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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 ) ) MISSISSIPPI BROADCASTING ) PARTNERS ) ) Licensee of Television Station ) WABG-TV, Greenwood, Mississippi ) ) for a Forfeiture ) ) MEMORANDUM OPINION AND ORDER Adopted: July 20, 1998 Released: July 23, 1998 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 fifteen thousand dollars ($15,000) issued against Mississippi Broadcasting Partners (MBP), licensee of station WABG-TV, Greenwood, Mississippi; and (ii) MBP's Response to Notice of Apparent Liability and Petition for Reconsideration filed on August 11, 1997 (Petition). 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 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. 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 3, 1997, MBP filed an application to renew its license for WABG-TV (File No. BRCT-970203LD). In response to Section III, Question 4 of that application, WABG-TV certified that it had not complied with the limits on commercial matter in children's programming specified in Section 73.670 of the Commission's Rules. Therefore, in accordance with Question 4, MBP submitted an exhibit to its application, Exhibit 4, listing each segment of children's programming which exceeded the commercial limits. In Exhibit 4, MBP indicated that between June 6, 1992, and May 27, 1995, WABG-TV exceeded the commercial limits on children's television on 59 occasions. Of those commercial overages, nine were less than 30 seconds in duration, 10 were 30 seconds or longer but less than one minute in duration, 10 were one minute or longer but less than one and one- half minutes in duration, 11 were one and one-half minutes or longer but less than two minutes in duration, sixteen were two minutes or longer but less than three minutes in duration and three were greater than three minutes in duration. 4. In MBP NAL, we found that WABG-TV's record of exceeding the Commission's commercial limits on 59 occasions during the last license term constituted a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), MBP was advised of its apparent liability for forfeiture in the amount of $15,000. That amount was reached after consideration of the factors set forth in Section 503(b)(2) of the Communications Act, and, in particular, the five criteria consisting of: (1) the number of instances of commercial overages; (2) the length of each overage, 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. Applying these criteria to the facts of WABG-TV's case, we stated that not only was the total number of violations high, but that 40 of the commercial overages were one minute or longer in duration. Given this number and the nature of WABG-TV's overages, we concluded that children had been subjected to commercial matter greatly in excess of the limits contemplated by Congress when it enacted the Children's Television Act of 1990. Although 52 of the overages occurred in 1992, the first year that the children's television commercial limits were in effect, we said that this neither excused nor mitigated the violations. To this end, we referred to the Commission's statement made at the time it delayed the effective date of Section 73.670 of the Rules from October 1, 1991, until January 1, 1992, 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 . . . ." Children's Television Programming, 6 FCC Rcd at 5530 n.10. In addition, we rejected MBP's reasons for the violations, human error, inadvertence and/or misunderstanding of the rules, as a basis for excusing WABG-TV's violations of the commercial limits. Though WABG-TV implemented a plan to prevent future violations of the children's television commercial limitations, this did not relieve MBP of liability for the violations which had occurred. 5. In its Petition, MBP contends that, in assessing the forfeiture amount, the Commission failed to give appropriate weight to the fact that 52 of the 59 listed overages occurred early in WABG-TV's license term and very soon after the children's programming rules were enacted. That failure to consider the timing of the overages as a mitigating factor, MBP asserts, contradicts Commission precedent and renders imposition of a fine in this case an arbitrary and capricious action. In support, MBP maintains that the Commission has previously granted, without the imposition of any monetary forfeiture, the license renewals of other stations reporting overages which occurred soon after the children's programming rules were enacted. According to MBP, moreover, in declining to fine those broadcasters, the Commission "recognized that a period of trial and error is to be expected when a new rule is promulgated and that, therefore, it should be lenient regarding early violations of the children's programming limits." MBP further argues that, as a similarly-situated party, it should be granted leniency for WABG-TV's 52 overages which occurred during "an early trial and error period," and that if one overage can be excused because a broadcaster is still learning to comply with a new rule, then all broadcasters learning to comply should be similarly excused, regardless of the number of overages. For these reasons, MBP concludes that the fine assessed against WABG-TV is erroneous and should be reduced. 6. We disagree with MBP. Preliminarily, MBP cites no cases or authority in support of its argument that the Commission has previously excused violations based on a trial and error period vis- a-vis Section 73.670 of the Rules. Nor are we aware of any such cases. Rather, the Commission has consistently considered all violations of the children's television commercial limits occurring on and after the effective date of Section 73.670 to determine the appropriate sanction in a given case. See, e.g., Jefferson-Pilot Communications Company (WBTV(TV)), 12 FCC Rcd 2526 (1997) (79 overages occurring between January 18, 1992, and August 19, 1995, considered in assessing $20,000 forfeiture); UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10987 (1995) (218 overages occurring between January 2, 1992, and May 7, 1993, considered in assessing $40,000 forfeiture); Scripps Howard Broadcasting Co. (KNXV-TV), 9 FCC Rcd 2547 (1994) (five overages occurring in January and February 1992, considered in assessing $10,000 forfeiture); Paramount Stations of Houston, Inc. (KTXH-TV), 9 FCC Rcd 140 (1993) (132 overages occurring in 1992 considered in assessing $80,000 forfeiture). As we mentioned in MBP NAL, the Commission expected that, in delaying the effective date of Section 73.670, broadcasters and cable operators would have additional time within which to hone their plans to ensure compliance with the commercial limits. The fact that, even with the benefit of that additional time, WABG-TV failed to develop an effective compliance program by Section 73.670's effective date neither warrants nor justifies a reduction in the forfeiture amount assessed in MBP NAL. 7. We believe, too, that MBP essentially claims transitional difficulties by arguing that any overages occurring during a "trial and error period," i.e., the first year after Section 73.670's effective date, should be excused because broadcasters were still learning to comply with that new rule. In this regard, at the time it delayed the effective date of Section 73.670, the Commission noted that, in the context of enforcement action of violations of the limits, it would be unlikely to be sympathetic to claims of transitional difficulties. Children's Television Programming, 6 FCC Rcd at 5530 n.10. For this reason, we reject MBP's "trial and error period" argument as a basis for excusing WABG-TV's 52 overages which occurred regularly beginning June 6, 1992, through and including December 26, 1992. We conclude, moreover, that our consideration of those 52 overages was consistent with Commission practice and policy. See supra 6. 8. Furthermore, the monetary forfeiture at issue here was determined in accordance with the five criteria developed and applied by the Commission in previous cases, see supra 4, in conformity with the standards established in Section 503 of the Communications Act. In addition, the $15,000 forfeiture is consistent with the forfeitures imposed in similar cases and, in particular, to the forfeiture assessed in Centennial Communications, Inc, (WGNT(TV)), 12 FCC Rcd 1354 (1997) (Centennial). In that case, which we referred to in MBP NAL, we assessed a $14,000 forfeiture for 49 violations which occurred over a period of three years and four months. WGNT(TV) asserted that a majority of the violations occurred "soon after the limits were imposed, between 1992 and 1994," and attributed the violations to human error, inadvertence and misunderstanding and/or ignorance of the children's television commercial limits. However, we rejected those reasons as a basis for excusing the violations, and considered all of the reported overages occurring on and after January 1, 1992, the effective date of Section 73.670. Consistent with our decision in Centennial, we rejected those same reasons in MBP NAL when MBP offered them to explain WABG-TV's violations, and likewise considered all of WABG-TV's reported overages. We believe such consideration was proper and consistent with Commission policy and precedent. See supra 6. Though we assessed a slightly higher forfeiture in the instant case than in Centennial, we point out that WABG-TV had a greater number of total overages, which were also of generally longer durations. Therefore, in view of the foregoing considerations, we affirm our determination that, on balance, the $15,000 forfeiture assessed against MBP for WABG-TV's 59 violations of the children's television commercial limits was appropriate. 9. For all these reasons, the arguments contained in the Response to Notice of Apparent Liability and Petition for Reconsideration of the $15,000 forfeiture assessed in Mississippi Broadcasting Partners (WABG-TV), 12 FCC Rcd 9863 (1997), do not warrant reduction or remission of the assessed forfeiture. Accordingly, IT IS ORDERED THAT the Response to Notice of Apparent Liability and Petition for Reconsideration 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), Mississippi Broadcasting Partners FORFEIT to the United States the sum of fifteen thousand dollars ($15,000) 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, Mississippi Broadcasting Partners 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 n:\winapps\wpwin\kidvid\wabg.rd Mississippi Broadcasting Partners P.O. Box 1243 Greenwood, MS 38701 Mississippi Broadcasting Partners c/o Mark Prak, Esq. Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. P.O. Box 1800 Raleigh, NC 27602 $// MISSISSIPPI BROADCASTING PARTNERS, WABG-TV (Greenwood, MS) DA 98-1461 //$ $/ 300.503(b) FORFEITURES (FORFEITURE ORDER) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$