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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of Liability of ) ) TELEVISION MARKETING GROUP ) OF MEMPHIS, INC. ) ) Licensee of Television Stations ) WLMT(TV), Memphis, Tennessee and) WMTU(TV), Jackson, Tennessee ) ) for a Forfeiture ) MEMORANDUM OPINION AND ORDER Adopted: May 26, 1999 Released: May 28, 1999 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief, Mass Media Bureau, acting pursuant to authority delegated by Section 0.283 of the Commission's Rules, 47 C.F.R.  0.283, has before it for consideration the following documents: (1) a Notice of Apparent Liability (NAL) for forfeiture in the amount of twelve thousand, five hundred dollars ($12,500) issued against Television Marketing Group of Memphis, Inc. (TMG of Memphis), licensee of stations WLMT(TV), Memphis, Tennessee, WMTU(TV), Jackson, Tennessee, for those stations' apparent repeated violation of Section 73.670 of the Commission's Rules, 47 C.F.R. 73.670, which limits the amount of commercial matter that may be aired during children's programming; and (2) TMG of Memphis' request for elimination or reduction of the forfeiture (Request). 2. By way of background, in the Children's Television Act of 1990, 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, 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 reaffirmed and clarified its long-standing policy 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"). These commercial limitations became effective on January 1, 1992. 3. On April 1, 1997, TMG of Memphis filed applications to renew its licenses for stations WLMT(TV) and WMTU(TV) (File Nos. BRCT-970401LA-B). In response to Section III, Question 4 of those applications, TMG of Memphis certified that, during the previous license term, stations WLMT(TV) and WMTU(TV) had not complied with the limits on commercial matter in children's programming specified in Section 73.670 of the Commissions Rules. Therefore, in accordance with Question 4, TMG of Memphis submitted exhibits to the applications in which it indicated that, between August 16, 1993, and October 7, 1996, WLMT(TV) and WMTU(TV) exceeded the children's television commercial limits on 14 occasions. Of these violations, nine were 30 seconds in duration, one was one minute in duration and four were program-length commercials. TMG of Memphis also offered explanations for the violations, collectively described as "inadvertent human error," and asserted that, after each violation was discovered, the stations' management established policies and procedures to prevent recurrence. 4. In WLMT(TV)/WMTU(TV) NAL, we found that station WLMT(TV)'s and station WMTU(TV)'s records of exceeding the Commission's commercial limits on 14 occasions during their last license term constituted a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), TMG of Memphis was advised of its apparent liability for forfeiture in the amount of $12,500. That amount was reached after consideration of the factors set forth in Section 503(b)(2) of the Communications Act, and, in particular, the five criteria consisting of: (1) the number of instances of commercial overages; (2) the length of each overage, the period of time over which the overages occurred; (4) whether or not the licensee established an effective program to ensure compliance; and (5) the specific reasons that the licensee gave for the overages. Applying these criteria to the facts involved in the cases of stations WLMT(TV) and WMTU(TV), we stated that not only was the total number of violations significant, but that 4 of the violations were program- length commercials. Given this number and the nature of the stations' overages, we concluded that children had been subjected to commercial matter greatly in excess of the limits contemplated by Congress when it enacted the Children's Television Act of 1990. In addition, we rejected TMG of Memphis' reasons for the violations - all of which amounted to inadvertent human error - as a basis for excusing the violations of the commercial limits by stations WLMT(TV) and WMTU(TV). We further stated that, though the stations implemented policies to prevent future violations of the children's television commercial limitations, this did not relieve TMG of Memphis of liability for the violations which had occurred. 5. In its Request, TMG of Memphis contends that extenuating circumstances justify the elimination or reduction of the forfeiture. The licensee maintains, in particular, that all 14 violations resulted from "honest mistakes," which are "understandable and in fact forgivable." To wit, TMG of Memphis reiterates the reasons for the violations which were cited in its renewal applications for stations WLMT(TV) and WMTU(TV). In addition, claiming to have worked hard to set up the proper procedures and to keep any overages from occurring, TMG of Memphis also asserts that, "in the true spirit of the Children's Television Act of 1990," it has protected children from overexposure to commercials and that its overall compliance rate of 99.9 percent justifies elimination or reduction of the forfeiture. DISCUSSION 6. We disagree with TMG of Memphis. Contrary to its assertion, TMG of Memphis has presented no extenuating circumstances which warrant the elimination or reduction of the forfeiture assessed in WLMT(TV)/WMTU(TV) NAL. Rather, the licensee offers the same explanations for the 14 violations which were contained in the renewal applications for stations WLMT(TV) and WMTU(TV). The fact that, in its Request, TMG of Memphis characterizes the 14 violations as "honest mistakes" does not provide a sufficient basis for us to revisit the conclusions reached in WLMT(TV)/WMTU(TV) NAL, or to depart from Commission precedent which clearly establishes that human error and inadvertence do not excuse violations of the children's television commercial limits. See, e.g., Springfield Broadcasting Partners (WRSP-TV) and Urbana Champaign Broadcasting Partners (WCCU(TV)), FCC 99-27 (released Feb. 23, 1999); Paramount Stations Group of Houston, Inc. (KTXH(TV)), 13 FCC Rcd 21816 (MMB 1998); Malrite Communications Group, Inc. (WOIO(TV), 12 FCC Rcd 18052 (MMB 1997); 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). 7. Furthermore, we note here, as we did in WLMT(TV)/WMTU(TV) NAL, that while TMG of Memphis may have worked hard to set up proper procedures to ensure compliance with the commercial limits, "it is a apparent that that effort was not sufficient in view of the violations reported in the stations' renewal applications." It is, in fact, the efficacy of a licensee's compliance program, not the mere presence of a program, that we look to when assessing a forfeiture for violations of the commercial limits. Because we considered whether TMG of Memphis established an effective compliance program in determining the forfeiture amount in WLMT(TV)/WMTU(TV) NAL, we acted appropriately and in a manner consistent with Commission precedent. In this regard, we refer once again to the Commission's expectation that, in delaying the effective date of Section 73.670, broadcasters and cable operators would have additional time within which to hone their plans to ensure compliance with the commercial limits. The fact that, even with the benefit of that additional time, TMG of Memphis' programs at stations WLMT(TV) and WMTU(TV) had shortcomings which resulted in violations of the children's television commercial limits does not warrant a reduction in the forfeiture amount. Nor do we believe that TMG of Memphis' implementation of procedures to prevent future violations after discovering the overages is the kind of measure which warrants a reduction of forfeiture. 8. For these reasons, we conclude that the arguments contained in TMG of Memphis' Request do not warrant elimination or reduction of the $12,500 forfeiture assessed in Television Marketing Group of Memphis, Inc. (WLMT(TV)/WMTU(TV)), 12 FCC Rcd 15309 (MMB 1997). 9. Accordingly, IT IS ORDERED THAT Television Marketing Group of Memphis, Inc.'s' request for elimination or reduction of the forfeiture assessed in Television Marketing Group of Memphis, Inc. (WLMT(TV)/WMTU(TV)), 12 FCC Rcd 15309 (MMB 1997) IS DENIED. 10. IT IS FURTHER ORDERED THAT, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), Television Marketing Group of Memphis, Inc., licensee of stations WLMT(TV), Memphis, Tennessee and WMTU(TV), Jackson, Tennessee, FORFEIT to the United States the sum of twelve thousand, five hundred dollars ($12,500) for willful and repeated violations of Section 73.670 of the Commission's Rules, 47 C.F.R.  73.670. Payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission. With regard to this forfeiture proceeding, Television Marketing Group of Memphis, Inc. may take any of the actions set forth in Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, as summarized in the attachment to this Memorandum Opinion and Order. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau cc: William M. Barnard, Esq.