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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 Facility I.D. #73907 August 26, 1999 Released: August 27, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED WPTT, Inc. Licensee, Station WCWB(TV) 3474 William Penn Highway Pittsburgh, PA 15235 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 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). These commercial limitations became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). On April 1, 1999, you filed an application for renewal of license (FCC Form 303-S) for station WCWB(TV), Pittsburgh, Pennsylvania (File No. BRCT-990401KG). In response to Section III, Question 5 of that application, you certify that, during the previous license term, station WCWB(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 between December 29, 1994, and July 8, 1998, station WCWB(TV) exceeded the children's television commercial limits on eight occasions, all of which were program-length commercials. Of those eight program-length commercials, you attribute seven to inadvertence and human error on the part of station WCWB(TV)'s employees. You state that the remaining program-length commercial occurred because a program and a commercial for a product related to that program were integrated into the same feed by the program's syndicator. In addition, you describe the corrective measures taken by station WCWB(TV) following each incident to ensure future compliance with the children's television commercial limits. Station WCWB(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on eight occasions constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, WPTT, Inc. 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 WCWB(TV) exceeded the children's television commercial limits on eight occasions, all 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. Children's Television Programming, 6 FCC Rcd at 2117-18. 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). Thus, in Children's Television Programming, 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." 6 FCC Rcd at 2118. Accordingly, in interpreting and applying the Commission's policies regarding program-length commercials, we are concerned about and dealing with the cognitive abilities of young children, not adults. See, e.g., Scripps Howard Broadcasting Company (KNXV-TV), 12 FCC Rcd 19504, 19505 (MMB 1997), aff'g 9 FCC Rcd 2547 (MMB 1994). The overages occurred, moreover, over a period of approximately three years and seven 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. The reasons WPTT, Inc. cites for seven of the program-length commercials, inadvertence and human error, do not mitigate or excuse them. The Commission has repeatedly rejected inadvertence and human error 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); UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10987 (1995); LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959 (1995); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (1995); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994). Further, while WPTT, Inc. asserts that the remaining violation occurred due to an error by a program syndicator, this does not absolve WPTT, Inc. of responsibility for that violation, as 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. Nor does WPTT, Inc.'s implementation of policies to prevent subsequent violations of the children's television commercial limits relieve it of liability for violations which have occurred. International Broadcasting Corp., 19 FCC 2d 793, 794 (1969); KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (1994); Mountain States Broadcasting, Inc. (KMSB-TV), 9 FCC Rcd 2545, 2546 (1994); WHP Television, L.P., 10 FCC Rcd 4979, 4980 (1995). Given all of these considerations, station WCWB(TV)'s violation of Section 73.670 of the Commission's rules on eight occasions warrants a forfeiture in the above-specified amount of $14,000. This forfeiture amount is consistent with the forfeitures assessed in other cases. Most recently, in WPIX, Inc. (WPIX(TV)), DA-1097 (released June 4, 1999), a $14,000 forfeiture was assessed for 14 violations which occurred over a period of approximately four years. Of those violations, two were less than 30 seconds in duration, two were 30 seconds in duration, one was three minutes in duration, one was five and one-half minutes in duration and seven were program-length commercials. The violations in that case were attributed to human or technical error and inadvertence, as well as the inclusion of program-related commercial matter in a program supplied to the station by a television network. In another case, WGNX, Inc. (WGNX(TV)), 12 FCC Rcd 9866 (MMB 1997), a $14,000 forfeiture was assessed for 26 violations which occurred over a period of 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 conventional overages were attributed to human error or station employees' misunderstanding of the children's television commercial limit rules and policies, whereas the program-length commercials were attributed to the failure of program advertisers and/or distributors to indicate that commercial matter in a children's program was related to the program. When they are compared, several similarities may be drawn between WPIX, Inc., WGNX, Inc. and the instant case. Not only did the violations in each case occur over an extended period of at least two years, but all three licensees offered virtually the same reasons for their respective violations and asserted that they established policies and procedures to prevent future violations. By way of contrast, however, station WCWB(TV) reported fewer total overages than the stations in WPIX, Inc. and WGNX, Inc., the same number of program-length commercials as in WPIX, Inc., but one more program-length commercial than in WGNX, Inc. In this vein, we note that 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). Based on all of these considerations, we find the violations in the instant case, on balance, comparable to those in WPIX, Inc. and WGNX, Inc., and conclude that an appropriate forfeiture for station WCWB(TV)'s violations of the children's television commercial limits is $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 WPTT, Inc., for station WCWB(TV), Pittsburgh, Pennsylvania, File No. BRCT-990401KG, 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: David K. McGraw, Esq.