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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. #20295 August 26, 1999 Released: August 27, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Peak Media of Pennsylvania LLC Licensee, WWCP-TV 1450 Scalp Avenue Johnstown, PA 15904 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of twelve thousand, five hundred dollars ($12,500) 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 March 31, 1999, you filed an application for renewal of license (FCC Form 303-S) for station WWCP-TV, Johnstown, Pennsylvania (File No. BRCT-990331KK). In response to Section III, Question 5 of that application, you certify that, during the previous license term, station WWCP-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 5 to that application, you indicate that between May 20, 1997, and July 8, 1998, station WWCP-TV violated the children's television commercial limits on seven occasions. All seven violations were program-length commercials. You attribute the overages to errors on the part of the advertising agency which provided the commercials to station WWCP-TV, and describe the measures taken following each incident in order to prevent future violations of the commercial limits. Station WWCP-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on seven occasions constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Peak Media of Pennsylvania LLC (Peak Media) is hereby advised of its apparent liability for forfeiture in the amount of twelve thousand, five hundred dollars ($12,500) 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 WWCP-TV exceeded the children's television commercial limits on seven 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. We note that 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). The violations occurred, moreover, over a period of approximately one year and one month, and were attributed to errors on the part of the advertising agency(ies) which provided the commercials at issue to station WWCP-TV. However, the Commission has consistently rejected a licensee's reliance on another party, such as a program distributor, for compliance with our children's television rules and policies, and has held that such reliance does not excuse or mitigate violations which have occurred. 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. Furthermore, while corrective actions may have been taken to prevent subsequent violations of the children's television rules and policies, this does not relieve Peak Media 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 WWCP-TV's violation of Section 73.670 of the Commission's rules on seven occasions warrants a forfeiture in the above-specified amount of $12,500. This forfeiture amount is consistent with the forfeitures assessed in other cases. For example, in Fox Television Stations, Inc. (WFXT(TV)), DA 99-1026 (released May 28, 1999) (Fox Television), a $12,500 forfeiture was assessed for seven violations of the children's television commercial limits, all program-length commercials, which occurred over a period of approximately three years and four months. All seven program-length commercials were attributed to inadvertence and human error, and the licensee asserted that it had implemented corrective measures to prevent future violations. Compared to station WFXT(TV) in Fox Television, station WWCP-TV reported the exact same number and type of violations. Further, the licensee in each case offered explanations for their respective overages which had previously been rejected by the Commission, and claimed to have established policies and procedures to prevent future violations of the children's television commercial limits. While the violations at issue in Fox Television occurred over a longer period of time than those in the instant case, 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 Fox Television. Therefore, we conclude that an appropriate, comparable forfeiture is in the amount of $12,500. 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 Peak Media of Pennsylvania LLC, for station WWCP-TV, Johnstown, Pennsylvania, File No. BRCT-990331KK, 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: Scott S. Patrick, Esq.