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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Liability of ) ) ACT III BROADCASTING LICENSE CORP. ) ) Licensee of Television Station ) WUTV(TV), Buffalo, New York ) ) for a Forfeiture ) MEMORANDUM OPINION AND ORDER Adopted: December 2, 1997 Released: December 4, 1997 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief, Mass Media Bureau, acting pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. 503(b), under authority delegated by Section 0.283 of the Commission's Rules, 47 C.F.R. 0.283, has before it for consideration (i) a Notice of Apparent Liability ("NAL") in the amount of ten thousand dollars ($10,000) issued against Act III Broadcasting License Corporation ("Act III"), licensee of station WUTV(TV), Buffalo, NY; and (ii) Act III's Petition for Reconsideration/Request for Reduction/Remission of that Notice of Apparent Liability filed on May 30, 1995. The forfeiture was assessed for apparent repeated violations of Section 73.670 of the Commission's Rules, 47 C.F.R. 73.670, which limits the amount of commercial matter that may be aired during children's programming. 2. In the Children's Television Act of 1990, Congress directed the Commission to adopt rules, inter alia, limiting the number of minutes 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. Pursuant to this statutory mandate, 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). 3. On February 1, 1994, Act III filed an application for renewal of license for WUTV(TV), File No. BRCT-940201LI. In response to Question 9(b) of that application, Act III stated that WUTV(TV) had not complied with the limits on commercial matter in children's programming. In accordance with Question 9(c), Act III submitted Exhibit 3 to its application, listing each segment of children's programming which exceeded the commercial limits. Exhibit 3 revealed that between January 22, 1993, and December 9, 1993, WUTV(TV) exceeded the commercial limits on children's television on 8 occasions. Of these 8 commercial overages, 3 were fifteen seconds in duration; one was thirty seconds in duration; and four were program-length commercials. Act III stated that all of the commercial overages were inadvertent, and/or were "isolated instances of human error"; and that WUTV(TV) "has in place policies designed to assure future compliance." 4. In Act III NAL (WUTV(TV)), supra, the Commission stated that, in enacting the Children's Television Act of 1990, Congress was particularly concerned about program-length commercials because young children often have difficulty distinguishing between commercial matter and programming; that the only reasons for the cited violations proffered by WUTV(TV), inadvertence and/or human error, did not justify or excuse such violations; and that the fact that WUTV(TV) may have implemented a plan to prevent future violations of the children's television commercial limitations did not relieve the licensee of liability for violations which had occurred. The Commission determined that a forfeiture in the amount of $10,000 was appropriate after consideration of the following factors: (1) the number of instances of commercial overages; (2) the length of each overage; (3) the period of time over which the overages occurred; (4) whether or not the licensee established an effective program to ensure compliance; and (5) the specific reasons that the licensee gave for the overages. Act III NAL (WUTV(TV)), supra 10 FCC Rcd at 4957. 5. In its Petition for Reconsideration/Request for Reduction/Remission ("Petition/Request") of Act III NAL (WUTV(TV)), supra, Act III argues with regard to the program-length commercial violations that the commercial matter related to the programs in question was inserted by the advertiser or program producer, and not by the station; that the programs were transmitted to the station by satellite; and that WUTV(TV) "had no opportunity to review and delete the material in question prior to broadcast." However, broadcasts of children's television program-length commercials are not excused or mitigated by a licensee's assertion that the program-related commercial matter was inserted by the program's producer or distributor without the knowledge, participation or consent of the station. 6. In addition, Act III argues that two of the program-length commercials involved advertisements for a fast-food restaurant which included "a promotional tag advertising a contest in which a trip to Disney World is a prize"; that that "promotional insert" contained "a fleeting image" of a cartoon character related to the program "in the background"; that such occurrences are "almost impossible to avoid"; and that "other licensees have experienced similar difficulties", citing Northstar Television of Erie, Inc. (WSEE-TV), 10 FCC Rcd 3779 (1995). Initially, we note that the Commission has consistently held that where a commercial announcement is primarily for a product otherwise unrelated to a program, but that announcement also includes references to or offers of products which are related to the program, then the broadcast of that commercial announcement during the program to which the included products relate will render that program a program-length commercial. The fact that other licensees may have experienced similar difficulties does not mitigate or excuse the violations by WUTV(TV). Indeed, in WSEE-TV, supra, which Act III cites in support of reduction/remission, the licensee was held accountable for, inter alia, similar difficulties, and was assessed a forfeiture of $100,000. 7. Further, the determination as to whether a particular program is a program-length commercial is not dependent on the duration of the appearance of the program-related product in the commercial announcement. Where a commercial announcement includes a product related to the program in which the commercial is broadcast, then the program is a program-length commercial regardless of the duration of the appearance of the program-related product in the commercial. Accordingly, Act III NAL (WUTV(TV)), supra, correctly treats the programs in question as program-length commercial violations. 8. Act III also argues that one 30-second overage and three 15-second overages did not merit a $10,000 forfeiture because "[u]nder Commission case precedent they would be considered de minimis"; and that, therefore, the Commission must have "place[d] undue weight" on the four program-length commercials. Even assuming, arguendo, that these overages standing alone would not have warranted a forfeiture, in determining whether a forfeiture is appropriate and, if so, the amount of that forfeiture, the Commission does not consider each violation in isolation, or consider program-length commercials separately from violations of shorter duration. As stated above (and in Act III NAL (WUTV(TV)), supra), the Commission considered, inter alia, the total number of overages and the length of each overage. The forfeiture assessed in Act III NAL (WUTV(TV)), supra, is consistent with forfeitures imposed in similar cases. For instance, in Gannett Massachusetts Broadcasting, Inc. (WLVI-TV), 9 FCC Rcd 1555 (1994), a forfeiture of $10,000 was assessed for a total of seven overages, three of which were 60, 30 and 28 seconds in duration, respectively, and four of which were program-length commercials; in Quad Cities Television (KLJB-TV), 9 FCC Rcd 1711 (1994), a forfeiture of $10,000 was assessed for a total of three overages, all which were program-length commercials; and in Sainte Limited (KCVU-TV), Chief MMB NAL 1800E dated November 25, 1994, a forfeiture of $10,000 was assessed for a total of six overages, all which were program-length commercials. 9. Act III also argues that cases cited in Act III NAL (WUTV(TV)), supra, (i.e., Koplar Communications, 8 FCC Rcd 7884 (1993); Independent Communications, Inc., 8 FCC Rcd 7886 (1993); KXRM Partnership, 8 FCC Rcd 7890 (1993); Clear Channel Television, Inc. (KTTU(TV)), 10 FCC Rcd 3773 (1995); and WSEE-TV, supra) do not support a forfeiture of $10,000. Those cases, all of which involved substantially higher forfeitures and a significantly greater number of overages, were not cited in support of the forfeiture amount in Act III NAL (WUTV(TV)), supra. Rather, those cases were cited as precedent for the criteria applied to determine the amount of the forfeiture. See, Act III NAL (WUTV(TV)), supra 10 FCC Rcd at 4957 & note 1. As discussed in paragraph 8, supra, the forfeiture amount assessed in Act III NAL (WUTV(TV)), supra, is consistent with forfeitures imposed in similar cases. Accordingly, Act III's arguments concerning the amount of the forfeiture do not justify or necessitate reduction or remission of the assessed forfeiture amount. 10. Finally, Act III states that the U.S. Court of Appeals for the District of Columbia had set aside Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993)("Policy Statement/Assessing Forfeitures"), which the Commission had previously used as a guideline for assessing forfeitures; that the Commission had issued a Notice of Proposed Rulemaking proposing identical forfeiture guidelines; and that assessment of a forfeiture of $10,000 in the instant case "amounts to a prejudgment by the Commission of the outcome of" that pending rulemaking proceeding. 11. In United States Telephone Ass'n. v. FCC, 28 F3rd 1232 (D.C. Cir. 1994), the U.S. Court of Appeals for the District of Columbia set aside Policy Statement/Assessing Forfeitures, supra, stating that the guidelines for assessing forfeitures established therein must be subject to public comment to comply with the Administrative Procedure Act. In accordance with the court's decision, the Commission released Forfeiture Guidelines - Notice of Proposed Rulemaking in CI Docket No. 95-6, 10 FCC Rcd 2945 (1995). After receiving and considering comments from the public in that proceeding, the Commission adopted guidelines for assessing forfeitures. Forfeiture Guidelines - Report and Order in CI Docket No. 95-6, FCC Rcd (FCC 97-218, adopted June 19, 1997, released July 28, 1997)("Forfeiture Guidelines"). Forfeiture Guidelines, id., became effective on October 14, 1997. 62 Fed. Reg. 43474 (August 14, 1997). However, with regard to (i) all cases pending when Forfeiture Guidelines, supra, was adopted, and (ii) all cases involving "violations arising from facts that occurred before the effective date of th[at] order", forfeiture amounts are to be assessed "under the case-by-case approach in effect when the violation occurred", in conformity with the standards set out in Section 503 of the Communications Act. Id. at 49. 12. Act III NAL (WUTV(TV)), supra, specifically recognized that Policy Statement/Assessing Forfeitures, supra, had been set aside by the court of appeals, and that the forfeiture guidelines would "be subject to public comment...in a separate proceeding." Act III NAL (WUTV(TV)), supra 10 FCC Rcd at 4957 note 1. Act III NAL (WUTV(TV)) further stated that, in the interim, the criteria applied in the instant case (i.e., "(1) the number of instances of commercial overages; (2) the length 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") which were developed and applied by the Commission in previous cases, "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." Act III NAL (WUTV(TV)), supra 10 FCC Rcd at 4957 note 1. Inasmuch as the forfeiture amount in the instant case was determined in accordance with the criteria developed and applied by the Commission in previous cases, in conformity with the standards established in Section 503 of the Communications Act (as specified in Forfeiture Guidelines, id. at 49), Act III is incorrect in asserting that application of the criteria in the instant case was inappropriate or improper. 13. For all these reasons, the arguments contained in the Petition for Reconsideration/Request for Reduction/Remission of the forfeiture of $10,000 assessed in Act III Broadcasting License Corporation (WUTV(TV)), 10 FCC Rcd 4957 (1995), do not warrant reduction or remission of the assessed forfeiture. Accordingly, IT IS ORDERED THAT the Petition for Reconsideration/ Request for Reduction/Remission IS DENIED. IT IS FURTHER ORDERED THAT, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. 503(b), Act III Broadcasting License Corporation FORFEIT to the United States the sum of ten thousand dollars ($10,000) for repeated violations of Section 73.670 of the Commission's Rules, 47 C.F.R. 73.670. Payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission. With regard to this forfeiture proceeding, Act III Broadcasting License Corporation may take any of the actions set forth in Section 1.80 of the Commission's Rules, 47 C.F.R. 1.80, as summarized in the attachment to this Memorandum Opinion and Order. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Attachments kwutvrd5.rel $// ACT III BCSTNG LICNS CORP, WUTV(TV) (BUFLO,NY) DA 97-2534 //$ $/ 300.503(b) FORFEITURES (FORFEITURE ORDER) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$