WPC{3 2BJ Z Courier3|jTimes New Roman Bold P6G;XPHP LaserJet 5Si LPT2:l)RM 700HPLAS5SI.PRSXj\  P6G;\z$^XP246KFKDTimes New Roman"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDdDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddxHxxHvppDXd<"dxtldpxxd"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+999999S9S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN /t _I ` 2 v[ p kA k a8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# 2rI v td a2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers :`S@ I.  X(# 2O  G  a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# 2@a5Right ParRight-Aligned Paragraph Numbers_o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p 2:Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . 2Ha2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   2%"h3!a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""2"2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""In the Children's Television Act of 1990, Pub. L. No. 101437, 104 Stat. 9961000, codified at  X- x=47 U.S.C. Sections 303a, 303b and 394, Congress directed the Commission to adopt rules, inter  X- xLalia, limiting the amount of commercial matter that television stations may air during children's  xprogramming, and to consider in its review of television license renewals the extent to which the  xlicensee has complied with such commercial limits. Accordingly, the Commission adopted  xzSection 73.670 of the Rules, 47 C.F.R.  73.670, which limits the amount of commercial matter  xwhich may be aired during children's programming to 10.5 minutes on weekends and 12 minutes  xLon weekdays. The Commission also stated that a program associated with a product, in which  x?commercials for that product are aired, would cause the entire program to be counted as  X- x[commercial time (a "programlength commercial"). Children's Television Programming, 6 FCC  X - x@Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). In addition, the  X!- x=Commission reiterated its longstanding policy against "hostselling," i.e, "the use of program  xitalent to deliver commercials," including "endorsements or selling by animated cartoon characters  X#- xlas well as `live' program hosts." Id. at 2127 n.147, 6 FCC Rcd at 5097; see also Action for  Xv$- xChildren's Television, 50 FCC 2d 1, 8, 1617 (1974). These commercial limitations became  Xa%- x{effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991).  xLOn August 1, 1997, you filed an application for renewal of license (FCC Form 303S) for station  xWACY(TV), Appleton, Wisconsin (File No. BRCT970801KH). In response to Section III,"),**qq'"  xzQuestion 4 of that application, you certify that during the previous license term WACY(TV)  xfailed to comply with the limitations on commercial matter in children's programming specified  x]in Section 73.670 of the Commission's Rules. In Exhibit 2 to the renewal application, you  xindicate that between November 28, 1994, and February 12, 1997, WACY(TV) violated the  xchildren's television commercial limits on five occasions. Of these five overages, one was 30  xseconds in duration and four were programlength commercials. You attribute the 30second  xLoverage to a commercial make good, and assert that the station's traffic manager subsequently  x{sent a memorandum to all of WACY(TV)'s master control operators advising them not to  xreschedule make goods during children's programming, and that he was assuming responsibility  x for any necessary rescheduling. As for the programlength commercials, you state that on  x\November 28, 1994, November 30, 1994, and December 2, 1994, an advertisement for a Sonic  xthe Hedgehog toy aired during the "Sonic the Hedgehog" show. The remaining programlength  xcommercial you describe occurred on October 24, 1996, when an advertisement for "Bananas in  xPajamas" ran during the "Bananas in Pajamas" program. You maintain, however, that you  xZreceived the "Sonic the Hedgehog" and "Bananas in Pajamas" programs from the syndicator with the commercials included.  Xy- x Three other incidents you report appear to be violations of the Commission's policy prohibiting  xhostselling. Specifically, on December 5, 7 and 9, 1994, a commercial featuring Tails, a  x/character from "Sonic the Hedgehog," ran during the "Sonic the Hedgehog" program. In a  xFebruary 18, 1998 amendment to the renewal application, you clarify that the commercial was  xfor the Sega Pico, a computer video game system that attaches to the television, and focused on  xythree pieces of educational software that could be played on that system: (1) Winnie the Pooh; (2) Mickey's Blast into the Past; and (3) Magic Crayons.  x>WACY(TV)'s record during the last license term of exceeding the Commission's commercial  xlimits on children's television programming on five occasions constitutes a repeated violation of  xSection 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the  xCommunications Act, Ace TV, Inc. is hereby advised of its apparent liability for forfeiture in the  xamount of ten thousand dollars ($10,000) for its apparent repeated violation of Section 73.670  xof the Commission's Rules. The amount specified was reached after consideration of the factors  xset forth in Section 503(b)(2) of the Communications Act, and, in particular, the following  X - xcriteria: (1) the number of instances of commercial overages; (2) the length and nature of each  xsuch overage; (3) the period of time over which such overages occurred; (4) whether or not the  xlicensee established an effective program to ensure compliance; and (5) the specific reasons that  xthe licensee gives for the overages. These criteria are appropriate in analyzing violations of the  X - xcommercial limits during children's programming, since they take into account, inter alia, "the  xynature, circumstances, extent, and gravity of the violation, and, with respect to the violator, the  X"-degree of culpability," as required under  503(b)(2)(D) of the Communications Act.O"J {O%- xԍ In United States Telephone Ass'n. v. FCC, 28 F3rd 1232 (D.C. Cir. 1994), the U.S. Court of Appeals for  {O%- xthe District of Columbia set aside Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991),  {O&- xirecon. denied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993), stating that the guidelines for assessing  xJforfeitures established therein must be subject to public comment to comply with the Administrative Procedure Act.  {O7(- xIn accordance with the court's decision, the Commission released Forfeiture Guidelines Notice of Proposed"7(,))h("  {O- x,Rulemaking in CI Docket No. 956, 10 FCC Rcd 2945 (1995). After receiving and considering comments from the  {OZ- xpublic in that proceeding, the Commission adopted Forfeiture Guidelines Report and Order in CI Docket No. 956,   {O$- x12 FCC Rcd 17087 (1997) (Forfeiture Guidelines). Forfeiture Guidelines became effective on October 14, 1997.  {O- xZ62 Fed. Reg. 43474 (August 14, 1997). However, with regard to (i) all cases pending when Forfeiture Guidelines  xwas adopted, and (ii) all cases involving "violations arising from facts that occurred before the effective date of th[at]  xorder," forfeiture amounts are to be assessed "under the casebycase approach in effect when the violation occurred,"  {OH-in conformity with the standards set out in Section 503 of the Communications Act. Id. at 49.O"",))qqf!"Ԍ  xAs discussed above, WACY(TV) exceeded the children's television commercial limits on five  xoccasions over a period of more than one year and two months. When the Commission delayed  xthe effective date of Section 73.670 of the Rules until January 1, 1992, we stated that "giving the  xadditional time to broadcasters and cable operators before compliance with the commercial limits  xis required will have the effect of enabling broadcasters and cable operators to hone their plans  Xv- xto ensure compliance . . . . " Children's Television Programming, supra, 6 FCC Rcd at 5530  xn.10. Although WACY(TV) appears to have made an effort to comply with the Commission's  xchildren's television commercial limits, that effort apparently was not sufficient in light of the  xkviolations described in the station's renewal application. Further, four of the overages were  xprogramlength commercials. Congress was particularly concerned about programlength  xycommercials because young children often have difficulty distinguishing between commercials  x and programs. S. Rep. No. 227, 101st Cong., 1st Sess. 24 (1989). Given this Congressional  xconcern, the Commission made it clear that programlength commercials, by their very nature,  X - xare extremely serious violations of the children's television commercial limits, stating that the  xprogramlength commercial policy "directly addresses a fundamental regulatory concern, that  xchildren who have difficulty enough distinguishing program content from unrelated commercial  x-matter, not be all the more confused by a show that interweaves program content and commercial  Xd- x matter." Children's Television Programming, supra, 6 FCC Rcd at 2118. Accordingly, the  x[Commission has routinely assessed higher forfeitures for programlength commercials than for  X8- xa greater number of conventional overages. See, e.g., Channel 39 Licensee, Inc. (WDZL(TV), 12 FCC Rcd 14012, 14015 n.3.  xThe number and magnitude of overages at issue here mean that children have been subjected to  xcommercial matter greatly in excess of the limits contemplated by Congress when it enacted the  X- xChildren's Television Act of 1990. Children's Television Programming, supra, 6 FCC Rcd at  x211718. The only reason WACY(TV) cites for the 30second, conventional overage, a  xcommercial make good, does not mitigate or excuse the violation. In this regard, the Commission  xhas repeatedly rejected make goods, human error and/or inadvertence as a basis for excusing  Xm- x=violations of the children's television commercial limits. See, e.g., Kentuckiana Broadcasting,  XX- xMInc. (WFTE(TV)), FCC 9843 (rel. March 20, 1998); UTV of San Francisco, Inc. (KBHKTV),  XC- x10 FCC Rcd 10987 (1995); LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995);  X.- xBuffalo Management Enterprises Corp. (WIVBTV), 10 FCC Rcd 4959 (1995); Act III  X- xBroadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (1995); Ramar Communications,  X- x]Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994). Nor does the fact that the four programlength  x/commercials resulted from the insertion of commercial matter in programming supplied by a  xsyndicator absolve WACY(TV) of responsibility for the violations. The Commission has" ,))qq"  x-consistently held that a licensee's reliance on a program's source or producer for compliance with  xour children's television rules and policies will not excuse or mitigate violations which do occur.  X- xSee, e.g., Max Television of Syracuse, L.P. (WSYT(TV)), 10 FCC Rcd 8905 (1995); Mt. Mansfield  X- xzTelevision, Inc. (WCAXTV), 10 FCC Rcd 8797 (1995); Boston Celtics Broadcasting Limited  X- xOPartnership (WFXT(TV)), 10 FCC Rcd 6686 (1995); WRGB Broadcasting, Inc., MMB  xAdmonition dated August 10, 1994. Furthermore, WACY(TV)'s implementation of policies to  xprevent subsequent violations of the Commission's children's television rules and policies does  Xe- x@not relieve the licensee of liability for violations which have occurred. International  XP- xBroadcasting Corp., 19 FCC 2d 793, 794 (1969); KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993);  X;- xR&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (1994); Mountain States  X& - xkBroadcasting, Inc. (KMSBTV), 9 FCC Rcd 2545, 2546 (1994); WHP Television, L.P., 10 FCC Rcd 4979, 4980 (1995).  X - x Given all of these considerations, WACY(TV)'s violation of Section 73.670 of the Commission's  xzRules on five occasions warrants a forfeiture in the abovespecified amount of $10,000. In a  X - xsimilar case, WTTE, Channel 28 Licensee, Inc. (WTTE(TV)), 12 FCC Rcd 18056 (1997) (Channel  X- x.28 Licensee), we assessed a forfeiture of $10,000 for five violations of the children's television  xcommercial limits consisting of one 30second overage and four programlength commercials.  x>Those violations occurred over a period of approximately two years, and were attributed to  xinadvertence, human error and the insertion of commercial matter in a program by the program's  XF- xsupplier. More recently, in WCGV Licensee, Inc. (WCGVTV), DA 98799 (rel. April 27, 1998),  xwe likewise assessed a $10,000 forfeiture for one 30second overage and four programlength  X- xcommercials. The five violations in WCGV Licensee, Inc. occurred over a period of two years  X- xLand four months, and were attributed to inadvertence and human error. Compared to Channel  X- x28 Licensee and WCGV Licensee, Inc., WACY(TV) had the same number and type of violations,  xand cites essentially the same reasons for their occurrence. Though WACY(TV)'s violations  X- xoccurred over a shorter period of time than the violations involved in Channel 28 Licensee and  X- xyWCGV Licensee, Inc., we note that the period of time over which the overages occurred is only  xyone of the five criteria we consider in assessing the forfeiture amount. For all of these reasons,  X- xjwe find the violations here, on balance, to be comparable to those in Channel 28 Licensee and  Xn-WCGV Licensee, Inc. Therefore, we conclude that a comparable forfeiture is appropriate.  xAs for the December 5, 7 and 9, 1994 broadcasts of a commercial for Sega Pico featuring a  xcharacter from "Sonic the Hedgehog" during the "Sonic the Hedgehog" program, they appear to  X- xhave violated the Commission's policy concerning hostselling, see supra  2, which involves  X- xLprogramrelated characters promoting any product during the character(s)' program. See, e.g.,  X - x[PonceNicasio Broadcasting (KCMY(TV)), 10 FCC Rcd 6728 (1995). Hostselling is a practice  xthat the Commission has denounced because it takes unfair advantage of the trust that children  X"- xplace in program characters. Children's Television Recon, 6 FCC Rcd at 5097; Action for  X#- xChildren's Television, 50 FCC 2d at 1617. In this regard, the Commission has stated that "host x.selling encompasses any character endorsement not just direct vocal appeals that has the  xeffect of confusing a child viewer from distinguishing between program and nonprogram  Xf&- xmaterial." WHYY, Inc. (WHYYTV), 7 FCC Rcd 7123 (1992). For example, the Commission has  xydetermined that "advertisements featuring the same type of animation that is regularly featured"Q',))qq%"  X- xin the accompanying program constitutes hostselling." Id. Based on the information before us,  xwe believe the commercials broadcast on December 5, 7 and 9, 1994, violated our hostselling  X-policy. We therefore ADMONISH you to avoid such situations in the future.  X-  x.With respect to the forfeiture assessed here, you are afforded a period of thirty (30) days from  xthe date of this letter "to show, in writing, why a forfeiture penalty should not be imposed or  xshould be reduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be  ximposed or should be reduced shall include a detailed factual statement and such documentation  x0and affidavits as may be pertinent." Section 1.80(f)(3) of the Commission's Rules, 47  xC.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.  xNotwithstanding the substantial nature of the violations described here and the severity with  xwhich we regard them, we find you qualified to remain a Commission licensee and conclude that  xgrant of your application would serve the public interest, convenience and necessity. Therefore,  x.the license renewal application of Ace TV, Inc., for station WACY(TV), Appleton, Wisconsin, File No. BRCT970801KH, IS HEREBY GRANTED.  X{- x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Roy J. Stewart x` `  hh@Chief, Mass Media Bureau Enclosures cc: Veronica D. McLaughlin, Esq."",))qq " LGallo/vsd/MMB n:\winapps\wpwin\kidvid\wacy.nal cc address: Ace TV, Inc. Licensee, WACY(TV) c/0 Veronica D. McLaughlin, Esq. Fisher Wayland Cooper Leader & Zaragoza, L.L.P. 2001 Pennsylvania Avenue, N.W., Suite 400 Washington, D.C. 200061851 $//ACE TV, INC., WACY(TV) (Appleton, WI) DA 981390//$ $/ 300.503(b) FORFEITURES (NAL) /$  X4-$/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$#x6X@`7X@#  ?<#x6X@`7X@#