Effective September 18, 1994, however, ABC replaced "Goof Troop" with "Sonic the Hedgehog," and increased the amount of network advertising to five minutes. You maintain that KSTP-TV and/or KSAX(TV) continued to sell the 30-second end-break to local advertisers, resulting in the broadcast of 33 episodes of "Sonic the Hedgehog" with five minutes and 30 seconds of commercial matter. These 33 overages, you state, were discovered during a routine audit of children's programming on KSAX(TV) and KRWF(TV). Of the remaining 16 overages, eight occurred as a result of inadvertence and/or human error when the commercial limits were not prorated during islands of children's programming. Eight other overages resulted from an inadvertent scheduling error at the end of a block of children's programming and before the coverage of NCAA football. Notwithstanding the 49 reported overages, you maintain that, since the end of 1994, KSAX(TV) has not exceeded the commercial limits and has made tremendous strides in its efforts to ensure compliance with the Commission's commercial limits. More specifically, you assert that: (1) KSAX(TV) has developed systematic procedures to educate its management personnel of the Commission's new children's programming rules and the commercial limits for children's programming; and (2) as of April 5, 1997, during all of the Saturday children's programming, KSAX(TV) airs only PSAs and promos in spots which otherwise may be sold locally to advertisers. In addition, KSAX(TV) now receives from KSTP-TV copies of the ABC Network programming order which lists the number of minutes of network commercials contained in each children's program and the program log which lists the number of commercial minutes sold by KSTP-TV. You state that KSAX(TV) conducts a count of the commercial minutes on the order and log both before and after children's programming is aired, and that KSAX(TV)'s Traffic Department and Master Control Operator have the authority to eliminate spots to ensure compliance with the commercial limits. KSAX(TV) and KRWF(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on 49 occasions constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, KSAX-TV, 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. As discussed above, KSAX(TV) and KRWF(TV) exceeded the children's television commercial limits on 49 occasions. This is a significant number of violations. The violations occurred regularly, moreover, over an extended period of approximately one year and three 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. It is apparent that KSAX(TV) and KRWF(TV) initially did not establish an effective program to monitor compliance with the children's television commercial limits. In addition, from the information provided in your renewal applications, it appears that the cited violations occurred because of inadvertence and/or human error. The Commission, however, 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). Nor does the fact that some or all of the commercial overages occurred in programming supplied by KSTP-TV absolve KSAX(TV) and KRWF(TV) of responsibility for the violations. In this regard, 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. Finally, although corrective actions may have been taken to prevent subsequent violations of the Commission's children's television rules and policies, this does not relieve KSAX(TV) and KRWF(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, Danville Television Partnership (WDRG(TV), 12 FCC Rcd 1351 (1997), we assessed a forfeiture of $10,000 for 49 commercial limit violations, all 30 seconds in duration, which occurred over a six-month period. Here, KSAX(TV) and KRWF(TV) also reported 49 violations, although their overages were shorter in duration and occurred over a longer period of time than those involved in Danville Television. On balance, however, we find the violations reported by KSAX(TV) and KRWF(TV) to be comparable to those in Danville 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 applications of KSAX-TV, Inc. for stations KSAX(TV), Alexandria, Minnesota (File No. BRCT-971201LL) and KRWF(TV), Redwood Falls, Minnesota (File No. BRCT-971201LK), ARE HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Marvin Rosenberg, Esq. LGallo/vsd/MMB n:\winapps\wpwin\kidvid\ksax.nal cc address: KSAX-TV, Inc. Licensee, KSAX(TV) and KRWF(TV) c/o Marvin Rosenberg, Esq. Holland & Knight, LLP 2100 Pennsylvania Avenue, NW, Suite 400 Washington, DC 20037-3202 $//KSAX-TV, INC., KSAX(TV) (Alexandria, MN) and KRWF(TV) (Redwood Falls, MN) DA 98-1002 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$