******************************************************** 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 Facility I.D. # 51568 In reply refer to: 1800E1-LG September 8, 1999 Released: September 9, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Fox Televison Stations of Philadelphia, Inc. Licensee, Station WTXF-TV c/o Molly Pauker, Esq. 5151 Wisconsin Avenue, NW Washington, DC 20016 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). 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 WTXF-TV, Philadelphia, Pennsylvania (File No. BRCT-990401KZ). In response to Section III, Question 5 of that application, you certify that, during the previous license term, station WTXF-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 the renewal application, you indicate that in December of 1998, station WTXF-TV violated the children's television commercial limits on three occasions, all program-length commercials. You attribute the violations to human error on the part of station WTXF-TV's former Acting Traffic Manager, and describe the measures taken by the new Traffic Manager to improve the station's compliance system to ensure against the occurrence of any similar violations. Station WTXF-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on three occasions constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Fox Televison Stations of Philadelphia, Inc. (Fox) is hereby advised of its apparent liability for forfeiture in the amount of seven thousand, five hundred dollars ($7,500) 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 WTXF-TV exceeded the children's television commercial limits on three occasions, all 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. In this vein, 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, 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 only reason cited for the violations, 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). Furthermore, while corrective actions may have been taken to prevent subsequent violations of the children's television rules and policies, this does not relieve Fox of liability for the violations which have occurred. See, e.g., WHP Television, L.P., 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., 8 FCC Rcd 5077, 5078 (MMB 1993); International Broadcasting Corp., 19 FCC 2d 793, 794 (1969). Given all of these considerations, station WTXF-TV's violation of Section 73.670 of the Commission's Rules on three occasions, all of which were program-length commercials, warrants a forfeiture in the above-specified amount of $7,500. This forfeiture amount is consistent with the forfeitures assessed in other, similar cases. For example, in Second Generation of Iowa, Ltd. (KFXA(TV)), 13 FCC Rcd 3055 (MMB 1998) (Second Generation) and Dubuque TV Limited Partnership (KFXB(TV)), 13 FCC Rcd 3059 (MMB 1998) (Dubuque TV), we 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 the stations in Second Generation and Dubuque TV, station WTXF-TV also reported three program-length commercials which occurred over a short period of time. In addition, the licensees in all three cases offered explanations for their respective overages which were rejected by the Commission, and claimed to have implemented corrective measures to prevent future violations of the commercial limits. For these reasons, we find the violations in the instant case, on balance, comparable to those in Second Generation and Dubuque TV. Therefore, we conclude that an appropriate, comparable forfeiture for station WTXF-TV's violatons of the children's television commercial limits is in the amount of $7,500. 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 Fox Televison Stations of Philadelphia, Inc., for station WTXF-TV, Philadelphia, Pennsylvania, File No. BRCT-990401KZ, 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