******************************************************** 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 In reply refer to: 1800E1-LG December 9, 1998 Released: December 10, 1998 CERTIFIED MAIL - RETURN RECEIPT REQUESTED New DMIC, Inc. Licensee, KDFI-TV 101 S.E. Monroe P.O. Box 2229 Topeka, KS 66603 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of thirteen thousand, five hundred dollars ($13,500) 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). These commercial limitations became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). On April 1, 1998, you filed an application for renewal of license (FCC Form 303-S) for station KDFI- TV, Dallas, Texas (File No. BRCT-980401KL). In response to Section III, Question 4 of that application, you certify that during the previous license term station KDFI-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 that application, you indicate that between August 1, 1995, and February 11, 1998, station KDFI-TV violated the children's television commercial limits on 20 occasions. Of these 20 overages, seven were 30 seconds in duration, one was 45 seconds in duration, three were one minute in duration, four were one minute and 15 seconds in duration, one was two and one-half minutes in duration and four were program-length commercials. With respect to the 16 conventional overages, you state that, at the time they occurred, DMIC Corporation was the licensee of station KDFI-TV, and that you subsequently acquired the station's license pursuant to the Commission's grant of a pro forma assignment of license application. In turning to the other violations, you maintain that three program-length commercials occurred when station KDFI-TV aired a Spiderman/Spiderforce spot, featuring the Spiderman character, during the "Spiderman" program. Those three commercial spots, you maintain, were transmitted within FOX Children's Network programming, a daily package of children's programming which airs on station KDFI-TV pursuant to the terms of your time brokerage agreement with the Fox Network (Fox). As for the remaining program-length commercial, that violation occurred when station KDFI-TV aired a Toybiz spot, featuring the X-Men and Spiderman characters, during the "Spiderman" program. You assert, however, that, since February 11, 1998, the date on which the last reported program-length commercial occurred, station KDFI-TV instituted additional measures to ensure compliance with the children's television commercial limits. These measures include: (1) the installation of a new computer system which monitors and alerts the station's employees of potential overages; (2) the assignment of responsibility to two additional employees, along with the Traffic Director, to preview commercials prior to broadcast in order to determine compliance with the prohibition on host-selling and program-length commercials; and (3) the adoption of a "Kids Advertiser Spot Alert Checklist" to alert programming staff and master control operators of the specific spots they may not air during specified programming. Station KDFI-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on 20 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, New DMIC, Inc. (New DMIC) is hereby advised of its apparent liability for forfeiture in the amount of thirteen thousand, five hundred dollars ($13,500) 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 KDFI-TV exceeded the children's television commercial limits on 20 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, supra, 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, 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 (1997). The violations occurred, moreover, over an extended period of approximately two and one-half years. When the 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, supra, 6 FCC Rcd at 5530 n.10. Although New DMIC 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 KDFI-TV's renewal application. The fact that three of the reported program-length commercials occurred in programming provided by Fox does not absolve New DMIC 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 (MMB 1995); Mt. Mansfield Television, Inc. (WCAX-TV), 10 FCC Rcd 8797 (MMB 1995); Boston Celtics Broadcasting Limited Partnership (WFXT(TV)), 10 FCC Rcd 6686 (MMB 1995); WRGB Broadcasting, Inc., MMB Admonition dated August 10, 1994. New DMIC offers no explanation for its remaining violations of the children's television commercial limits, and seems to suggest that it is not responsible for the conventional overages which occurred when DMIC Corporation was the licensee of the station. We reject this suggestion, however, since a pro forma assignment transaction involves no substantial change in ownership or control of the station. Finally, while corrective actions may have been taken to prevent subsequent violations of the children's television rules and policies, this does not relieve New DMIC of liability for the violations which have occurred. See, e.g., WHP Television, L.P. (WHP-TV), 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. (KEVN-TV), 8 FCC Rcd 5077, 5078 (MMB 1993); International Broadcasting Corp., 19 FCC 2d 793, 794 (1969). Given all of these considerations, station KDFI-TV's violation of Section 73.670 of the Commission's rules on 20 occasions, four of which were program-length commercials, warrants a forfeiture in the above-specified amount of $13,500. In a similar case, TV 17 Unlimited, Inc. (WXMI(TV)), 13 FCC Rcd 8978 (MMB 1997) (TV 17 Unlimited), we assessed a forfeiture of $13,500 forfeiture for 18 violations which occurred over a period of approximately four years and five months. Of those violations, three were less than 30 seconds in duration, eight were 30 seconds in duration and seven were program-length commercials. Another case, Cannell Cleveland, L.P. (WUAB(TV)), 12 FCC Rcd 19462 (MMB 1997) (Cannell Cleveland), involved 14 commercial limits violations, occurring over a period of approximately three years and three months, for which a $13,000 forfeiture was assessed. Of those 14 violations, three were less than 30 seconds in duration, five were 30 seconds in duration and six were program-length commercials. In both cases, the licensees attributed their respective violations to the inclusion of program-related commercial matter in programming supplied to the station by a program syndicator and/or a television network, human error and/or inadvertence. Here, compared to TV 17 Unlimited and Cannell Cleveland, station KDFI-TV had fewer program- length commercials, but more total violations, including more conventional overages of substantially longer durations. The violations in all three cases occurred over an extended period of at least two years, and the licensees had at least one explanation for their respective, reported overages in common. Based on these considerations, we find the violations in the instant case, on balance, comparable to those in TV 17 Unlimited and Cannell Cleveland, but closest to those involved in TV 17 Unlimited. Therefore, we conclude that a $13,500 forfeiture is appropriate. You are afforded a period of 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 New DMIC, Inc., for station KDFI-TV, Dallas, Texas, File No. BRCT- 980401KL, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc w/ encl: John E. Fiorini, III, Esq. LGallo/vsd/MMB n:\winapps\wpwin\kidvid\kdfi.nal $//New DMIC, Inc., KDFI-TV (Dallas, Texas) DA 98-2523 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$ cc address: New DMIC, Inc. Licensee, KDFI-TV c/o John E. Fiorini, III, Esq. Gardner, Carton & Douglas 1301 K Street, NW, Suite 900 Washington, DC 20005