******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 LeSea Broadcasting Corp. Licensee, KWHB(TV) P.O. Box 12 South Bend, IN 46624 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of twelve thousand dollars ($12,000) 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. 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 applications for renewal of licenses (FCC Forms 303-S) for station KWHB(TV), Tulsa, Oklahoma (File No. BRCT-980202KZ). In response to Section III, Question 4 of that application, you certify that during the previous license term KWHB(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 4 to the renewal application, you indicate that between July 13, 1996, and December 1, 1997, the KWHB(TV) exceeded the children's television commercial limits on 47 occasions. Of these 47 overages, 29 were 15 seconds in duration, seven were 30 seconds in duration, one was 35 seconds in duration, eight were 45 seconds in duration, one was one minute in duration and one was one minute and 35 seconds in duration. You attribute the overages to an error in the computer program at your "home office," and assert that the error has been corrected. In addition to assuring the Commission that you understand the importance of complying with the children's television commercial limits, you say that KWHB(TV) will take all appropriate steps to avoid a recurrence of this error. KWHB(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on 47 occasions constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, LeSea Broadcasting Corp. is hereby advised of its apparent liability for forfeiture in the amount of twelve thousand dollars ($12,000) 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, KWHB(TV) exceeded the children's television commercial limits on 47 occasions. This is a significant number of violations. The violations occurred regularly, moreover, over an extended period of approximately one year and three 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. It is apparent that KWHB(TV) did not establish an effective program to monitor compliance with the children's television commercial limits. In addition, from the information provided in your renewal application, it appears that the cited violations resulted from inadvertence and/or human error stemming from the failure of KWHB(TV)'s personnel to detect, over the course of more than a year, the computer error responsible for the commercial overages. The Commission, however, 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). Although corrective actions may have been taken to prevent subsequent violations of the Commission's children's television rules and policies, this does not relieve KWHB(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); KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993); International Broadcasting Corp., 19 FCC 2d 793, 794 (1969). Consideration of all of these factors warrants a forfeiture in the above-specified amount of $12,000. In a similar case, Centennial Communications, Inc. (WGNT(TV), 12 FCC Rcd 1354 (1997) (Centennial Communications), we assessed a forfeiture of $14,000 for 49 commercial limit violations. Of those 49 overages, nine were 15 seconds or less in duration, 28 were 30 seconds in duration, two were 45 seconds in duration, three were one minute in duration, four were one minute and 30 seconds in duration, one was two minutes in duration, one was two minutes and 30 seconds in duration and one was two minutes and 40 seconds in duration. The overages occurred over a period of more than four years, and most were attributed to human error, inadvertence, misunderstanding and/or ignorance of the children's television commercial limits. More recently, in KSAX-TV, Inc. (KSAX(TV)/KRWF(TV)), DA 98-1002 (rel. May 28, 1998), we assessed a $10,000 forfeiture for 49 commercial limit violations. Of those 49 overages, eight were four seconds in duration, 40 were 15 seconds in duration and one was 40 seconds in duration. The overages in KSAX-TV, Inc. occurred over a period of approximately one year and three months, and were attributed to human error and inadvertence. As compared to Centennial Communications, KWHB(TV) had slightly fewer total violations, generally of shorter durations, which occurred over a shorter period of time. When viewed against KSAX-TV, Inc., KWHB(TV) also had two fewer total violations, though they were mostly of longer durations, which occurred over approximately the same length of time. For these reasons, we find that the number and nature of the violations in the instant case fall between those involved in Centennial Communications and KSAX-TV, Inc. Therefore, having considered the forfeiture amounts assessed in Centennial Communications and KSAX-TV, Inc., as well as the five criteria we use in analyzing violations of the children's television commercial limits, we conclude that a forfeiture of $12,000 is appropriate in this case. 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 applications of LeSea Broadcasting Corp. for station KWHB(TV), Tulsa, Oklahoma (File No. BRCT-980202KZ), IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: John E. Fiorini, III, Esq. LGallo/vsd/MMB n:\winapps\wpwin\kidvid\kwhb.nal cc address: LeSea Broadcasting Corp. Licensee, KWHB(TV) c/o John E. Fiorini, III, Esq. Gardner, Carton & Douglas 1301 K Street, NW, Suite 900 Washington, DC 20005 $//LESEA BROADCASTING CORP., KWHB(TV) (Tulsa, OK), DA 98-1496 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$