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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 Facility I.D. # 68851 In reply refer to: 1800E1-LG August 4, 1999 Released: August 6, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED United Communications Corporation Licensee, Station WWNY-TV 120 Arcade Street Watertown, NY 13601 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of seventeen thousand, five hundred dollars ($17,500), pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), 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 per hour on weekends and 12 minutes per hour on weekdays. The commercial limits became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). On February 1, 1999, you filed a license renewal application (FCC Forms 303-S) for station WWNY- TV, Carthage, New York (File No. BRCT-990201LL). In response to Section III, Question 5 of that application, you certify that, during the previous license term, station WWNY-TV failed to comply with the limits on commercial matter in children's television programming specified in Section 73.670 of the Commission's Rules. In Exhibit Sec. III.5B to the renewal application, you indicate that between January 15, 1994, and September 6, 1997, station WWNY-TV violated the children's television commercial limits on 82 occasions. Of these commercial overages, 30 were 15 seconds in duration and 52 were 45 seconds in duration. You state that, in each instance, the overage occurred when a 30 minute program contained in a one-hour block of children's programming was preempted, thereby causing a half-hour "island" of children's program for which the commercial limits were not prorated. You also claim that steps have been taken to ensure compliance with the commercial limits, including a change in local management and the creation os a full-time position in programming. Station WWNY-TV's record of exceeding the children's television commercial limits on 82 occasions during the last license term constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, United Communications Corporation (United) is hereby advised of its apparent liability for forfeiture in the amount of seventeen thousand, five hundred dollars ($17,500) for its apparent repeated violation of Section 73.670 of the Commission's Rules. The amount specified was reached after consideration of 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. The 82 instances in which station WWNY-TV exceeded the children's television commercial limits represents a very high number of violations. In addition, 52 of the overages were 45 seconds 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, supra, 6 FCC Rcd at 2117-18. Further, the violations occurred over an extended period of more than three years and eight months. Based on United's statements, moreover, it appears that they occurred as a result of inadvertence and/or human error on the part of station WWNY-TV's staff, who failed to prorate the commercial limits to half-hour islands of children's programming. However, the Commission has repeatedly rejected inadvertence and/or human error 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). Though station WWNY-TV implemented corrective measures to prevent subsequent violations of the children's television commercial limits this, too, does not relieve United of liability for the very high number of 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 these considerations, the violation of Section 73.670 of the Commission's Rules by station WWNY-TV on 82 occasions warrants a forfeiture in the above-specified amount of $17,500. We have previously dealt with one other case involving the same number of commercial limits violations. In that case, Lansing 53, Inc. (WLAJ(TV)), 12 FCC Rcd 18323 (MMB 1997) (Lansing 53), we assessed a $20,000 forfeiture for station WLAJ(TV)'s violation of the commercial limits on 82 occasions which occurred over a period of more than two years and two months, rejecting the licensee's reasons for those commercial overages. When compared, Lansing 53 and the instant case involved the same number and type of overages, i.e., all conventional overages and no program- length commercials, which occurred over an extended period of time of more than two years. However, the overages reported by station WWNY-TV were of generally shorter durations than those reported by station WLAJ(TV). Based on all of these facts, we find that the violations at issue here are comparable to, though slightly less serious than, those involved in Lansing 53. Therefore, we conclude that an appropriate forfeiture for station WWNY-TV's violations of the children's television commercial limits is in the amount of $17,500. 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 Communications Corporation for station WWNY-TV, Carthage, New York, File No. BRCT-990201LL, 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 Enclosure cc: Barry D. Wood, Esq.