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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. # 22206 In reply refer to: 1800E1-LG August 10, 1999 Released: August 12, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Fox Television Stations, Inc. Licensee, Station WNYW(TV) c/o Molly Pauker, Esq. 5151 Wisconsin Avenue, N. W. Washington, D. C. 20016 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. 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 January 27, 1999, you filed an application for renewal of license (FCC Form 303-S) for station WNYW(TV), New York, New York (File No. BRCT-990127KG). In response to Section III, Question 5 of that application, you certify that, during the previous license term, station WNYW(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 4 to that application, you indicate that station WNYW(TV) violated the children's television commercial limits on six occasions between March 19, 1994, and September 26, 1998. Of these six overages, two were 30 seconds in duration, one was two minutes and 30 seconds in duration and three were program-length commercials. You attribute five of the overages to human error and/or inadvertence, and the remaining overage to a commercial make-good. In addition, you describe the measures taken by station WNYW(TV) after each incident to prevent future violations of the commercial limits. Station WNYW(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on six occasions, three of which were program-length commercials, constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Fox Television Stations, Inc. (Fox) 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 WNYW(TV) exceeded the children's television commercial limits on six occasions, three of which were program-length commercials. 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. Furthermore, 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). In addition, the violations occurred over an extended period of approximately four years and six months. 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 Fox 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 the station's renewal application. The only reasons Fox cites for the commercial overages, inadvertence and/or human error and a commercial make-good, do no mitigate or excuse such violations. The Commission has repeatedly rejected inadvertence, human error and commercial make-goods as bases for excusing violations of the children's television commercial limits. See, e.g., Kentuckiana Broadcasting, Inc. (WFTE(TV)), 13 FCC Rcd 7044 (1998); 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 Fox 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 WNYW(TV)'s violation of Section 73.670 of the Commission's rules on six occasions, including three program-length commercials, warrants a forfeiture in the above-specified amount of $8,000. In a similar case, Northeast Kansas Broadcast Service, Inc. (KTKA(TV)), 13 FCC Rcd 13930 (MMB 1998) (Northeast), we assessed a forfeiture of $7,500 for four violations consisting of one four-second overage and three program-length commercials which occurred over a period of two and one-half years. The licensee in Northeast attributed its station's violations to inadvertence and/or human error, and stated that it had implemented measures to prevent future overages. Compared to Northeast, station WNYW(TV) reported the same number of program-length commercials, but two more conventional overages than station KTKA(TV). Further, all three of station WNYW(TV)'s conventional overages were of significant durations, one lasting as long as two minutes and 30 seconds. Based on all of these facts, we find that the violations at issue here are comparable to, though slightly more serious than, those involved in Northeast. Therefore, we conclude that an appropriate forfeiture for station WNYW(TV)'s violations of the children's television commercial limits is in the amount of $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 Fox Television Stations, Inc. for station WNYW(TV), New York, New York, (File No. BRCT-990127KG), 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