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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 ) ) MAX TELEVISION OF SYRACUSE, L.P. ) Licensee of Television Station ) WSYT(TV), Syracuse, New York ) ) for a Forfeiture) MEMORANDUM OPINION AND ORDER Adopted: December 15, 1997 Released: December 19, 1997 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief, Mass Media Bureau, acting pursuant to 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 twenty thousand dollars ($20,000) issued against Max Television of Syracuse, L.P. (Max"), licensee of television station WSYT(TV), Syracuse, NY; and (ii) Max's Response to that NAL, filed on September 12, 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 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). 3. On January 31, 1994, Max filed an application for renewal of license for WSYT(TV), File No. BRCT-940131LJ. In response to Question 9(b) of that application, Act III stated that WSYT(TV) had not complied with the limits on commercial matter in children's programming. In accordance with Question 9(c), Max submitted Exhibit 3 to its application, listing each segment of children's programming which exceeded the commercial limits. Exhibit 3 revealed that between February 1 and February 16, 1993, WSYT(TV) exceeded the commercial limits on children's programming on 11 occasions. Of these 11 commercial overages, six were 30 seconds in length; two were one minute in length; two were 90 seconds in length; and one was two minutes in length. Max stated that all of these commercial overages occurred during the same clock hour on different days because of "a single mistake" in allocating commercial time in barter programming; that they all resulted from inadvertence and/or human error; and that the station instituted procedures to prevent recurrence. In addition, Max stated that in March, 1992, the station broadcast a commercial announcement for "Sunkist Tiny Toons Fruit Chews" during the program "Tiny Toons", and in June, 1992, the station broadcast a commercial announcement for "Teenage Mutant Ninja Turtles" toy figures during the program "Teenage Mutant Ninja Turtles"; and that, as a result of these two incidents, the station instituted a pre- screening procedure for all commercial announcements for children's programs. However, Max further stated that, despite the pre-screening procedure, a commercial announcement for "Kellogg's Honey Smacks cereal" featuring "Tale Spin" characters was broadcast during the program "Tale Spin" on one occasion in August, 1992; and a commercial announcement for "Teenage Mutant Ninja Turtles" toy figures was broadcast during the program "Teenage Mutant Ninja Turtles" on 14 occasions between February 1 and March 1, 1993. Again, Max asserted that these incidents occurred because of human error, and that "additional measures" were taken to prevent recurrence. Finally, on April 26, 1994, Max filed an amendment to WSYT(TV)'s renewal application in which Max stated that on March 19, 1994, during the program "Tazmania", the station broadcast a commercial announcement for "Kellogg's Raisin Bran" cereal which included an appearance by the program's "Taz" character; that there was no indication of the character's appearance in the title of the announcement; that the station could not preview the spot before it aired because the network feed of the program is "live"; and that the station had no opportunity to delete the ad when it appeared because of the short duration of the "Taz" character's appearance. 4. In Max NAL (WSYT(TV)), supra, the Commission stated that the total of 29 commercial overages was a high number of violations; and that 18 of the overages were program-length commercials, about which Congress was particularly concerned because young children often have difficulty distinguishing between commercial matter and programming. Max NAL (WSYT(TV)), supra, further stated that when the Commission delayed the effective date of Section 73.670 of the Rules until January 1, 1992, we 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... [and], in the context of any enforcement action for violations of the limits, we would be unlikely to be sympathetic to claims of transitional difficulties." Children's Television Programming, supra 6 FCC Rcd at 5530 n.10. Max NAL (WSYT(TV)), supra 10 FCC Rcd at 8907. In this regard, the Commission stated that Max had not "proffered any extraordinary transitional or other difficulties that would have prevented Station WSYT(TV) from complying with the children's television commercial limitations", but instead attributed the overages solely to "human error and/or inadvertence." Id. Accordingly, the Commission concluded that WSYT(TV) initially did not establish an effective program to monitor compliance with the children's television commercial limitations; and that although the station instituted an additional pre-screening procedure after the second program-length commercial violation in June, 1992, further program-length commercial violations occurred thereafter as a result of what Max described as "breakdown[s] in the station's procedures". Finally, the Commission stated that fact that WSYT(TV) may have implemented procedures to prevent future commercial overages did not relieve the station of liability for prior violations. In view of the foregoing, the Commission determined that a forfeiture in the amount of $20,000 was appropriate. Id. 5. In its response to the NAL, Max states that the commercial overages were not "willful" violations within the meaning of Section 312(f)(1) of the Communications Act of 1934, as amended, 47 U.S.C. 312(f)(1). Sections 312(f)(1) and 503(b) of the Communications Act provide that the actions specified in those sections may be taken for willful or repeated violations of the Act or the Commission's rules. See, Southern California Broadcasting Company (KIEV(AM), 6 FCC Rcd 4387, 4388 (1991); MCI Telecommunications Corporation, 3 FCC Rcd 509, 515 n. 22. The opening paragraph of Max NAL (WSYT(TV)), supra, acknowledged that the Notice of Apparent Liability was "for repeated violations" (emphasis added) of the commercial limits. 6. Max also states that shortly after the Commission adopted the children's television commercial limits WSYT(TV) designed and implemented a program for compliance; that as a result of that program there were only three "isolated accidental" overages from January 1, 1992, when the limits went into effect, until February, 1993; that these three program-length commercial violations occurred because of "commercials that arrived from an advertising agency without proper coding indicating that they had a program tie-in"; that after the first two violations in March and June of 1992, the station instituted an additional "pre-screening requirement for all commercials intended for broadcast during children's programming"; and that the third of these early program-length commercial violations occurred shortly after the institution of the additional "pre-screening requirement". With regard to that third early violation, the "Tale Spin" program which contained a commercial announcement for "Kellogg's Honey Smacks cereal" featuring "Tale Spin" characters, Max states that the Commission defines a program-length commercial as "a program associated with a product in which commercials for that product are aired"; that, although the commercial in question included "an additional tag at the end...for...[program] characters in the cereal box", the commercial was actually for a breakfast cereal and not for a product associated with the program; and that, therefore, "the commercial does not on its face meet the FCC's definition." In addition, Max states that 25 of the overages occurred in February, 1993; that these 25 overages resulted from "two instances of human error"; that 11 of these violations, conventional overages of between 30 and 90 seconds, occurred because "the station's traffic department failed to program into the station's computer system a change in the split between barter commercials included with syndicated programming...and the number of commercials allocated to the station"; that when this error was discovered "immediate action was taken to avoid further overages"; that the other 14 violations between February 1 and March 1, 1993, program-length commercials, occurred because of a "breakdown" in the station's pre-screening procedure; that when these violations were discovered on March 1, the station's program director "took immediate action" to prevent further occurrences; and that thereafter there was only one additional violation of the commercial limitations. 7. Initially, we note that 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. Accordingly, Max's assertion that the commercial matter related to the programs in question was not identified as such by the advertising agency does not justify a reduction. Further, the Commission has consistently held that where a commercial announcement is primarily for a product otherwise unrelated to a program (e.g., a breakfast cereal), but that announcement also includes references to or offers of products which are related to the program (e.g., program character figures), then the broadcast of that commercial announcement during the program to which the included products relate will render that program a program-length commercial. Accordingly, Max's argument that the "Tale Spin" program which contained a commercial announcement for a breakfast cereal featuring "Tale Spin" characters "does not on its face meet the FCC's definition" of program-length commercial is without merit. Max NAL (WSYT(TV)), supra, correctly treats the program in question as program-length commercial violations. 8. Max also asserts that 25 of the violations occurred during a one-month period, in February, 1993; that they occurred as a result of two instances of human error; and that it's program for compliance was "effective" because, when these instances of human error were discovered, "immediate action" was taken to prevent further violations, and because only one further violation occurred throughout the remainder of the license term. However, the Commission has repeatedly rejected inadvertence and/or human error as an excuse for violations of the children's television commercial limits. Further, although Max asserts that it took "immediate action" when it did discover the violations, one of the violations was not discovered until it was repeated 11 times over a period of 17 days, and the other was not discovered until it was repeated 14 times over a period of 29 days. A truly effective program for compliance would have discovered these violations before 11 and 14 repetitions, respectively. Finally, even if WSYT(TV) had established an effective program for compliance with the children's television commercial limits subsequent to February, 1993, the Commission has repeatedly held that the fact that a licensee may have instituted a plan to eliminate future overages does not relieve that licensee of liability for prior violations. Accordingly, Max's assertions that it had an effective program for compliance with the children's television commercial limits, and that all of its commercial overages occurred because of inadvertence and/or human error, do not justify a reduction. 9. In addition, Max argues that the $20,000 forfeiture assessed in the instant case is inconsistent with forfeitures assessed against other stations for violations of the children's television commercial limits. Max cites Le Sea Broadcasting Corporation (KWHE(TV)), 8 FCC Rcd 336 (1993), and Ponce-Nicasio Broadcasting (KCMY(TV)), 10 FCC Rcd 6728 (1995), wherein those licensees were assessed forfeiture of $20,000 for the broadcast of 27 program- length commercials; and argues that, although it was assessed the same $20,000 forfeiture amount, the violations in those cases were more egregious because those licensees did not have programs for compliance. Max also cites Tampa Bay Television, Inc. (WFTS-TV), 8 FCC Rcd 411 (1993), where a forfeiture of $10,000 was assessed for an unstated number of program- length commercials between January 16 and March 5, 1992; that the three-week period during which those overages occurred was "close in duration" to the four week period during which "most" of WSYT-TV's violations occurred; and that there was "no apparent reason" why WSYT-TV should be assessed a forfeiture of $20,000 while WFTS-TV was assessed a forfeiture of only $10,000. Max further cites R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715 (1994), where the licensee, which had no program for compliance with the commercial limits, was assessed the same forfeiture amount of $20,000 for more than twice the number of commercial overages (80) over a 14 month period. 10. The Commission has a great deal of discretion under Section 503 of the Communications Act in determining forfeiture amounts. Triple X Broadcasting Co., Inc., 46 RR2d 788, 789 (B/C Bur. 1979), citing Brennan Broadcasting Co., 25 FCC 2d 400 (1970); KIEV(AM), supra 6 FCC Rcd at 4388. In view of the different factors involved in compliance with the children's television commercial limits (e.g., number, type and duration of overages, period of time over which the violations occurred, extent of compliance program, etc.), it is not possible to devise a precise formula to calculate forfeiture amounts. However, the forfeiture assessed in Max NAL (WSYT(TV), supra, is generally consistent with forfeitures imposed in roughly similar cases, when the different circumstances are considered. In two of the cases cited by Max (KWHE(TV), supra, and KCMY(TV), supra), the licensees received the same $20,000 forfeiture assessments as WSYT(TV). KWHE(TV) and KCMY(TV) had fewer total overages than WSYT(TV)(27 each as compared to 29), but more program-length commercials (27 each as compared to 18). The violations at KWHE(TV) and KCMY(TV) occurred over a period of approximately 6 months; although WSYT(TV) asserts that "most" of its violations occurred over a one month period, there were other violations by WSYT(TV) both before and after that one- month period. KWHE(TV) and KCMY(TV) repeated one violation 27 times; WSYT(TV) committed several different violations, including one repeated 11 times and one repeated 14 times. Although Max argues that it had an "effective" program for compliance while KWHE(TV) and KCMY(TV) did not, WSYT(TV)'s program was sufficiently deficient that (i) two of its "human errors" resulted in violations that were repeated 11 and 14 times, respectively, before they were discovered and corrected; and (ii) additional "human errors" resulted in additional violations. With regard to WTWS(TV), supra, although there were 80 total commercial overages, there were no program-length commercials. The Commission has routinely assessed a higher forfeitures for program-length commercials than for a significantly greater number of conventional overages. On balancing the various different factors in the cases cited by Max, similar forfeiture amounts of $20,000 are appropriate, and clearly within the discretion afforded the Commission in assessing forfeitures. Further, we do not agree that a reduction is appropriate based on Max's overall history of compliance with other Commission rules. 11. Accordingly, IT IS ORDERED THAT the Response to Max NAL (WSYT(TV)), supra, filed by Max Television of Syracuse, L.P., 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), Max Television of Syracuse, L.P., licensee of Television Station WSYT(TV), Syracuse, New York, FORFEIT to the United States the sum of twenty thousand dollars ($20,000) 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, Max Television of Syracuse, L.P., 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 kwsytrd2.rel $// MAX TV OF SYRACUSE, L.P., WSYT(TV) (SYRACUSE ,NY) DA 97-2613 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$