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Y2Licensee of Television Stationhh)  Y2WSYT(TV), Syracuse, New Yorkhh) ` `  ,hhh)  Y 2for a Forfeiture ,hhh)  X[ 28}  MEMORANDUM OPINION AND ORDER x  Y-2X` hp x (#%'0*,.8135@8:thereafter as a result of what Max described as "breakdown[s] in the station's procedures".  x.Finally, the Commission stated that fact that WSYT(TV) may have implemented procedures to  xprevent future commercial overages did not relieve the station of liability for prior violations.  X - x.In view of the foregoing, the Commission determined that a forfeiture in the amount of $20,000  X -was appropriate. Id.   x5. In its response to the NAL, Max states that the commercial overages were not "willful"  x{violations within the meaning of Section 312(f)(1) of the Communications Act of 1934, as  xNamended, 47 U.S.C. 312(f)(1). Sections 312(f)(1) and 503(b) of the Communications Act  Xy- xKprovide that the actions specified in those sections may be taken for willful or repeated violations  Xb- xof the Act or the Commission's rules. See, Southern California Broadcasting Company  XK- x(KIEV(AM), 6 FCC Rcd 4387, 4388 (1991); MCI Telecommunications Corporation, 3 FCC Rcd  X4- x509, 515 n. 22. The opening paragraph of Max NAL (WSYT(TV)), supra, acknowledged that  X- xthe Notice of Apparent Liability was "for repeated violations" (emphasis added) of the commercial limits.   x6. Max also states that shortly after the Commission adopted the children's television  xcommercial limits WSYT(TV) designed and implemented a program for compliance; that as a  xresult of that program there were only three "isolated accidental" overages from January 1, 1992,  x|when the limits went into effect, until February, 1993; that these three programlength  xcommercial violations occurred because of "commercials that arrived from an advertising agency  xiwithout proper coding indicating that they had a program tiein"; that after the first two violations  xin March and June of 1992, the station instituted an additional "prescreening requirement for all  xcommercials intended for broadcast during children's programming"; and that the third of these  x-early programlength commercial violations occurred shortly after the institution of the additional  x"prescreening requirement". With regard to that third early violation, the "Tale Spin" program  xwhich contained a commercial announcement for "Kellogg's Honey Smacks cereal" featuring  x"Tale Spin" characters, Max states that the Commission defines a programlength commercial as  x"a program associated with a product in which commercials for that product are aired"; that,  x/although the commercial in question included "an additional tag at the end...for...[program]  xcharacters in the cereal box", the commercial was actually for a breakfast cereal and not for a  x=product associated with the program; and that, therefore, "the commercial does not on its face  xmeet the FCC's definition." In addition, Max states that 25 of the overages occurred in February,  xM1993; that these 25 overages resulted from "two instances of human error"; that 11 of these  xZviolations, conventional overages of between 30 and 90 seconds, occurred because "the station's  xMtraffic department failed to program into the station's computer system a change in the split"#',-(-(ZZ%"  x!between barter commercials included with syndicated programming...and the number of  x-commercials allocated to the station"; that when this error was discovered "immediate action was  xtaken to avoid further overages"; that the other 14 violations between February 1 and March 1,  x>1993, programlength commercials, occurred because of a "breakdown" in the station's pre x>screening procedure; that when these violations were discovered on March 1, the station's  xiprogram director "took immediate action" to prevent further occurrences; and that thereafter there was only one additional violation of the commercial limitations.   ?x7. Initially, we note that broadcasts of children's television programlength commercials  xare not excused or mitigated by a licensee's assertion that the programrelated commercial matter  xwas inserted by the program's producer or distributor without the knowledge, participation or  X - xjconsent of the station.TX D yO| - xԍ See, e.g., Mt. Mansfield Television, Inc. (WCAXTV), 10 FCC Rcd 8797 (1995); Boston Celtics Broadcasting  yOD - xiLimited Partnership (WFXT(TV)), 10 FCC Rcd 6686 (1995); Le Sea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995). T Accordingly, Max's assertion that the commercial matter related to the  xprograms in question was not identified as such by the advertising agency does not justify a  xireduction. Further, the Commission has consistently held that where a commercial announcement  X - x\is primarily for a product otherwise unrelated to a program (e.g., a breakfast cereal), but that  X - xannouncement also includes references to or offers of products which are related to the program  X- x-(e.g., program character figures), then the broadcast of that commercial announcement during the  xlprogram to which the included products relate will render that program a programlength  Xb- xzcommercial.XbD yO- x<ԍ See, e.g., Scripps Howard Bcstng Co. (KNXVTV), 9 FCC Rcd 2547 (1994), remission/reduction denied, __  yO- xYFCC Rcd ___ (Chief, MMB MO&O DA 972419, adopted November 18, 1997, released November 19, 1997); Quad  yO-Cities Television (KLJBTV), 9 FCC Rcd 1711 (1994). Accordingly, Max's argument that the "Tale Spin" program which contained a  x[commercial announcement for a breakfast cereal featuring "Tale Spin" characters "does not on  X4- xits face meet the FCC's definition" of programlength commercial is without merit. Max NAL  X- x>(WSYT(TV)), supra, correctly treats the program in question as programlength commercial violations.   x8. Max also asserts that 25 of the violations occurred during a onemonth period, in  x/February, 1993; that they occurred as a result of two instances of human error; and that it's  xprogram for compliance was "effective" because, when these instances of human error were  x.discovered, "immediate action" was taken to prevent further violations, and because only one  xfurther violation occurred throughout the remainder of the license term. However, the  xCommission has repeatedly rejected inadvertence and/or human error as an excuse for violations  XN- x]of the children's television commercial limits.XND yO$- xԍ See, e.g., KBHKTV, supra 10 FCC Rcd at 10987 & Note 1; WHKE(TV), supra 10 FCC Rcd at 4978; Buffalo  yO$- x,Management Enterprises Corp. (WIVBTV), 10 FCC Rcd 4959, 4960 (1995); Gannett Massachusetts Broadcasting,  yO%-Inc. (WLVITV), 9 FCC Rcd 1555 (1994); KJTV(TV), supra 9 FCC Rcd at 1831. Further, although Max asserts that it took  x"immediate action" when it did discover the violations, one of the violations was not discovered"7( ,-(-(ZZ"  xuntil it was repeated 11 times over a period of 17 days, and the other was not discovered until  x/it was repeated 14 times over a period of 29 days. A truly effective program for compliance  xwould have discovered these violations before 11 and 14 repetitions, respectively. Finally, even  xif WSYT(TV) had established an effective program for compliance with the children's television  x<commercial limits subsequent to February, 1993, the Commission has repeatedly held that the fact  x>that a licensee may have instituted a plan to eliminate future overages does not relieve that  Xv- x=licensee of liability for prior violations.vD yO- xԍ International Broadcasting Corp., 19 FCC 2d 793, 794 (1969). See also, e.g., KBHKTV, supra 10 FCC Rcd  yO- xat 10988; WCAXTV, supra 10 FCC Rcd at 8798; WHP Television, L.P., 10 FCC Rcd 4979, 4980 (1995);  yO - x,WHKE(TV), supra 10 FCC Rcd at 4978; WIVBTV, supra 10 FCC Rcd at 4960; Mountain States Broadcasting, Inc.  yOG - x(KMSBTV), 9 FCC Rcd 2545, 2546 (1994); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716  yO -(1994); KEVN, Inc.,(KEVNTV and KIVVTV), 8 FCC Rcd 5077, 5078 (1993). Accordingly, Max's assertions that it had an effective  xlprogram for compliance with the children's television commercial limits, and that all of its  xzcommercial overages occurred because of inadvertence and/or human error, do not justify a reduction.   x9. In addition, Max argues that the $20,000 forfeiture assessed in the instant case is  xMinconsistent with forfeitures assessed against other stations for violations of the children's  X - xtelevision commercial limits. Max cites Le Sea Broadcasting Corporation (KWHE(TV)), 8 FCC  X - xRcd 336 (1993), and PonceNicasio Broadcasting (KCMY(TV)), 10 FCC Rcd 6728 (1995),  xwherein those licensees were assessed forfeiture of $20,000 for the broadcast of 27 program xlength commercials; and argues that, although it was assessed the same $20,000 forfeiture  xamount, the violations in those cases were more egregious because those licensees did not have  Xb- xprograms for compliance. Max also cites Tampa Bay Television, Inc. (WFTSTV), 8 FCC Rcd  x411 (1993), where a forfeiture of $10,000 was assessed for an unstated number of programlength  xcommercials between January 16 and March 5, 1992; that the threeweek period during which  xthose overages occurred was "close in duration" to the four week period during which "most" of  xZWSYTTV's violations occurred; and that there was "no apparent reason" why WSYTTV should  xbe assessed a forfeiture of $20,000 while WFTSTV was assessed a forfeiture of only $10,000.  X- x/Max further cites R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715 (1994), where the  xlicensee, which had no program for compliance with the commercial limits, was assessed the  xsame forfeiture amount of $20,000 for more than twice the number of commercial overages (80) over a 14 month period.   Rx10. The Commission has a great deal of discretion under Section 503 of the  XN- xMCommunications Act in determining forfeiture amounts. Triple X Broadcasting Co., Inc., 46  X7- xRR2d 788, 789 (B/C Bur. 1979), citing Brennan Broadcasting Co., 25 FCC 2d 400 (1970);  X - xKIEV(AM), supra 6 FCC Rcd at 4388. In view of the different factors involved in compliance  X - xwith the children's television commercial limits (e.g., number, type and duration of overages,  x.period of time over which the violations occurred, extent of compliance program, etc.), it is not  xpossible to devise a precise formula to calculate forfeiture amounts. However, the forfeiture  X - xassessed in Max NAL (WSYT(TV), supra, is generally consistent with forfeitures imposed in  xroughly similar cases, when the different circumstances are considered. In two of the cases cited"!x,-(-(ZZ "  X- xby Max (KWHE(TV), supra, and KCMY(TV), supra), the licensees received the same $20,000  xforfeiture assessments as WSYT(TV). KWHE(TV) and KCMY(TV) had fewer total overages  xthan WSYT(TV)(27 each as compared to 29), but more programlength commercials (27 each  xas compared to 18). The violations at KWHE(TV) and KCMY(TV) occurred over a period of  xapproximately 6 months; although WSYT(TV) asserts that "most" of its violations occurred over  xa one month period, there were other violations by WSYT(TV) both before and after that one Xv- xlmonth period.( vD yO- xԍ As stated above, the Commission does not and cannot focus on any one factor in assessing forfeitures for  xviolations of the children's television commercial limits. Accordingly, Max's assertion that the threeweek period  yO - xxduring which overages occurred in WFTSTV, supra, was "close in duration" to the four week period during which "most" of WSYTTV's violations occurred does not mandate that the same $10,000 forfeiture be assessed.( KWHE(TV) and KCMY(TV) repeated one violation 27 times; WSYT(TV)  x\committed several different violations, including one repeated 11 times and one repeated 14  x^times. Although Max argues that it had an "effective" program for compliance while  xkKWHE(TV) and KCMY(TV) did not, WSYT(TV)'s program was sufficiently deficient that (i)  xtwo of its "human errors" resulted in violations that were repeated 11 and 14 times, respectively,  xbefore they were discovered and corrected; and (ii) additional "human errors" resulted in  X - xadditional violations. With regard to WTWS(TV), supra, although there were 80 total  xcommercial overages, there were no programlength commercials. The Commission has routinely  xassessed a higher forfeitures for programlength commercials than for a significantly greater  X - xnumber of conventional overages. D yO- xԍ When the Commission adopted its children's television commercial rules and policies pursuant to the  xChildren's Television Act of 1990, the Commission specifically provided that, where a program is determined to be  yO- xYa programlength commercial, the entire program "would count toward the statutory commercial limits." Children's  yO`- xTelevision Programming, 6 FCC Rcd 2111, 2118 (1991). Thus, a halfhour programlength commercial would  xexceed the prorated limit on commercial matter in children's programming by 24.25 minutes for weekend  xwprogramming and 24 minutes for weekday programming. This is an egregious overage. In addition, the Commission  x;has made it abundantly clear that, independent of their duration, programlength commercials, by their very nature,  yO- xare extremely serious. In Children's Television Programming, id. 6 FCC Rcd at 2118, the Commission stated that  yOH- x,its programlength commercial policy "directly addresses a fundamental regulatory concern, that children who have  xdifficulty enough distinguishing program content from unrelated commercial matter, not be all the more confused by a show that interweaves program content and commercial matter." (Emphasis added.) On balancing the various different factors in the cases cited  xby Max, similar forfeiture amounts of $20,000 are appropriate, and clearly within the discretion  x.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.  X4- x 11. Accordingly, IT IS ORDERED THAT the Response to Max NAL (WSYT(TV)), supra,  xfiled by Max Television of Syracuse, L.P., IS DENIED. IT IS FURTHER ORDERED THAT,  xLpursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. 503(b),  xkMax Television of Syracuse, L.P., licensee of Television Station WSYT(TV), Syracuse, New  x=York, FORFEIT to the United States the sum of twenty thousand dollars ($20,000) for repeated  xviolations of Section 73.670 of the Commission's Rules, 47 C.F.R. 73.670. Payment of the  xforfeiture may be made by mailing to the Commission a check or similar instrument payable to  xthe Federal Communications Commission. With regard to this forfeiture proceeding, Max",-(-(ZZ"  xTelevision of Syracuse, L.P., may take any of the actions set forth in Section 1.80 of the  x>Commission's Rules, 47 C.F.R. 1.80, as summarized in the attachment to this Memorandum Opinion and Order. x FEDERAL COMMUNICATIONS COMMISSION x Roy J. Stewart x Chief, Mass Media Bureau Attachments "4,-(-(ZZ"  X- kwsytrd2.rel  X- x  }:1<#x6X@`7>fX@# #n6X@`7Fc&@#$// MAX TV OF SYRACUSE, L.P., WSYT(TV) (SYRACUSE ,NY) DA 972613 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$  ? <#x6X@`7>fX@#