******************************************************** 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 February 24, 1999 Released: February 26, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Larry H. Miller Communications Corporation Licensee, KJZZ-TV 5181 Amelia Earhart Drive Salt Lake City, UT 84116 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of fourteen thousand dollars ($14,000) 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. 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 June 1, 1998, you filed an application for renewal of license (FCC Form 303-S) for station KJZZ- TV, Salt Lake City, Utah, (File No. BRCT-980601KV). In response to Section III, Question 4 of that application, you certify that, during the previous license term, station KJZZ-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 2 to that application, you indicate that between November 4, 1993, and April 4, 1995, station KJZZ-TV violated the children's television commercial limits on 29 occasions. Of these 29 overages, one was 15 seconds in duration, nine were 30 seconds in duration, one was 45 seconds in duration, 11 were one minute in duration, one was one minute and 15 seconds in duration, one was one minute and 30 seconds in duration, one was two minutes in duration and four were program-length commercials. You attribute the 25 conventional overages to the failure of a carry-over employee from the prior licensee's tenure to oversee the station's compliance with the commercial limits adequately, and state that, in response, you hired a new traffic manager who identified several problems and immediately took corrective actions. With respect to the program- length commercials, you maintain that the first two occurred on November 28 and 30, 1994, when a commercial for "Sega Pocket Arcade" games, featuring the "Sonic the Hedgehog" game aired during the show "Sonic the Hedgehog." You assert that the station was informed of this situation by the program distributor on December 1, 1994, and corrected the problem immediately. The remaining two incidents occurred on April 3 and 4, 1995, when an advertisement for a movie featuring a character from the "Goof Troop" show aired during the "Goof Troop" program. You state that the station preempted the advertisement upon receiving notification from the distributor. Station KJZZ-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on 29 occasions, four 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, Larry H. Miller Communications Corporation (LHMCC) is hereby advised of its apparent liability for forfeiture in the amount of fourteen thousand ($14,000) 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, station KJZZ-TV exceeded the children's television commercial limits on 29 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, four 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 overages occurred, moreover, over an extended period of one year and five months. 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 LHMCC 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 station KJZZ-TV's renewal application. The fact that the four reported program-length commercials occurred in programming provided by the programming distributor does not absolve LHMCC's responsibility for the violations. The Commission has consistently held that a licensee's reliance on a program's source or producer for compliance with our children's television rules and policies will not excuse or mitigate violations which do occur. See, e.g., Max Television of Syracuse, L.P. (WSYT(TV)), 10 FCC Rcd 8905 (MMB 1995); Mt. Mansfield Television, Inc. (WCAX-TV), 10 FCC Rcd 8797 (MMB 1995); Boston Celtics Broadcasting Limited Partnership (WFXT(TV)), 10 FCC Rcd 6686 (MMB 1995); WRGB Broadcasting, Inc., MMB Admonition dated August 10, 1994. The only reason LHMCC cites for the remaining overages, human error, does not mitigate or excuse such violations. 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); 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 LHMCC of liability for the violations which have occurred, See, e.g., WHP Television, L.P. (WHP-TV), 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. (KEVN-TV), 8 FCC Rcd 5077, 5078 (MMB 1993); International Broadcasting Corporation, 19 FCC 2d 793, 794 (1969). Given all of these considerations, station KJZZ-TV's violation of Section 73.670 of the Commission's rules on 29 occasions, four of which were program-length commercials, warrants a forfeiture in the above-specified amount of $14,000. In a recent case, WGNX, Inc. (WGNX-TV), 12 FCC Rcd 9866 (MMB 1997), we assessed a $14,000 forfeiture for 26 violations which occurred over a period of approximately two years and four months. Of those violations, four were less than 30 seconds in duration, 12 were 30 seconds in duration, two were one minute in duration, and seven were program- length commercials. The licensee in that case attributed the violations to mechanical failure and/or human error, or to errors made by program advertisers or distributors. Compared to WGNX, Inc., station KJZZ-TV had fewer program-length commercials, but more conventional overages of substantially longer durations. However, the violations at issue in this case and those involved in WGNX, Inc. occurred over an extended period of time, and the licensees in both cases offered essentially the same explanations for their respective violations and took corrective actions to prevent future violations. Based on these considerations, we find the violations in the instant case, on balance, comparable to those in WGNX, Inc. Therefore, we conclude that a comparable forfeiture in the amount of $14,000 is appropriate. You are afforded a period of 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 Larry H. Miller Communications Corporation for station KJZZ-TV, Salt Lake City, Utah, File No. BRCT-980601KV, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Joshua W. Resnick, Esq.