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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. # 67784 In reply refer to: 1800E1-LG August 10, 1999 Released: August 12, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Grant Television, Inc. Licensee, Station WNYO-TV 915 Middle River Drive, Suite 409 Ft. Lauderdale, FL 33304 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 reaffirmed and clarified its long-standing policy against "program-length commercials." The Commission defined a "program-length commercial" as "a program associated with a product, in which commercials for that product are aired," and stated that the entire duration of any program-length commercial would be counted as commercial matter for the purpose of the children's television commercial limits. Children's Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). 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 an application for renewal of license (FCC Form 303-S) for station WNYO-TV, Buffalo, New York (File No. BRCT-990201KZ). In response to Section III, Question 5 of that application, you certify that, during the previous license term, station WNYO-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 July 6, 1998, and November 24, 1998, station WNYO-TV violated the children's television commercial limits on 24 occasions. Of these 24 overages, 17 were 30 seconds in duration and seven were program-length commercials. You attribute the 17 conventional overages to inadvertence and human error. As for the program-length commercials, you maintain that five occurred due to errors made by the syndicated programming supplier, who included a 15-second "Spirit of Mickey" commercial spot containing a two-second still image of Donald Duck in the feed for several animated Disney programs. You assert that the remaining program-length commercials occurred because the programming syndicator inadvertently placed commercials for a "Robocop" action figure during the "Robocop" program aired by station WNYO(TV) on two occasions. Also in Exhibit 2, you include descriptions of the corrective steps taken by station WNYO(TV) to ensure future compliance with the children's television commercial limits. Station WNYO-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on 24 occasions constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Grant Television, Inc. (Grant TV) is hereby advised of its apparent liability for forfeiture in the amount of fourteen thousand dollars ($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 WNYO-TV exceeded the children's television commercial limits on 24 occasions, including seven program-length commercials, over approximately a five-month period. 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, 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). Further, the reasons Grant TV offers for station WNYO-TV's violations do no excuse or mitigate them. Specifically, the fact that the seven reported program-length commercials occurred in programming provided by the programming syndicator does not absolve Grant TV's responsibility for those 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. In addition, the Commission has repeatedly rejected human error and inadvertence, the reasons Grant TV cites for the 17 conventional overages, as bases 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). While corrective actions may have been taken to prevent subsequent violations of the children's television rules and policies, moreover, this does not relieve Grant TV 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 WNYO-TV's violation of Section 73.670 of the Commission's rules on 24 occasions, seven of which were program-length commercials, warrants a forfeiture in the above-specified amount of $14,000. In a similar 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, one was 45 seconds in duration, two were one minute in duration and seven were program-length commercials. The licensee in WGNX, Inc. attributed the violations to mechanical failure and/or human error, or to errors made by program advertisers or distributors, and claimed to have implemented policies and procedures to prevent recurrences. Compared to station WGNX-TV, station WNYO-TV reported slightly fewer total overages, but the same number of program-length commercials. The licensees in both cases offered essentially the same explanations for their respective violations, which we rejected, and took corrective actions to prevent future violations. Though station WNYO-TV's violations occurred over a longer period of time than those at issue in WGNX, Inc., we note that the period of time over which the violations 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 WGNX, Inc. Therefore, we conclude that an appropriate, comparable forfeiture is in the amount of $14,000. 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 Grant Television, Inc. for station WNYO-TV, Buffalo, New York, File No. BRCT-990201KZ, 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: Kenneth E. Satten, Esq.