******************************************************** 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 November 16, 1998 Released: November 17, 1998 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Mr. Gary M. Cocola Licensee, KXVO(TV) 706 W. Herndon Avenue Fresno, CA 93650 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of seven thousand, five hundred dollars ($7,500) 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 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). These commercial limitations became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). On February 2, 1998, you filed an application for renewal of license (FCC Form 303-S) for station KXVO(TV), Omaha, Nebraska (File No. BRCT-980202LB). In response to Section III, Question 4 of that application, you certify that during the previous license term KXVO(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 C to that application, you indicate that between October 6, 1995, and April 22, 1996, KXVO(TV) violated the children's television commercial limits on three occasions, all of which were program-length commercials. The first program-length commercial, which you state may also raise a potential host-selling violation, occurred on October 6, 1995, when KXVO(TV) aired 30 seconds of commercial matter containing a depiction of certain Warner Bros. characters during the Warner Bros. Kids' Block, which also featured Warner Bros. characters. You assert that, in response to this violation, the WB Television Network instituted remedial steps to prevent a recurrence of such a violation, including training Standards and Practices representatives to double-check commercial matter contained in children's programming to verify compliance with the commercial limits. The other two product-length commercials you describe occurred on April 17 and April 22, 1996, when a commercial advertising a Gargoyles product ran during KXVO(TV)'s broadcast of the "Gargoyles" program. You attribute these violations to the advertiser's failure to discose that its commercial content conflicted with any children's programming. In addition, you claim that upon learning of the violations, KXVO(TV), "placed a conflict code on the Gargoyles program as well as the advertising to prevent any further violation." KXVO(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on three occasions, all 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, Gary M. Cocola is hereby advised of his apparent liability for forfeiture in the amount of seven thousand, five hundred dollars ($7,500) for KXVO(TV)'s 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. 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 KXVO(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. Further, all 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 number and magnitude of overages at issue here 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. The fact that the program-length commercials occurred due to errors committed by the WB Television Network and one of the station's advertisers does not absolve KXVO-TV of responsibility for the violations. 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. Nor does the fact that KXVO(TV) implemented policies to prevent subsequent violations of the Commission's children's television rules and policies relieve the licensee of liability for violations which have occurred. International Broadcasting Corp., 19 FCC 2d 793, 794 (1969); KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (1994); Mountain States Broadcasting, Inc. (KMSB-TV), 9 FCC Rcd 2545, 2546 (1994); WHP Television, L.P., 10 FCC Rcd 4979, 4980 (1995). Given all of these considerations, KXVO(TV)'s violation of Section 73.670 of the Commission's Rules on three occasions warrants a forfeiture in the above-specified amount of $7,500. In a similar case, LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995) (LeSea Broadcasting), we assessed a forfeiture of $7,500 forfeiture for three commercial overages, all program-length commercials, which occurred over a period of approximately two months. There, the licensee attributed the violations to the failure of WHKE(TV)'s master control operator to delete commercial or promotional announcements which were included in, and contained material related to, the children's programs provided by an independent program supplier. More recently, in Second Generation of Iowa, Ltd. (KFXA(TV)), DA 98-304 (rel. Feb. 19, 1998) (Second Generation), and Dubuque TV Limited Partnership (KFXB(TV)), DA 98-305 (rel. Feb. 19, 1998) (Dubuque TV), we likewise assessed forfeitures in the amount of $7,500, each case involving three program-length commercials which occurred over a four-day period and were attributed to inadvertent scheduling errors. Compared to LeSea Broadcasting, Second Generation and Dubuque TV, KXVO(TV) had the same number and type of violations, and cites essentially the same reasons for their occurrence. Though KXVO(TV)'s violations occurred over a longer period of time than the violations involved in LeSea Broadcasting, Second Generation and Dubuque TV, 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 LeSea Broadcasting, Second Generation and Dubuque TV. Therefore, we conclude that a comparable forfeiture is appropriate. With respect to an additional matter, the October 6, 1995 broadcast of commercial matter depiciting Warner Bros. characters during the Warner Bros. Kids' Block, which featured Warner Bros. characters, also 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 October 6, 1995 advertisement was a violation of our host-selling policy. We therefore ADMONISH you to avoid such situations in the future. As for 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 Gary M. Cocola, for station KXVO(TV), Omaha, Nebraska, File No. BRCT- 980202LB, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Peter Siembab, Esq. LGallo/vsd/MMB n:\winapps\wpwin\kidvid\kxvo.nal cc address: Mr. Gary M. Cocola Licensee, KXVO(TV) c/o Peter Siembab, Esq. Dow, Lohnes & Albertson, P.L.L.C. 1200 New Hampshire Avenue, NW, Suite 800 Washington, DC 20036-6802 $// GARY M. COCOLA, KXVO(TV) (Omaha, Nebraska) DA 98-2330/$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$