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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 October 26, 1998 Released: October 27, 1998 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Paramount Stations Group of Houston, Inc. Licensee, KTXH(TV) c/o Anne C. Lucey, Esq. Viacom Inc. 1501 M Street, NW, Suite 1100 Washington, DC 20005 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 stated 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). In addition, the Commission reiterated its long-standing policy against "host-selling," i.e, "the use of program talent to deliver commercials," including "endorsements or selling by animated cartoon characters as well as `live' program hosts." Id. at 2127 n.147, 6 FCC Rcd at 5097; see also Action for Children's Television, 50 FCC 2d 1, 8, 16-17 (1974). The commercial limitations became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). On March 31, 1998, you filed an application for renewal of license (FCC Form 303-S) for station KTXH(TV), Houston, Texas (File No. BRCT-980331KT). In response to Section III, Question 4 of that application, you certify that, during the previous license term, station KTXH(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 the renewal application, you indicate that between February 7, 1993, and August 22, 1995, station KTXH(TV) violated the children's television commercial limits on five occasions. You characterize those five violations as consisting of one 30-second overage, which occurred in a half hour "island" of children's programming, and four program-length commercials. As for the program-length commercials, you state that on February 7 and 14, 1993, station KTXH(TV) aired a commercial for a "G.I. Joe" product during the "G.I. Joe" program. The third program-length commercial occurred on December 8, 1993, when a commercial for the "Sega Genesis video game player, which fleetingly displayed a small `Sonic the Hedgehog' character in the upper corners of the screen and a moving game piece visually suggestive of, although not identical to, another `Sonic the Hedgehog' character, was aired during the `Sonic the Hedgehog' program." The remaining program-length commercial you describe occurred on March 14, 1994, when a Honey Nut Cheerios commercial that included the "Sonic the Hedgehog" character aired during the "Sonic the Hedgehog" program. You attribute all five overages to human error and assert that, following each one, measures were implemented to prevent future violations. On August 5, 1998, you filed an amendment to update and correct the information in station KTXH(TV)'s renewal application. First, to update information, you state that station KTXH(TV) violated the children's television commercial limits on one occasion since its renewal application was filed. Specifically, on July 8, 1998, a commercial for a Buena Vista Home video product, "The Spirit of Mickey," which contained a still image of Donald Duck on the cover of the home video, was mistakenly integrated by Buena Vista into its own "Mighty Ducks Quack Pack" program. You attribute this violation to a disruption in the station's compliance procedures resulting from the sudden resignation of station KTXH(TV)'s traffic manager, an event you contend constitutes an "extenuating circumstance" which should be considered in determining whether to mitigate the violation. Second, to correct information, you state that, in Exhibit 3 to the renewal application, you mischaracterized as a program-length commercial the March 14, 1994 incident involving the broadcast of a Honey Nut Cheerios commercial during the "Sonic the Hedgehog" program. That commercial, you assert, included a "Sonic the Hedgehog" character, but promoted cereal and not a product related to the "Sonic the Hedgehog" program. You assert, therefore, that this incident should instead be classified as host selling and subject to an admonition. Station KTXH(TV)'s record during the last license term of exceeding the commercial limits on children's television programming on five occasions, four 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, Paramount Stations Group of Houston, Inc. (Paramount) 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, station KTXH(TV) exceeded the children's television commercial limits on five occasions. Overages of this number and nature 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, 6 FCC Rcd at 2117-18. In this regard, four 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, 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. (1997). The violations occurred, moreover, over an extended period of approximately five years and five months. When it delayed the effective date of Section 73.670 of the Rules until January 1, 1992, the Commission 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, 6 FCC Rcd at 5530 n.10. Although Paramount 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. The only reason Paramount cites for four of the commercial overages, human error, does not mitigate or excuse such violations. In fact, the Commission has repeatedly rejected human error and inadvertence 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 (MMB 1995) (LeSea Broadcasting); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959 (MMB 1995); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (MMB 1995); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (MMB 1994). As for Paramount's contention that the sudden resignation of station KTXH(TV)'s traffic manager constitutes an "extenuating circumstance" which should have a mitigating effect on the July 8, 1998 program-length commercial, we disagree. Personnel changes at a station, including departures, even when sudden, are foreseeable events which a licensee should account for in creating and implementing a plan to ensure compliance with the children's television commercial limits. The fact that Paramount failed to do so, resulting in the July 8, 1998 violation, reveals a shortcoming in its compliance program which does not present an "extenuating circumstance" warranting a reduction in the assessed forfeiture amount. Furthermore, while corrective actions may have been taken to prevent subsequent violations of the children's television rules and policies, this does not relieve Paramount of liability for the violations which have occurred. See, e.g., WHP Television, L.P., 10 FCC Rcd 4979, 4980 (MMB 1995); Mountain States Broadcasting, Inc. (KMSB-TV), 9 FCC Rcd 2545, 2546 (MMB 1994); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (MMB 1994); KEVN, Inc., 8 FCC Rcd 5077, 5078 (MMB 1993); International Broadcasting Corp., 19 FCC 2d 793, 794 (1969). Given all of these considerations, station KTXH(TV)'s violation of Section 73.670 of the Commission's rules on five occasions, four of which were program-length commercials, warrants a forfeiture in the above-specified amount of $10,000. In a recent case, Ace TV, Inc. (WACY(TV)), DA 98-1390 (re. July 15, 1998) (Ace TV), we assessed a $10,000 forfeiture for five violations of the children's television commercial limits, consisting of one 30-second overage and four program- length commercials. Those violations occurred over a period of approximately one year and two months, and were attributed to either a commercial make good or to the insertion of program-related commercial matter in programming supplied to the station by a program syndicator. In another similar case, WCGV Licensee, Inc. (WCGV-TV), 13 FCC Rcd 8624 (MMB 1998) (WCGV Licensee), we likewise assessed a $10,000 forfeiture for five violations, consisting of one 30-second overage and four program-length commercials. See also WTTE Channel 28 Licensee, Inc. (WTTE(TV)), 12 FCC Rcd 18056 (MMB 1997). The violations in WCGV Licensee, Inc. occurred over a period of two years and four months, and were attributed to inadvertence and human error. Compared to Ace TV and WCGV Licensee, Inc., station KTXH(TV) had the same number and type of violations. In addition, the licensee in each of these three cases cited reasons for its violations which had previously been rejected by the Commission. Though station KTXH(TV)'s violations occurred over a longer period of time than the violations involved in Ace TV and WCGV Licensee, Inc., we note that the period of time over which the overages occurred is only one of the five criteria we consider in assessing the forfeiture amount. For all of these reasons, we find the violations here, on balance, to be comparable to those in Ace TV and WCGV Licensee, Inc. Therefore, we conclude that a comparable forfeiture is appropriate. As for the March 14, 1994 broadcast of a commercial for Honey Nut Cheerios featuring a character from "Sonic the Hedgehog" during the "Sonic the Hedgehog" program, it appears to have violated the Commission's policy concerning host-selling, see supra  2, which involves program-related characters promoting any product during the character(s)' program. See, e.g., Ponce-Nicasio Broadcasting (KCMY(TV)), 10 FCC Rcd 6728 (1995). Host-selling is a practice that the Commission has denounced because it takes unfair advantage of the trust that children place in program characters. Children's Television Recon, 6 FCC Rcd at 5097; Action for Children's Television, 50 FCC 2d at 16-17. In this regard, the Commission has stated that "host-selling encompasses any character endorsement -- not just direct vocal appeals -- that has the effect of confusing a child viewer from distinguishing between program and non-program material." WHYY, Inc. (WHYY-TV), 7 FCC Rcd 7123 (1992). For example, the Commission has determined that "advertisements featuring the same type of animation that is regularly featured in the accompanying program constitutes host-selling." Id. Based on the information before us, we believe the commercial broadcast on March 14, 1994, violated our host-selling policy. We therefore ADMONISH you to avoid such situations in the future. With respect to the forfeiture assessed here, 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 Paramount Stations Group of Houston, Inc., for station KTXH(TV), Houston, Texas, File No. BRCT-980331KT, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures