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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:fx6X@`7X@?xxx,-x `7Xv~)[80,:{[2PG;Pu'^80,@S^2pPG;x1mC9,: Xm2PG;XP w/qC:,@cdXq2pPG;XyW!@(#,9h@\  P6G;hPH5!,,5\  P6G;,P2@ KR<Z% K>"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&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@?xxx,-x `7Xv~)[80,:{[2PG;Pu'^80,@S^2pPG;x1mC9,: Xm2PG;XP w/qC:,@cdXq2pPG;XyW!@(#,9h@\  P6G;hPzH5!,,5\  P6G;,P\5hC:,KXh*f9 xr G;XX\*.EXEEXE COM BAT PIFGroupsOrderProgmanPROGEXEWindowsAutoArrangeSaveSettingsMinOnRunSettingsNoRunNoCloseEditLevel X   N X-w  Federal Communications Commission`)(#5DA 972534 ă  yxdddy   X-v3#X\  P6G;IP# Before the Federal Communications Commission  yO} Washington, D.C. 20554 #Xj\  P6G; XP#у  X4-In the Matter of hh@h) x` `  hh@h)  X-Liability of` `  hh@h) x` `  hh@h)  X-ACT III BROADCASTING LICENSE CORP.h) x` `  hh@h)  X -Licensee of Television Stationhh@h)  X -WUTV(TV), Buffalo, New Yorkhh@h) x` `  hh@h)  Xe -for a Forfeiture hh@h)  X -  MEMORANDUM OPINION AND ORDER TP  X-X` hp x (#%'0*,.8135@8:the extent to which the licensee has complied with such commercial limits. Pursuant to this  x statutory mandate, the Commission adopted Section 73.670 of the Rules, 47 C.F.R. 73.670,  x}which limits the amount of commercial matter which may be aired during children's  xprogramming to 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays. The  xCommission also reaffirmed and clarified its longstanding policy against "programlength  xKcommercials". The Commission defined a "programlength commercial" as "a program associated  xwith a product, in which commercials for that product are aired", and stated that the entire  xduration of any programlength commercial would be counted as commercial matter for the  X - xzpurpose of the children's television commercial limits. Children's Television Programming, 6  X - xFCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). The commercial  X - xlimits became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991).   Cx3. On February 1, 1994, Act III filed an application for renewal of license for  xMWUTV(TV), File No. BRCT940201LI. In response to Question 9(b) of that application, Act  xIII stated that WUTV(TV) had not complied with the limits on commercial matter in children's  xprogramming. In accordance with Question 9(c), Act III submitted Exhibit 3 to its application,  xlisting each segment of children's programming which exceeded the commercial limits. Exhibit  x3 revealed that between January 22, 1993, and December 9, 1993, WUTV(TV) exceeded the  xcommercial limits on children's television on 8 occasions. Of these 8 commercial overages, 3  xwere fifteen seconds in duration; one was thirty seconds in duration; and four were program xjlength commercials. Act III stated that all of the commercial overages were inadvertent, and/or  x[were "isolated instances of human error"; and that WUTV(TV) "has in place policies designed to assure future compliance."  X|-  x4. In Act III NAL (WUTV(TV)), supra, the Commission stated that, in enacting the  x.Children's Television Act of 1990, Congress was particularly concerned about programlength  xcommercials because young children often have difficulty distinguishing between commercial  xmatter and programming; that the only reasons for the cited violations proffered by WUTV(TV),  xinadvertence and/or human error, did not justify or excuse such violations; and that the fact that  xWUTV(TV) may have implemented a plan to prevent future violations of the children's television  xycommercial limitations did not relieve the licensee of liability for violations which had occurred.  xMThe Commission determined that a forfeiture in the amount of $10,000 was appropriate after  xLconsideration of the following factors: (1) the number of instances of commercial overages; (2)  xthe length of each overage; (3) the period of time over which the overages occurred; (4) whether  x.or not the licensee established an effective program to ensure compliance; and (5) the specific  X#- x.reasons that the licensee gave for the overages. Act III NAL (WUTV(TV)), supra 10 FCC Rcd at 4957."h$X,-(-(ZZF#"Ԍ  ԙx5. In its Petition for Reconsideration/Request for Reduction/Remission  X- x("Petition/Request") of Act III NAL (WUTV(TV)), supra, Act III argues with regard to the  x/programlength commercial violations that the commercial matter related to the programs in  xquestion was inserted by the advertiser or program producer, and not by the station; that the  xprograms were transmitted to the station by satellite; and that WUTV(TV) "had no opportunity  xto review and delete the material in question prior to broadcast." However, broadcasts of  xchildren's television programlength commercials are not excused or mitigated by a licensee's  xassertion that the programrelated commercial matter was inserted by the program's producer or  XH-distributor without the knowledge, participation or consent of the station.XHD yO - x>ԍ See, e.g., Max Television of Syracuse, L.P. (WSYT(TV)), 10 FCC Rcd 8905 (1995); Mt. Mansfield  yO - xTelevision, Inc. (WCAXTV), 10 FCC Rcd 8797 (1995); Boston Celtics Broadcasting Limited Partnership  yOQ -(WFXT(TV)), 10 FCC Rcd 6686 (1995); Le Sea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995).    x6. In addition, Act III argues that two of the programlength commercials involved  xZadvertisements for a fastfood restaurant which included "a promotional tag advertising a contest  xLin which a trip to Disney World is a prize"; that that "promotional insert" contained "a fleeting  ximage" of a cartoon character related to the program "in the background"; that such occurrences  xare "almost impossible to avoid"; and that "other licensees have experienced similar difficulties",  X - xciting Northstar Television of Erie, Inc. (WSEETV), 10 FCC Rcd 3779 (1995). Initially, we  xnote that the Commission has consistently held that where a commercial announcement is  x=primarily for a product otherwise unrelated to a program, but that announcement also includes  Xb- xLreferences to or offers of products which are related to the program, then the broadcast of that  xcommercial announcement during the program to which the included products relate will render  X4- xthat program a programlength commercial.X4D yO- xԍ See, e.g., WSYT(TV), supra 10 FCC Rcd at 8905 (1995); Scripps Howard Broadcasting Co. (KNXVTV),  yO- x9 FCC Rcd 2547 (1994); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994); Quad Cities Television  yO]-(KLJBTV), 9 FCC Rcd 1711 (1994).  The fact that other licensees may have experienced  X- xsimilar difficulties does not mitigate or excuse the violations by WUTV(TV)._D yO-ԍ See all cases cited in footnote 3, supra._ Indeed, in WSEE X- xTV, supra, which Act III cites in support of reduction/remission, the licensee was held  X-accountable for, inter alia, similar difficulties, and was assessed a forfeiture of $100,000.   x7. Further, the determination as to whether a particular program is a programlength  x[commercial is not dependent on the duration of the appearance of the programrelated product  xin the commercial announcement. Where a commercial announcement includes a product related  xto the program in which the commercial is broadcast, then the program is a programlength  xcommercial regardless of the duration of the appearance of the programrelated product in the  XN- xcommercial.uND yO%-ԍ UTV of San Francisco, Inc. (KBHKTV), 10 FCC Rcd 10986, 10988 (1995).u Accordingly, Act III NAL (WUTV(TV)), supra, correctly treats the programs in question as programlength commercial violations."7( ,-(-(ZZ"Ԍ  {ԙx8. Act III also argues that one 30second overage and three 15second overages did not  x<merit a $10,000 forfeiture because "[u]nder Commission case precedent they would be considered  X- xde minimis"; and that, therefore, the Commission must have "place[d] undue weight" on the four  xprogramlength commercials. Even assuming, arguendo, that these overages standing alone would  xnot have warranted a forfeiture, in determining whether a forfeiture is appropriate and, if so, the  xamount of that forfeiture, the Commission does not consider each violation in isolation, or  xconsider programlength commercials separately from violations of shorter duration. As stated  X_- xabove (and in Act III NAL (WUTV(TV)), supra), the Commission considered, inter alia, the total  XH- xnumber of overages and the length of each overage. The forfeiture assessed in Act III NAL  X1- xz(WUTV(TV)), supra, is consistent with forfeitures imposed in similar cases. For instance, in  X - xGannett Massachusetts Broadcasting, Inc. (WLVITV), 9 FCC Rcd 1555 (1994), a forfeiture of  x=$10,000 was assessed for a total of seven overages, three of which were 60, 30 and 28 seconds  X - xin duration, respectively, and four of which were programlength commercials; in Quad Cities  X - xTelevision (KLJBTV), 9 FCC Rcd 1711 (1994), a forfeiture of $10,000 was assessed for a total  X - xof three overages, all which were programlength commercials; and in Sainte Limited (KCVU X - x\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 programlength commercials.  Xb-  x9. Act III also argues that cases cited in Act III NAL (WUTV(TV)), supra, (i.e., Koplar  XK- xCommunications, 8 FCC Rcd 7884 (1993); Independent Communications, Inc., 8 FCC Rcd 7886  X4- xA(1993); KXRM Partnership, 8 FCC Rcd 7890 (1993); Clear Channel Television, Inc.  X- x(KTTU(TV)), 10 FCC Rcd 3773 (1995); and WSEETV, supra) do not support a forfeiture of  xL$10,000. Those cases, all of which involved substantially higher forfeitures and a significantly  X- xgreater number of overages, were not cited in support of the forfeiture amount in Act III NAL  X- xk(WUTV(TV)), supra. Rather, those cases were cited as precedent for the criteria applied to  X- xdetermine the amount of the forfeiture. See, Act III NAL (WUTV(TV)), supra 10 FCC Rcd at  X- x4957 & note 1. As discussed in paragraph 8, supra, the forfeiture amount assessed in Act III  X- xyNAL (WUTV(TV)), supra, is consistent with forfeitures imposed in similar cases. Accordingly,  xxAct III's arguments concerning the amount of the forfeiture do not justify or necessitate reduction or remission of the assessed forfeiture amount.   ]x10. Finally, Act III states that the U.S. Court of Appeals for the District of Columbia had  X$- x[set aside Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon.  X - xdenied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993)("Policy Statement/Assessing  X- xZForfeitures"), which the Commission had previously used as a guideline for assessing forfeitures;  xthat the Commission had issued a Notice of Proposed Rulemaking proposing identical forfeiture  x guidelines; and that assessment of a forfeiture of $10,000 in the instant case "amounts to a prejudgment by the Commission of the outcome of" that pending rulemaking proceeding.  X#-  x11. In United States Telephone Ass'n. v. FCC, 28 F3rd 1232 (D.C. Cir. 1994), the U.S.  Xl$- xCourt of Appeals for the District of Columbia set aside Policy Statement/Assessing Forfeitures,  XU%- xsupra, stating that the guidelines for assessing forfeitures established therein must be subject to  xpublic comment to comply with the Administrative Procedure Act. In accordance with the  X''- xcourt's decision, the Commission released Forfeiture Guidelines Notice of Proposed Rulemaking"'',-(-(ZZ%"  X- xin CI Docket No. 956, 10 FCC Rcd 2945 (1995). After receiving and considering comments  xfrom the public in that proceeding, the Commission adopted guidelines for assessing forfeitures.  X- xForfeiture Guidelines Report and Order in CI Docket No. 956,   FCC Rcd  (FCC 97218,  X- xadopted June 19, 1997, released July 28, 1997)("Forfeiture Guidelines"). Forfeiture Guidelines,  X- x id., became effective on October 14, 1997. 62 Fed. Reg. 43474 (August 14, 1997). However,  X- xwith regard to (i) all cases pending when Forfeiture Guidelines, supra, was adopted, and (ii) all  xcases involving "violations arising from facts that occurred before the effective date of th[at]  xorder", forfeiture amounts are to be assessed "under the casebycase approach in effect when the  x_violation occurred", in conformity with the standards set out in Section 503 of the  X1-Communications Act. Id. at 49.  X -  Sx12. Act III NAL (WUTV(TV)), supra, specifically recognized that Policy  X - xStatement/Assessing Forfeitures, supra, had been set aside by the court of appeals, and that the  X - xforfeiture guidelines would "be subject to public comment...in a separate proceeding." Act III  X - xNAL (WUTV(TV)), supra 10 FCC Rcd at 4957 note 1. Act III NAL (WUTV(TV)) further stated  X - xthat, in the interim, the criteria applied in the instant case (i.e., "(1) the number of instances of  xcommercial overages; (2) the length of each such overage; (3) the period of time over which such  xoverages occurred; (4) whether or not the licensee established an effective program to ensure  Xb- xjcompliance; and (5) the specific reasons that the licensee gives for the overages")lbD yO-ԍ Act III NAL (WUTV(TV)), supra 10 FCC Rcd at 4957.l which were  XK- xzdeveloped and applied by the Commission in previous cases,AKXD yOT- xԍ See, e.g., Koplar Communications, supra; Independent Communications, Inc., supra; KXRM Partnership, supra;  yO-KTTU(TV), supra; WSEETV, supra.A "are appropriate in analyzing  xviolations of the commercial limits during children's programming, since they take into account,  X- xinter alia, 'the nature, circumstances, extent, and gravity of the violation, and, with respect to the  X- xviolator, the degree of culpability', as required under 503(b)(2)(D) of the Communications Act."  X- xAct III NAL (WUTV(TV)), supra 10 FCC Rcd at 4957 note 1. Inasmuch as the forfeiture  xamount in the instant case was determined in accordance with the criteria developed and applied  xZby the Commission in previous cases, in conformity with the standards established in Section 503  X- xyof 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.   Tx13. For all these reasons, the arguments contained in the Petition for  XN- xyReconsideration/Request for Reduction/Remission of the forfeiture of $10,000 assessed in Act  X7- x\III Broadcasting License Corporation (WUTV(TV)), 10 FCC Rcd 4957 (1995), do not warrant  xMreduction or remission of the assessed forfeiture. Accordingly, IT IS ORDERED THAT the  xPetition for Reconsideration/ Request for Reduction/Remission IS DENIED. IT IS FURTHER  xORDERED THAT, pursuant to Section 503(b) of the Communications Act of 1934, as amended,  x=47 U.S.C. 503(b), Act III Broadcasting License Corporation FORFEIT to the United States the  xOsum of ten thousand dollars ($10,000) for repeated violations of Section 73.670 of the  xCommission's Rules, 47 C.F.R. 73.670. Payment of the forfeiture may be made by mailing to"!,-(-(ZZ "  x|the Commission a check or similar instrument payable to the Federal Communications  x<Commission. With regard to this forfeiture proceeding, Act III Broadcasting License Corporation  xmay 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. x FEDERAL COMMUNICATIONS COMMISSION x Roy J. Stewart x Chief, Mass Media Bureau Attachments ",-(-(ZZ"  X- kwutvr #I d #I 5.rel  X- x  ? <#x6X@`7>fX@# $// ACT III BCSTNG LICNS CORP, WUTV(TV) (BUFLO,NY) DA 972534 //$ $/ 300.503(b) FORFEITURES (FORFEITURE ORDER) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$  ?<