Federal Communications Commission Washington, D.C. 20554 In reply refer to: 1800E1-LG December 2, 1998 Released: December 3, 1998 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Paramount Stations Group of Fort Worth/Dallas, Inc. Licensee, KTXA(TV) c/o Anne C. Lucey, Esq. Viacom Inc. 1501 M Street, NW, Suite 1100 Washington, DC 20005 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of twelve thousand, five hundred dollars ($12,500) 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). The commercial limitations became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). On March 31, 1998, you filed an application for renewal of license (FCC Form 303-S) for station KTXA(TV), Arlington, Texas (File No. BRCT-980331KS). In response to Section III, Question 4 of that application, you certify that, during the previous license term, station KTXA(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 the renewal application, you indicate that between June 26, 1995, and October 1, 1996, station KTXA(TV) violated the children's television commercial limits on ten occasions. Of those ten overages, two were 15 seconds in duration, one was 20 seconds in duration, two were 30 seconds in duration and five were program-length commercials. As for the program-length commercials, you state that on September 5 and 6, 1995, station KTXA(TV) aired a commercial for a Playmate Toys' "Exosquad" product during the "Exosquad" program. The third program-length commercial you describe occurred on February 14, 1996, when a commercial for Honeycomb cereal, which promoted a Sega game contest and showed a "VR Troopers" character in the background, aired in a "VR Troopers" program. The remaining two program-length commercials occurred on September 30 and October 1, 1996, when a commercial for a Hasbro "Transformer" toy aired during the "Beast Wars" program. In addition to these ten overages, in a June 26, 1998 amendment to the renewal application, you report that on May 28 and June 1, 1998, station KTXA(TV) exceeded the commercial limits by two seconds. You attribute the 12 total overages to human error or inadvertence and assert that, following each incident, measures were implemented to prevent future violations. Station KTXA(TV)'s record during the last license term of exceeding the commercial limits on children's television programming on 12 occasions, five 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, Paramount Stations Group of Fort Worth/Dallas (Paramount) is hereby advised of its apparent liability for forfeiture in the amount of twelve thousand, five hundred dollars ($12,500) 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, station KTXA(TV) exceeded the children's television commercial limits on 12 occasions. This is a significant number of overages. Overages of this number and nature 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, 6 FCC Rcd at 2117-18. In this regard, five 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, 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. (1997). The violations occurred, moreover, over an extended period of approximately three years. When it delayed the effective date of Section 73.670 of the Rules until January 1, 1992, the Commission 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, 6 FCC Rcd at 5530 n.10. Although Paramount 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. The only reasons Paramount cites for the overages, human error and inadvertence, do not mitigate or excuse such violations. In fact, the Commission has repeatedly rejected human error and inadvertence 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 (MMB 1995) (LeSea Broadcasting); Buffalo Management Enterprises Corp. (WIVB- TV), 10 FCC Rcd 4959 (MMB 1995); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (MMB 1995); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (MMB 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 Paramount of liability for the violations which have occurred. See, e.g., WHP Television, L.P., 10 FCC Rcd 4979, 4980 (MMB 1995); Mountain States Broadcasting, Inc. (KMSB-TV), 9 FCC Rcd 2545, 2546 (MMB 1994); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (MMB 1994); KEVN, Inc., 8 FCC Rcd 5077, 5078 (MMB 1993); International Broadcasting Corp., 19 FCC 2d 793, 794 (1969). Given all of these considerations, station KTXA(TV)'s violation of Section 73.670 of the Commission's rules on 12 occasions, five of which were program-length commercials, warrants a forfeiture in the above-specified amount of $12,500. In a similar case, Television Marketing Group of Memphis, Inc. (WLMT(TV) and WMTU(TV)), 12 FCC Rcd 15309 (1997) (Television Marketing Group), we assessed a $12,500 forfeiture for 14 commercial limit violations consisting of four program-length commercials, one one-minute overage and nine 30-second overages. The overages in that case occurred over a period of approximately three years and two months and were attributed to inadvertent human error. Compared to Television Marketing Group, station KTXA(TV) has fewer total violations, but more program-length commercials. In both cases, the violations occurred over an extended period of years and were attributed to inadvertence and human error. For these reasons, we find station KTXA(TV)'s violations, on balance, to be comparable to those involved in Television Marketing Group. Therefore, having considered the forfeiture amount assessed in Television Marketing Group, and in view of the five criteria we use in analyzing violations of the commercial limits, we conclude that a comparable forfeiture is appropriate here. 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 Paramount Stations Group of Forth Worth/Dallas, Inc., for station KTXA(TV), Arlington, Texas, File No. BRCT-980331KS, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures LGallo/vsd/MMB n:\winapps\wpwin\kidvid\ktxa.nal $//Paramount Stations Group of Fort Worth/Dallas, Inc., KTXA(TV) (Arlington, Texas) DA 98- 2467//$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$