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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""fx6X@`7X@7nC:,Xn4  pG;X7jC:, Xj\  P6G;XP y.X80,IX\  P6G;Py.\80, [\4  pG;!W!@(#,9h@\  P6G;hP"H5!,,5\  P6G;,P?xxx,-x `7X<R&HHH,D,H6X@`7h@?  1.  a3Right  yO5 X< >  #XU4  pQX#Federal Communications Commission #o\  PC XP# #XP\  P6Q XP# Ã`J(#DA 97 617 ă  T yxdddy T  yO-T#C\  P6QIP#    #X\  P6G;IP#vKBefore the y  Federal Communications Commission  yOa Washington, D.C. 20554 #Xj\  P6G; XP#у   X*-In the Matter of hh,V) ` `  hh,V)  X-Liability of LeSea Broadcasting Corporation) ` `  hh,V)  X-Licensee of Television Stationhh,V)  X-KWHE (TV), Honolulu, Hawaiihh,V) ` `  hh,V)  X -For a forfeiture hh,V) ` `  hh,Vpp  xx- X(#(# X[ - &FORFEITURE ORDER  X-- Adopted: March 25, 1997 V Released: March 27, 1997xx-  X-By the Chief, Mass Media Bureau:     1. The Commission, by the Chief of the Mass Media Bureau, acting pursuant to authority   delegated by Section 0.283 of the Commission's Rules, has under consideration (1) a $20,000  X-  Notice of Apparent Liability (NAL)7 yO-#X\  P6G;IP#э LeSea Broadcasting Corp.("LeSea"), 8 FCC Rcd 336 (MMB 1993). issued January 11, 1993, to LeSea Broadcasting Corporation   ("LeSea"), licensee of television station KWHE(TV), Honolulu, Hawaii; and (2) the licensee's February 11, 1993, response to the NAL, asking that the forfeiture be remitted or reduced.    2. The forfeiture was assessed for repeated violations of Section 73.670 of the Commission's   \Rules, 47 C.F.R.  73.670, which sets commercial limits on children's television programming   yof 10.5 minutes per hour on the weekends and 12 minutes per hour on weekdays. As explained   0in the NAL, because the 30 minute children's program "Quigley's Village" used program   characters to promote the sale of programrelated materials, the entire program is considered a  X-  programlength children's commercial.QX7 yO-  #X\  P6G;IP#э A "programlength children's commercial" is defined as "a program associated with a product, in which  yO -commercials for that product are aired." Children's Television Programming, 6 FCC Rcd 2111, 2117 (1991). Q As such, each of the 27 separate broadcasts of   "Quigley's Village," aired over nearly a sixmonth period, substantially exceeded the established   {commercial limits. LeSea does not dispute that the 27 broadcasts constituted "children's programlength commercials."    3. The licensee argues that the forfeiture should be remitted or reduced. It submits that it"a 0*&&00"  x<did not have adequate notice of the proscribed conduct, that it has not been operating at a profit,  xand that payment of the forfeiture would divert resources from an associated organization's plan to provide "relief of hunger worldwide."  x| 4. With respect to the first argument, LeSea asserts that the Commission provided  x"absolutely no notice whatever that the entire 30minute . . . program would constitute  x{commercial matter within the meaning of Section 73.670 of the Rules." We disagree. We  X_- xdefined a programlength commercial in Children's Television Programming, supra note 2. In  x=that same order, we further informed licensees that the entire duration of a program associated  xwith a product in which commercials are aired for that product would be counted as commercial  X - x0time for the purpose of the children's television commercial limits. Children's Television  X - xProgramming, 6 FCC Rcd at 2118. Finally, this information was published in the Federal  X -Register. ލ Oe <XX( #X\  P6G;IP#See 56 FR 19616, April 29, 1991.  x 5. With respect to LeSea's second argument, that the Commission should remit or reduce  xythe forfeiture because of the substantial operating losses incurred by LeSea in the operation of  x.KWHE(TV), we note that LeSea neither has claimed financial inability to pay the forfeiture nor  xxhas provided documentation demonstrating an inability to do so. Thus, LeSea's alleged operating  Xb- x@losses afford no basis for us to reduce the forfeiture. See Section 503(b)(2)(D) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b)(2)(D) (the Act).  x 6. LeSea asserts a third argument, that payment of the forfeiture would divert resources from  x\an associated organization's charitable goals. However, the potential merits of innumerable  x.activities or investments of a related organization that may be adversely affected as a result of  x>the issuance of a forfeiture to a licensee for noncompliance with our rules are immaterial to  xywhether a forfeiture should be issued. Accordingly, the forfeiture's asserted impact on relief of worldwide hunger is not a valid basis upon which to remit or reduce the forfeiture.  x] 7. Finally, while the amount of the forfeiture was in part determined by the guidelines  Xe- xdescribed in our Policy Statement on Standards for Assessing Forfeitures ("Policy Statement"),  XN- x6 FCC Rcd 4659 (1991), recon. denied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215  X7- x(1993), which the court set aside in United States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C.  X - xCir. 1994),X hލ yO9!- x#X\  P6G;IP#э The court indicated that the Policy Statement must be subject to public comment to comply with the  x[Administrative Procedure Act. The Commission has stated that it "will act on the court's order in a separate  yO"-proceeding." Clear Channel Television Inc. KTTU(TV) ("Clear Channel"), 10 FCC Rcd 3773, 3774 (1995). it was also based upon "the factors set forth in Section 503(b)(2) of the [Act] ...."r ލ yO-#X\  P6G;IP#э LeSea, 8 FCC Rcd at 336. r " X0* % %00>"  xThese factors include the nature, circumstances, extent, and gravity of the violation and, with  xrespect to the violator, the degree of culpability, any history of prior offenses, and ability to pay.  xKBecause the forfeiture was based upon these statutory considerations, it was "not inherently tied  X- xto the Policy Statement." See Northstar Television of Erie, Inc., (WSEETV), 10 FCC Rcd 3779  X- x(1995); Clear Channel 10 FCC Rcd at 3774. Consequently, notwithstanding the Policy Statement,  xthe forfeiture was determined on the basis of appropriate criteria for analyzing commercial overages in children's programs.  xN 8. In light of the above, pursuant to Section 503(b) of the Communications Act, IT IS  xzORDERED, that LeSea Broadcasting Corporation, licensee of television station KWHE(TV),  xHonolulu, Hawaii, FORFEIT to the United States the sum of twenty thousand ($20,000) for  xrepeated violations of Section 73.670 of the Commission's Rules. Payment of the forfeiture may  xbe made by mailing to the Commission a check or similar instrument payable to the Federal  xCommunications Commission. In regard to this forfeiture proceeding, the licensee may take any  xof the actions set forth in Section 1.80 of the Commission's Rules, as summarized int he attachment to this Memorandum Opinion and Order.  XK-x` `  hh FEDERAL COMMUNICATIONS COMMISSION x` `  hhRoy J. Stewart x` `  hhChief, Mass Media Bureau