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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 In reply refer to: 1800E1-LG July 24, 1998 Released: July 29, 1998 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Northeast Kansas Broadcast Service, Inc. Licensee, KTKA-TV 101 S.E. Monroe P.O. Box 2229 Topeka, KS 66603 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of seven thousand, five hundred dollars ($7,500) pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), under authority delegated to the Chief of the Mass Media Bureau by Section 0.283 of the Commission's Rules, 47 C.F.R.  0.283, for repeated violations of the Commission's rule limiting the amount of commercial matter that may be aired during children's programming. In the Children's Television Act of 1990, Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S.C. Sections 303a, 303b and 394, Congress directed the Commission to adopt rules, inter alia, limiting the amount 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. Accordingly, 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 on weekends and 12 minutes on weekdays. The Commission also stated 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). On February 2, 1998, you filed an application for renewal of license (FCC Form 303-S) for station KTKA-TV, Topeka, Kansas (File No. BRCT-980202KV). In response to Section III, Question 4 of that application, you certify that during the previous license term KTKA-TV failed to comply with the limitations on commercial matter in children's programming specified in Section 73.670 of the Commission's Rules. In Exhibit 3 to that application, you indicate that between May 31, 1994, and January 1, 1997, KTKA-TV violated the children's television commercial limits on four occasions. Of these four overages, one was four seconds in duration and three were program-length commercials. The first program-length commercial you describe occurred on November 17, 1995, when a commercial for Honey Nut Cheerios containing a five-second tag for "free Goosebump milk caps in marked boxes of Honey Nut Cheerios," aired during the "Goosebumps" program. You attribute the four-second conventional overage and the November 17 program-length commercial to inadvertence or human error, and assert that KTKA-TV took steps to prevent such violations from recurring. The remaining two program-length commercials you report occurred on May 31 and June 1, 1994, and involved the broadcast of a commercial for the Worlds of Fun theme park during the "Garfield" program. In addition to containing a "very brief" appearance of an actor dressed in Garfield costume, the commercial also mentioned an event at Worlds of Fun called "Garfield Magic Show." You contend, however, that "since the offending image was of a fleeting nature" it "could not reasonably be deemed to have contaminated the entire program to such an extent as to make it all a program length commercial," and that the May 31 and June 1 incidents were reported for information purposes. You further state that: Although it is often difficult to catch a situation which involves only a very fleeting image or mention of a character not otherwise associated with the product or service which is the actual focus and/or sponsor of the ad in question, KTKA-TV has taken and will continue to take such steps as are reasonably possible to ensure that, wherever possible, such instances are detected and that ads which contain even fleeting images or mentions of characters are not scheduled during a children's program which features such characters. KTKA-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on four occasions, three of which were program- length commercials, constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Northeast Kansas Broadcast Service, Inc. is hereby advised of its apparent liability for forfeiture in the amount of seven thousand, five hundred dollars ($7,500) for its apparent repeated violation of Section 73.670 of the Commission's Rules. The amount specified was reached after consideration of the factors set forth in Section 503(b)(2) of the Communications Act, and, in particular, the following criteria: (1) the number of instances of commercial overages; (2) the length and nature 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. These criteria 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. As discussed above, KTKA-TV exceeded the children's television commercial limits on four occasions over an extended period of approximately two years and seven months. 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 . . . . " Children's Television Programming, supra, 6 FCC Rcd at 5530 n.10. Although KTKA-TV appears to have made an effort to comply with the Commission's children's television commercial limits, that effort apparently was not sufficient in light of the violations described in the station's renewal application. Further, three of the overages were program-length commercials. Congress was particularly concerned about program-length commercials because young children often have difficulty distinguishing between commercials and programs. S. Rep. No. 227, 101st Cong., 1st Sess. 24 (1989). Given this Congressional concern, the Commission made it clear that program-length commercials, by their very nature, are extremely serious violations of the children's television commercial limits, stating that the program-length commercial policy "directly addresses a fundamental regulatory concern, that children who have difficulty enough distinguishing program content from unrelated commercial matter, not be all the more confused by a show that interweaves program content and commercial matter." Children's Television Programming, supra, 6 FCC Rcd at 2118. Accordingly, the Commission has routinely assessed higher forfeitures for program-length commercials than for a greater number of conventional overages. See, e.g., Channel 39 Licensee, Inc. (WDZL(TV), 12 FCC Rcd 14012, 14015 n.3. The number and magnitude of overages at issue here mean that children have been subjected to commercial matter greatly in excess of the limits contemplated by Congress when it enacted the Children's Television Act of 1990. Children's Television Programming, supra, 6 FCC Rcd at 2117-18. The only reasons cited by KTKA-TV for the commercial overages, inadvertence and human error, do not mitigate or excuse such violations. The Commission has repeatedly rejected inadvertence and human error as a basis for excusing violations of the children's television commercial limits. See, e.g., LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959 (1995); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (1995); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994). Furthermore, while corrective actions may have been taken to prevent subsequent violations of the children's television rules and policies, this does not relieve KTKA-TV of liability for violations which have occurred. See, e.g., WHP Television, L.P., 10 FCC Rcd 4979, 4980 (1995); Mountain States Broadcasting, Inc. (KMSB-TV), 9 FCC Rcd 2545, 2546 (1994); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (1994); International Broadcasting Corp., 19 FCC 2d 793, 794 (1969); KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993). We disagree, moreover, with your contention that the fleeting nature of the Garfield image and the mention of the "Garfield Magic Show" in the commercial for Worlds of Fun did not create a program-length commercial when it ran during the "Garfield" program. It is well- established that 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. The Commission has stated on numerous occasions that, 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. UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10986, 10988 (1995); see also Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (1995), aff'd, DA 97-2534 (released Dec. 4, 1997) (commercial for a fast food restaurant promoting a trip to Disney World as a contest prize contained a brief image of Goofy and aired during the program "Goof Troop"). Given all of these considerations, KTKA-TV's violation of Section 73.670 of the Commission's rules on four occasions, three of which were program-length commercials, warrants a forfeiture in the above-specified amount of $7,500. In a similar case, LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995) (LeSea Broadcasting), we assessed a forfeiture of $7,500 forfeiture for three commercial overages, all program-length commercials, which occurred over a period of approximately two months. There, the licensee attributed the violations to the failure of WHKE(TV)'s master control operator to delete commercial or promotional announcements which were included in, and contained material related to, the children's programs provided by an independent program supplier. More recently, in Second Generation of Iowa, Ltd. (KFXA(TV)), DA 98-304 (rel. Feb. 19, 1998) (Second Generation), and Dubuque TV Limited Partnership (KFXB(TV)), DA 98-305 (rel. Feb. 19, 1998) (Dubuque TV), we likewise assessed forfeitures in the amount of $7,500, each case involving three program-length commercials which occurred over a four-day period and were attributed to inadvertent scheduling errors. Compared to LeSea Broadcasting, Second Generation and Dubuque TV, KTKA-TV also had three program-length commercials, but involved a conventional overage of four-seconds as well. Though KTKA-TV's violations occurred over a longer period of time than those involved in LeSea Broadcasting, Second Generation and Dubuque TV, we note that the period of time over which the overages occurred is only one of the five criteria we consider in assessing the forfeiture amount. For all of these reasons, we find the violations here, on balance, to be comparable to those in LeSea Broadcasting, Second Generation and Dubuque TV. Therefore, we conclude that a comparable forfeiture is appropriate. You are afforded a period of thirty (30) days from the date of this letter "to show, in writing, why a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent." Section 1.80(f)(3) of the Commission's Rules, 47 C.F.R.  1.80(f)(3). Other relevant provisions of Section 1.80(f)(3) of the Commission's Rules are summarized in the attachment to this letter. Notwithstanding the substantial nature of the violations described here and the severity with which we regard them, we find you qualified to remain a Commission licensee and conclude that grant of your application would serve the public interest, convenience and necessity. Therefore, the license renewal application of Northeast Kansas Broadcast Service, Inc., for station KTKA-TV, Topeka, Kansas, File No. BRCT-980202KV, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures LGallo/vsd/MMB n:\winapps\wpwin\kidvid\ktka.nal $//Northeast Kansas Broadcast Service, Inc., KTKA-TV (Topeka, Kansas) DA 98-1495 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$