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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 Facility I.D. #61978 In reply refer to: 1800E1-LG August 19, 1999 Released: August 20, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Spokane Television, Inc. Licensee, Station KXLY-TV 500 West Boone Avenue Spokane, WA 99201 Dear Licensees: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of twenty thousand dollars ($20,000), pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), 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 per hour on weekends and 12 minutes per hour on weekdays. The Commission also reaffirmed and clarified its long-standing policy against "program-length commercials." The Commission defined a "program-length commercial" as "a program associated with a product, in which commercials for that product are aired," and stated that the entire duration of any program-length commercial would be counted as commercial matter for the purpose of the children's television commercial limits. Children's Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). The commercial limits became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). On September 30, 1998, Spokane Television, Inc. (Spokane TV) filed a license renewal application (FCC Forms 303-S) for station KXLY-TV, Spokane, Washington (File No. BRCT-980930KV). In response to Section III, Question 5 of that application, you certify that, during the previous license term, station KXLY-TV complied with the limits on commercial matter in children's television programming specified in Section 73.670 of the Commission's Rules. However, in Exhibit B and a May 12, 1999 amendment to the renewal application, you indicate that between May 9, 1994, and July 10, 1996, station KXLY-TV violated the children's television commercial limits on 24 occasions. Of these overages, one was 30 seconds in duration, one was one minute in duration and 22 you characterize as program-length commercials. You assert that the two conventional overages occurred as a result of human error, whereas the 22 program-length commercials were placed by a Canadian advertising agency. Finally, you claim to have taken aggressive steps to prevent violations of the commercial limits, and contend that, in assessing how to address station KXLY-TV's overages, "it is important for the Commission to be aware of Spokane Television's unrelenting dedication to serving the educational and informational needs of the children in our community. . . ." To this end, you include a list of station KXLY-TV's educational programming, as well as a description of the station's other efforts to benefit children in its community of service. Station KXLY-TV's record of exceeding the children's television commercial limits on 24 occasions during the last license term constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Spokane TV is hereby advised of its apparent liability for forfeiture in the amount of twenty thousand dollars ($20,000) for its apparent repeated violation of Section 73.670 of the Commission's Rules. The amount specified was reached after consideration of 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 KXLY-TV exceeded the children's television commercial limits on 24 occasions, 22 of which were program-length commercials. 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. Furthermore, 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. We note, too, that the violations occurred over an extended period of more than two years. When it delayed the effective date of Section 73.670 of the Rules from October 1, 1991, 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 Spokane TV appears to have made an effort to comply with the children's television commercial limits, that effort apparently was not sufficient in light of the violations described in station KXLY-TV's renewal application. The only reason cited for the two conventional overages, human error, does not mitigate or excuse them. The Commission has repeatedly rejected human error 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); 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). While the program-length commercials occurred due to placement of the spots by a Canadian advertising agency, this does not absolve Spokane TV of responsibility for those violations. In fact, the Commission has consistently held that a licensee's reliance on the source or producer of a commercial or program 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. Nor does Spokane TV's implementation of policies to prevent subsequent violations of the children's television commercial limits relieve it 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, the violation of Section 73.670 of the Commission's Rules by station KXLY-TV on 24 occasions, 22 of which were program-length commercials, warrants a forfeiture in the above-specified amount of $20,000. This forfeiture amount is consistent with the forfeitures assessed in other cases. For example, in Koplar Communications Television, L.L.C. (KPLR-TV), 13 FCC Rcd 4523 (MMB 1998) (Koplar Communications), a $20,000 forfeiture was assessed for 34 violations of the children's television commercial limits which occurred over a period of two years and six months. Of those violations, five were less than 30 seconds in duration, eight were 30 seconds or more but less than 60 seconds in duration, one was 60 seconds in duration and 20 were program-length commercials. The licensee in that case attributed all but one of the 34 violations to inadvertence and/or human error, and asserted that remedial actions had been taken to prevent the recurrence of such violations. In another case, Meredith Corporation (WOFL(TV)), 12 FCC Rcd 2387 (MMB 1997) (Meredith), a $20,000 forfeiture was assessed for 33 violations of the children's television commercial limits which occurred over a period of more than four years and five months. Of those violations, one was 15 seconds in duration, eight were 30 seconds in duration, three were one minute in duration, one was one minute and 30 seconds in duration, one was three minutes and 30 seconds in duration and 19 were program-length commercials. The conventional overages were attributed to inadvertence, human error and/or faulty equipment, whereas the program-length commercials were attributed to human error by station employees, or to the inclusion of program-related commercial matter into the programs by the program producers or suppliers. The licensee in Meredith asserted, moreover, that corrective actions were taken after each of the violations. When they are compared, several similarities may be drawn between Koplar Communications, Meredith and the instant case. Not only did the violations in each case occur over an extended period of at least two years, but all three licensees offered virtually the same reasons for their respective violations and asserted that they established policies and procedures to prevent future violations. By way of contrast, however, station KXLY-TV reported fewer total overages, but more program-length commercials, than the stations in Koplar Communications and Meredith. In this vein, we note that 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). For these reasons, we find the violations in the instant case, on balance, comparable to those in Koplar Communications and Meredith, and conclude that an appropriate forfeiture for station KXLY-TV's violations of the children's television commercial limits is $20,000. 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 Spokane Television, Inc. for station KXLY-TV, Spokane, Washington, File No. BRCT-980930KV, is hereby GRANTED, subject to the condition that, on December 31, 2006, or by such other date as the Commission may establish in the future under Section 309(j)(14)(A) and (B) of the Communications Act, the licensee shall surrender either its analog or its digital television channel for reallocation or reassignment pursuant to Commission regulations. The channel retained by the licensee will be used to broadcast digital television only after this date. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc w/ encl: Harvey Kellman, Esq.