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No. 12499 In reply refer to: 1800E1-LG September 13, 1999 Released: September 15, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Paramount Stations Group of Philadelphia, Inc. Licensee, Station WPSG(TV) c/o Viacom Inc. 1501 M Street, NW, Suite 1100 Washington, DC 20005 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of eleven thousand, five hundred dollars ($11,500) 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). The 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 WPSG(TV), Philadelphia, Pennsylvania (File No. BRCT-990401KU). In response to Section III, Question 5 of that application, you certify that, during the previous license term, station WPSG(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 and a July 20, 1999 amendment to the renewal application, you indicate that between July 16, 1995, and June 28, 1999, station WPSG(TV) violated the children's television commercial limits on ten occasions. Of those ten overages, one was 30 seconds in duration, one was 34 seconds in duration, one was 50 seconds in duration, one was one minute and 30 seconds in duration and six were program-length commercials. You note, however, that the 30-second overage occurred on July 16, 1995, prior to the date on which Viacom International, Inc., a sister entity to Paramount Stations Group of Philadelphia, Inc. (Paramount), acquired the license for station WPSG(TV). The first of the remaining nine violations occurred on November 21, 1995. As for those violations, you attribute the three conventional overages to human error, and, based on your descriptions of them, the six program-length commercials appear to have resulted from human error, inadvertence and a commercial make-good. Finally, you recount station WPSG(TV)'s compliance procedures and the corrective measures taken following each incident in order to prevent future violations of the commercial limits. As a preliminary matter, our records confirm that on August 24, 1995, the Commission granted an application to transfer control of the license for station WPSG(TV) from Anne P. Jones, Trustee, to Viacom (BTCCT-990222KH). That transfer of control transaction was consummated on August 25, 1995. Accordingly, we will not consider the 30-second violation of the children's television commercial limits reported in station WPSG(TV)'s renewal application which occurred prior to Viacom's acquisition of the license for that station. Paramount is clearly responsible, however, for any violations which occurred after August 25, 1995. To this end, we find that station WPSG(TV)'s record of exceeding the commercial limits on children's television programming on nine occasions since August 25, 1995, constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Paramount is hereby advised of its apparent liability for forfeiture in the amount of eleven thousand, five hundred dollars ($11,500) 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 WPSG(TV) reported nine violations of the children's television, including six 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 violations occurred, moreover, over an extended period of approximately three years and seven 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. Although Paramount 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's renewal application. The only reasons Paramount cites for the overages, human error, inadvertence and a commercial make-good, do not mitigate or excuse such violations. In fact, the Commission has repeatedly rejected human error, inadvertence and commercial make-goods as bases for excusing violations of the children's television commercial limits. See, e.g., LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (MMB 1995) (LeSea Broadcasting); 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 Paramount 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 WPSG(TV)'s violation of Section 73.670 of the Commission's Rules on nine occasions, six of which were program-length commercials, warrants a forfeiture in the above-specified amount of $11,500. This forfeiture amount is consistent with the forfeitures assessed in other cases. In Paramount Stations Group of Fort Worth/Dallas, Inc. (KTXA(TV)), 13 FCC Rcd 23480 (MMB 1998) (Paramount of Fort Worth), a $12,500 forfeiture was assessed for 12 violations of the commercial limits which occurred over a period of approximately three years. Of those overages, two were two seconds in duration, two were 15 seconds in duration, one was 20 seconds in duration, two were 30 seconds in duration and five were program-length commercials. According to the licensee in that case, the violations occurred as a result of human error or inadvertence, and, following each incident, measures were implemented to prevent future violations. In another case, Malrite Communications Group, Inc. (WOIO(TV)), 12 FCC Rcd 18052 (MMB 1997) (Malrite), a $10,000 forfeiture was assessed for six violations of the children's television commercial limits, all program-length commercials, which occurred over approximately a one-year period. The licensee in Malrite attributed the violations to human error by station employees or to the inclusion of program-related commercial matter into the programs by the program producers or suppliers, and asserted that station WOIO(TV) took steps to prevent violations in the future. When compared to station KTXA(TV) in Paramount of Fort Worth, station WPSG(TV) reported fewer total overages, but one more program-length commercial. As viewed against station WOIO(TV) in Malrite, station WPSG(TV) reported more total overages, but the same number of program-length commercials. In all three cases, however, the licensees offered similar reasons for their respective violations, and claimed to have taken measures to prevent future violations of the commercial limits. For these reasons, we find station WPSG(TV)'s violations, on balance, comparable to those in Paramount of Fort Worth and Malrite. Therefore, having considered the forfeiture amount assessed in those cases, and in view of the five criteria we use in analyzing violations of the commercial limits, we conclude that an appropriate, comparable forfeiture for station WPSG(TV)'s violations of the children's television commercial limits is in the amount of $11,500. 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 Paramount Stations Group of Philadelphia, Inc., for station WPSG(TV), Philadelphia, Pennsylvania, File No. BRCT-990401KU, 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: E. Joseph Knoll, III, Esq.