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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 Facility I.D. #73875 August 30, 1999 Released: September 1, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED WPGH Licensee, LLC Licensee, Station WPGH-TV 2000 West 41st Street Baltimore, MD 21211 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of fifteen thousand dollars ($15,000) 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). These commercial limitations became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). On April 1, 1999, you filed an application for renewal of license (FCC Form 303-S) for station WPGH-TV, Pittsburgh, Pennsylvania (File No. BRCT-990401KQ). In response to Section III, Question 5 of that application, you certify that, during the previous license term, station WPGH-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 4 to that application, you indicate that between November 28, 1994, and April 11, 1998, station WPGH-TV exceeded the children's television commercial limits on 16 occasions. Of those 16 overages, one was 30 seconds in duration, one was 90 seconds in duration and 14 were program-length commercials. According to your description of each overage, 13 resulted from human error, inadvertence or misunderstanding of the commercial limits rule and three resulted from errors made by the syndicator who supplied the station with the programs and commercial material at issue. In addition, you recount the corrective measures taken by station WPGH-TV following each incident to ensure future compliance with the children's television commercial limits. Station WPGH-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on 16 occasions constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, WPGH Licensee, LLC is hereby advised of its apparent liability for forfeiture in the amount of fifteen thousand dollars ($15,000) 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 WPGH-TV exceeded the children's television commercial limits on 16 occasions, 14 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, 6 FCC Rcd at 2117-18. We note that 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). Thus, in Children's Television Programming, 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." 6 FCC Rcd at 2118. Accordingly, in interpreting and applying the Commission's policies regarding program-length commercials, we are concerned about and dealing with the cognitive abilities of young children, not adults. See, e.g., Scripps Howard Broadcasting Company (KNXV- TV), 12 FCC Rcd 19504, 19505 (MMB 1997), aff'g 9 FCC Rcd 2547 (MMB 1994). The overages occurred, moreover, over a period of more than three years and three 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. The reasons WPGH Licensee, LLC cites for 13 of the violations essentially amount to human error, inadvertence and misunderstanding of the commercial limits, and do not mitigate or excuse those violations. The Commission has repeatedly rejected inadvertence, human error and misunderstanding of the rules as bases for excusing violations of the children's television commercial limits. See, e.g., LeSea Broadcasting Corporation (WHMB-TV), 13 FCC Rcd 2751 (1998); UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10987 (1995); LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959 (1995); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (1995); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994). Further, while WPGH Licensee, LLC asserts that three violations occurred due to errors by program syndicators, this does not absolve WPGH Licensee, LLC of responsibility for that violation, as 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. Nor does WPGH Licensee, LLC'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, station WPGH-TV's violation of Section 73.670 of the Commission's rules on 16 occasions warrants a forfeiture in the above-specified amount of $15,000. This forfeiture amount is consistent with the forfeitures assessed in other cases. For example, in Malrite Communications Group, Inc. (WXIX-TV), 13 FCC Rcd 8000 (MMB 1997) (Malrite), a $15,000 forfeiture was assessed for 16 violations of the children's television commercial limits, consisting of two 30-second overages and 14 program-length commercials, which occurred over a period of four years and six months. The overages in that case were attributed to human error and the inclusion of program-related commercial matter in programs supplied to station WXIX-TV by program distributors and/or the Fox Television Network, and the licensee asserted that it had taken steps after each violation to prevent recurrence. Compared to station WXIX-TV in Malrite, station WWCP-TV reported the same number of total violations, and the same number of program-length commercials and conventional overages, which were of comparable durations. In both cases, the overages occurred over an extended period of at least three years, and the licensees offered virtually the same explanations for their respective violations. Further, each licensee claimed to have established policies and procedures to prevent future violations of the children's television commercial limits. For all of these reasons, we find the violations here, on balance, to be comparable to those in Malrite. Therefore, we conclude that an appropriate, comparable forfeiture is in the amount of $15,000. 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 WPGH Licensee, LLC, for station WPGH-TV, Pittsburgh, Pennsylvania, File No. BRCT-990401KQ, 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 surrendereither its analog or its digital television channel for reallocation or reassignment pursuant to Cmmission 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: David K. McGraw, Esq.