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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 April 20, 1999 Released: April 21, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED United Television, Inc. Licensee, Station KUTP(TV) 4630 S. 33rd Street Phoenix, AZ 85040 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of ten thousand dollars ($10,000) 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). In addition, the Commission reiterated its long-standing policy against "host-selling," i.e, "the use of program talent to deliver commercials," including "endorsements or selling by animated cartoon characters as well as `live' program hosts." Id. at 2127 n.147, 6 FCC Rcd at 5097; see also Action for Children's Television, 50 FCC 2d 1, 8, 16-17 (1974). The 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 KUTP(TV), Phoenix, Arizona (File No. BRCT-980601HE). In response to Section III, Question 5 of that application, you certify that, during the previous license term, station KUTP(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 the renewal application, you indicate that between September 5, 1994, and October 21, 1996, station KUTP(TV) violated the children's television commercial limits and/or policies on six occasions. Of those violations, five were program-length commercials. The sixth incident you describe occurred on March 12, 1995, when station KUTP(TV) aired a commercial for Acclaim Entertainment, containing the Fantastic Four characters, during the "Fantastic Four" program. You attribute all six violations to human error and describe the corrective measures taken by station KUTP(TV) following five of them. Station KUTP(TV)'s record during the last license term of exceeding the children's television commercial limits on five occasions constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, United Television, Inc. (United) is hereby advised of its apparent liability for forfeiture in the amount of ten thousand dollars ($10,000) 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 KUTP(TV) exceeded the children's television commercial limits on five occasions. 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, all 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 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 United 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 KUTP(TV)'s renewal application. The only reason United cites for the commercial overages, human error, does 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 United 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 KUTP(TV)'s violation of Section 73.670 of the Commission's rules on five occasions, all program-length commercials, warrants a forfeiture in the above-specified amount of $10,000. In a similar case, Fant Broadcasting of Ohio, Inc. (WWHO(TV)), 13 FCC Rcd 8982 (MMB 1997) (Fant Broadcasting), we assessed a $10,000 forfeiture for station WWHO(TV)'s broadcast of five program-length commercials over a period of more than two years and eight months. The licensee in that case attributed the violations to inadvertence and/or human error, and asserted that station WWHO(TV)'s procedures were modified and/or personnel were instructed to prevent recurrence. Likewise, in Paramount Stations Group, Inc. (WKBD(TV)), 12 FCC Rcd 18326 (MMB 1997) (Paramount), we assessed a $10,000 forfeiture for station WKBD(TV)'s broadcast of five program-length commercials over a period of approximately three years and one month. The licensee attributed four of those violations to human error and one to the inclusion of program-related commercial matter in a program supplied to station WKBD(TV) by Fox Television Network. Compared to Fant Broadcasting and Paramount, station KUTP(TV) had the same number and type of violations of the children's television commercial limits. In addition, the licensees in all three cases cited similar reasons for their respective violations. Though station KUTP(TV)'s violations occurred over a longer period of time than the violations involved in Fant Broadcasting and Paramount, 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 Fant Broadcasting and Paramount. Therefore, we conclude that an appropriate, comparable forfeiture is in the amount of $10,000. As for the March 12, 1995 broadcast of a commercial for Acclaim Entertainment containing the Fantastic Four characters during the "Fantastic Four" program, it appears to have violated the Commission's policy concerning host-selling, see supra  2, which involves program-related characters promoting any product during the character(s)' program. See, e.g., Ponce-Nicasio Broadcasting (KCMY(TV)), 10 FCC Rcd 6728 (1995). Host-selling is a practice that the Commission has denounced because it takes unfair advantage of the trust that children place in program characters. Children's Television Recon, 6 FCC Rcd at 5097; Action for Children's Television, 50 FCC 2d at 16-7. In this regard, the Commission has stated that "host-selling encompasses any character endorsement -- not just direct vocal appeals -- that has the effect of confusing a child viewer from distinguishing between program and non-program material." WHYY, Inc. (WHYY-TV), 7 FCC Rcd 7123 (1992). For example, the Commission has determined that "advertisements featuring the same type of animation that is regularly featured in the accompanying program constitutes host- selling." Id. Based on the information before us, we believe the commercial broadcast on March 12, 1995, violated our host-selling policy. We therefore ADMONISH you to avoid such a situation in the future. With respect to the forfeiture assessed 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 United Television, Inc., for station KUTP(TV), Phoenix, Arizona, File No. BRCT-980601HE, IS HEREBY GRANTED, subject to the condition that, on December 31, 2006, or by such other date as the Commission may establish in the future under Section 309(j)(14)(A) and (B) of the Communications Act, the licensee shall surrender either its analog or its digital television channel for reallocation or reassignment pursuant to Commission regulations. The channel retained by the licensee will be used to broadcast digital television only after this date. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Marvin J. Diamond, Esq.