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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"",>,>,>,""""H2H2H2H2H2H2H2H   x X-w  Federal Communications Commission`)(#5 DA 982330 ă  yxdddy  Federal Communications Commission *Washington, D.C. 20554 `"(# :November 16, 1998  Xv-`'(# Released: November 17, 1998 ă  X1- 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 ($7,500) pursuant to Section 503(b) of the   LCommunications Act of 1934, as amended, 47 U.S.C.  503(b), under authority delegated to the   jChief of the Mass Media Bureau by Section 0.283 of the Commission's Rules, 47 C.F.R.  0.283,   for repeated violations of the Commission's rule limiting the amount of commercial matter that may be aired during children's programming.  X-  >In the Children's Television Act of 1990, Pub. L. No. 101437, 104 Stat. 9961000, codified at  X-  =47 U.S.C. Sections 303a, 303b and 394, Congress directed the Commission to adopt rules, inter  X-  Lalia, limiting the amount of commercial matter that television stations may air during children's   programming, and to consider in its review of television license renewals the extent to which the   licensee has complied with such commercial limits. Accordingly, the Commission adopted   zSection 73.670 of the Rules, 47 C.F.R.  73.670, which limits the amount of commercial matter   which may be aired during children's programming to 10.5 minutes on weekends and 12 minutes   Lon weekdays. The Commission also stated that a program associated with a product, in which   ?commercials for that product are aired, would cause the entire program to be counted as  X-  [commercial time (a "programlength commercial"). Children's Television Programming, 6 FCC  X-  @Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). In addition, the  X -  =Commission reiterated its longstanding policy against "hostselling," i.e, "the use of program   italent to deliver commercials," including "endorsements or selling by animated cartoon characters  X"-  las well as `live' program hosts." Id. at 2127 n.147, 6 FCC Rcd at 5097; see also Action for  X#-  Children's Television, 50 FCC 2d 1, 8, 1617 (1974). These commercial limitations became  Xx$-  {effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991)."c%0*&&qq $"Ԍ  ]ԙOn February 2, 1998, you filed an application for renewal of license (FCC Form 303S) for   station KXVO(TV), Omaha, Nebraska (File No. BRCT980202LB). 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   kSection 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 programlength commercials. The first   programlength commercial, which you state may also raise a potential hostselling violation,   ^occurred on October 6, 1995, when KXVO(TV) aired 30 seconds of commercial matter  X1-  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 doublecheck commercial matter   contained in children's programming to verify compliance with the commercial limits. The other   two productlength commercials you describe occurred on April 17 and April 22, 1996, when a   mcommercial 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   Mcommercial 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 programlength commercials,   Mconstitutes 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 ($7,500)   Lfor KXVO(TV)'s apparent repeated violation of Section 73.670 of the Commission's Rules. The   amount specified was reached after consideration of the factors set forth in Section 503(b)(2) of   the Communications Act, and, in particular, the following criteria: (1) the number of instances  Xg-  of commercial overages; (2) the length and nature of each such overage; (3) the period of time   over which such overages occurred; (4) whether or not the licensee established an effective   program to ensure compliance; and (5) the specific reasons that the licensee gives for the   [overages. These criteria are appropriate in analyzing violations of the commercial limits during  X -  children's programming, since they take into account, inter alia, "the nature, circumstances,   jextent, and gravity of the violation, and, with respect to the violator, the degree of culpability,"  X-as required under  503(b)(2)(D) of the Communications Act.) {OX"-  ԍ In United States Telephone Ass'n. v. FCC, 28 F3rd 1232 (D.C. Cir. 1994), the U.S. Court of Appeals for  {O"#-  the District of Columbia set aside Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991),  {O#-  irecon. denied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993), stating that the guidelines for assessing   Jforfeitures established therein must be subject to public comment to comply with the Administrative Procedure Act.  {O~%-  In accordance with the court's decision, the Commission released Forfeiture Guidelines Notice of Proposed"~%0*&&%"  {O-  ,Rulemaking in CI Docket No. 956, 10 FCC Rcd 2945 (1995). After receiving and considering comments from the  {OZ-  public in that proceeding, the Commission adopted Forfeiture Guidelines Report and Order in CI Docket No. 956,   {O$-  12 FCC Rcd 17087 (1997) (Forfeiture Guidelines). Forfeiture Guidelines became effective on October 14, 1997.  {O-  Z62 Fed. Reg. 43474 (August 14, 1997). However, with regard to (i) all cases pending when Forfeiture Guidelines   was adopted, and (ii) all cases involving "violations arising from facts that occurred before the effective date of th[at]   order," 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 171089. Also under  {O-  xthe Forfeiture Guidelines, the Commission retained its "discretion . . . to issue forfeitures on a casebycase basis,  {O-under [its] general forfeiture authority contained in Section 503 of the Act. Id. at 17099. "0*&&qq"Ԍ  ԙWhen 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  X-  >and cable operators to hone their plans to ensure compliance . . . . " Children's Television  X-  Programming, supra, 6 FCC Rcd at 5530 n.10. Although KXVO(TV) appears to have made an   leffort 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 programlength commercials. Congress was   particularly concerned about programlength commercials because young children often have   Ldifficulty 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 X -  length commercials, by their very nature, are extremely serious violations of the children's   0television commercial limits, stating that the programlength commercial policy "directly   addresses a fundamental regulatory concern, that children who have difficulty enough   ydistinguishing program content from unrelated commercial matter, not be all the more confused  X -  by a show that interweaves program content and commercial matter." Children's Television  X-  Programming, supra, 6 FCC Rcd at 2118. Accordingly, the Commission has routinely assessed   higher forfeitures for programlength commercials than for a greater number of conventional  Xj-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  X-  Children's Television Act of 1990. Children's Television Programming, supra, 6 FCC Rcd at   211718. The fact that the programlength commercials occurred due to errors committed by the   kWB Television Network and one of the station's advertisers does not absolve KXVOTV 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  X-  will not excuse or mitigate violations which do occur. See, e.g., Max Television of Syracuse, L.P.  X-  .(WSYT(TV)), 10 FCC Rcd 8905 (1995); Mt. Mansfield Television, Inc. (WCAXTV), 10 FCC Rcd  Xu-  L8797 (1995); Boston Celtics Broadcasting Limited Partnership (WFXT(TV)), 10 FCC Rcd 6686  X`-  (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"K0*&&qq?"   Lchildren's television rules and policies relieve the licensee of liability for violations which have  X-  koccurred. International Broadcasting Corp., 19 FCC 2d 793, 794 (1969); KEVN, Inc., 8 FCC  X-  Rcd 5077, 5078 (1993); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (1994);  X-  Mountain States Broadcasting, Inc. (KMSBTV), 9 FCC Rcd 2545, 2546 (1994); WHP Television,  X-L.P., 10 FCC Rcd 4979, 4980 (1995).  X~-  L 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 abovespecified amount of $7,500. In a  XP-  similar case, LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995) (LeSea  X;-  Broadcasting), we assessed a forfeiture of $7,500 forfeiture for three commercial overages, all   programlength 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,  X -  Nin Second Generation of Iowa, Ltd. (KFXA(TV)), DA 98304 (rel. Feb. 19, 1998) (Second  X -  Generation), and Dubuque TV Limited Partnership (KFXB(TV)), DA 98305 (rel. Feb. 19, 1998)  X-  (Dubuque TV), we likewise assessed forfeitures in the amount of $7,500, each case involving   three programlength commercials which occurred over a fourday period and were attributed to  Xt-  /inadvertent scheduling errors. Compared to LeSea Broadcasting, Second Generation and  X_-  yDubuque 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  X3-  zperiod of time than the violations involved in LeSea Broadcasting, Second Generation and  X-  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  X-  the violations here, on balance, to be comparable to those in LeSea Broadcasting, Second  X-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  X-  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 hostselling,  Xn-  ksee supra 2, which involves programrelated characters promoting any product during the  XY-  character(s)' program. See, e.g., PonceNicasio Broadcasting (KCMY(TV)), 10 FCC Rcd 6728   (1995). Hostselling is a practice that the Commission has denounced because it takes unfair  X--  jadvantage of the trust that children place in program characters. Children's Television Recon,  X-  M6 FCC Rcd at 5097; Action for Children's Television, 50 FCC 2d at 1617. In this regard, the   Commission has stated that "hostselling encompasses any character endorsement not just direct   kvocal appeals that has the effect of confusing a child viewer from distinguishing between  X!-  program and nonprogram material." WHYY, Inc. (WHYYTV), 7 FCC Rcd 7123 (1992). For   example, the Commission has determined that "advertisements featuring the same type of  X#-  animation that is regularly featured in the accompanying program constitutes hostselling." Id.   -Based on the information before us, we believe the October 6, 1995 advertisement was a violation  X}%-of our hostselling policy. We therefore ADMONISH you to avoid such situations in the future. "}%0*&&qq $"Ԍ X-   ęAs for the forfeiture assessed here, you are afforded a period of thirty (30) days from the date   Lof this letter "to show, in writing, why a forfeiture penalty should not be imposed or should be   yreduced, 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. BRCT980202LB, IS HEREBY GRANTED.  X - ` `  hh,VFEDERAL COMMUNICATIONS COMMISSION ` `  hh,VRoy J. Stewart ` `  hh,VChief, Mass Media Bureau Enclosures cc: Peter Siembab, Esq. "e0*&&qq}" 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 200366802  XK- $// GARY M. COCOLA, KXVO(TV) (Omaha, Nebraska) DA 982330/$  X-$/ 300.503(b) FORFEITURES (NAL) /$  X-$/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$#x6X@`7X@#  ?<#x6X@`7X@#