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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 March 2, 1999 Released: March 3, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED KUSK, Inc., Debtor-in-Possession Licensee, KUSK(TV) 3211 Tower Road Prescott, AZ 86301 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of eight thousand dollars ($8,000) 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. 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 KUSK(TV), Prescott, Arizona (File No. BRCT-980601HD). In response to Section III, Question 4 of that application, you certify that, during the previous license term, station KUSK(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 October 31, 1993, and December 17, 1995, station KUSK(TV) violated the children's television commercial limits on 31 occasions. Of these 31 overages, seven were 30 seconds in duration, four were 45 seconds in duration, five were one minute in duration, four were one minute and 15 seconds in duration, two were one minute and 30 seconds in duration, six were one minute and 45 seconds in duration, two were two minutes and fifteen seconds in duration and one was three minutes and 30 seconds in duration. You attribute the overages to inadvertence and human error, and describe the corrective measures you have taken to prevent future violations. Station KUSK(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on 31 occasions, constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, KUSK, Inc., Debtor-in-Possession is hereby advised of its apparent liability for forfeiture in the amount of eight thousand dollars ($8,000) 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 KUSK(TV) exceeded the children's television commercial limits on 31 occasions, including 20 overages one minute or longer in duration. 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 addition, the violations occurred regularly over an extended period of more than two 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 KUSK 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 KUSK(TV)'s renewal application. The only reasons cited by KUSK for commercial overages, inadvertence and human error, do 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 KUSK of liability for the violations which have occurred, See, e.g., WHIP Television, L.P. (WHIP-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 KUSK(TV)'s violation of Section 73.670 of the Commission's rules on 31 occasions warrants a forfeiture in the above-specified amount of $8,000. Recently, in Eagle Communications, Inc. (KTVM(TV)), 13 FCC Rcd 8531 (MMB 1998) (Eagle Communications), an $8,000 forfeiture was assessed for 28 overages which occurred over a nine- month period. Of those overages, three were 15 seconds in duration, six were between 30 and 55 seconds in duration, 11 were between one minute and one minute and 45 seconds in duration, three were two minutes in duration, one was two minutes and 15 seconds in duration, two were two minutes and 30 seconds in duration and two were two minutes and 40 seconds in duration. The licensee in that case attributed the overages to human and/or computer error and asserted that it took corrective measures to prevent future overages. In another case, LWWI Broadcasting, Inc. (WANE- TV), 12 FCC Rcd 10511 (MMB 1997)(LWWI Broadcasting), an $8,000 forfeiture was assessed for 40 overages which occurred over a two year period. Of those overages, 33 were less than 30 seconds in duration, five were 30 seconds in duration, one was 34 seconds in duration and one was one minute and 34 seconds in duration. The licensee in LWWI Broadcasting attributed station WANE-TV's overages to human error and maintained that the station established policies and procedures to prevent recurrence of such errors. Compared to Eagle Communications, station KUSK(TV) had more total overages which occurred over a longer period of time, but fewer overages which were two minutes or longer in duration. As compared to LWWI Broadcasting, station KUSK(TV) had fewer total overages which occurred over approximately the same amount of time, but more overages of significantly longer durations. The licensees in all three cases cited virtually the same explanations for their respective overages and claimed to have established policies and procedures to prevent future violations of the children's television commercial limits. Based on these considerations, we find the violations in the instant case, on balance, comparable to those in Eagle Communications and LWWI Broadcasting, and conclude that an appropriate, comparable forfeiture is $8,000. 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 KUSK, Inc., Debtor-in-Possession, for station KUSK(TV), Prescott, Arizona, File No. BRCT-980601HD, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc w/ encl: Brian M. Madden