Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of Liability of ) ) OREGON TELEVISION, INC. ) File No. BRCT-930930KI ) Facility I.D. No. 50633 Licensee of Television Station ) KPTV(TV), Portland, Oregon ) ) for a Forfeiture ) MEMORANDUM OPINION AND ORDER Adopted: September 30, 1999 Released: October 7, 1999 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief, Mass Media Bureau, acting pursuant to authority delegated by Section 0.283 of the Commission's Rules, 47 C.F.R.  0.283, has before it for consideration: (i) a Notice of Apparent Liability in the amount of ten thousand dollars ($10,000) issued against Oregon Television, Inc. (Oregon TV), licensee of station KPTV(TV), Portland, Oregon; and (ii) Oregon TV's Statement responding to KPTV NAL filed on September 8, 1995 (Statement). The forfeiture was assessed for apparent repeated violations of Section 73.670 of the Commission's Rules, 47 C.F.R.  73.670, which limits the amount of commercial matter that may be aired during children's programming. 2. By way of background, in the Children's Television Act of 1990, Congress directed the Commission to adopt rules, inter alia, limiting the number of minutes 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. Pursuant to this statutory mandate, the Commission adopted Section 73.670 of the Rules 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 Commission also reaffirmed and clarified its long-standing policy 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"). The commercial limits became effective on January 1, 1992. 3. On September 30, 1993, Oregon TV filed the above-captioned application to renew its license for station KPTV(TV). In that application, Oregon TV certified that station KPTV(TV) had not complied with the limits on commercial matter in children's programming specified in Section 73.670 of the Commission's Rules, and submitted an exhibit, Exhibit 6, listing each segment of children's programming which exceeded the commercial limits. There, and in amendments to the renewal application filed on December 21, 1993, September 22, 1994, February 8, 1995, and April 3, 1995, Oregon TV indicated that between August 12, 1992, and March 7, 1995, station KPTV(TV) exceeded the limits on commercial matter in children's television programming on the following 12 occasions: (1) a 10-second overage on March 7, 1995; (2) a 15-second overage on September 9, 1992; (3) a 20-second overage on November 27, 1993; (4) a 25-second overage on March 20, 1993; (5) a 30-second overage on August 12, September 8 and 24, 1992; (5) a 40-second overage on November 30, 1992; (6) a two-minute overage on September 5, 1992; and (7) a program-length commercial in July 1994, and on December 28 and 29, 1994. In KPTV NAL, however, we excused the November 27, 1993, and March 7, 1995 overages because they occurred as a result of an unforeseen delay in the scheduling of a preceding program and an unforeseen computer error, respectively. 4. Notwithstanding the two excused overages, in KPTV NAL, we found that station KPTV(TV)'s record of exceeding the Commission's commercial limits during the last license term constituted a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), Oregon TV was advised of its apparent liability for forfeiture in the amount of $10,000. That amount was reached after consideration of the factors set forth in Section 503(b)(2) of the Communications Act, and, in particular, the five criteria consisting of: (1) the number of instances of commercial overages; (2) the length of each overage; (3) the period of time over which the overages occurred; (4) whether or not the licensee established an effective program to ensure compliance; and (5) the specific reasons that the licensee gave for the overages. Applying these criteria to the facts of station KPTV(TV)'s case, we stated that the total number of violations was significant and included three program-length commercials, the category of violations over which Congress expressed particular concern because young children often have difficulty distinguishing between commercials and programs. With respect to the program-length commercials in particular, we found that the July 1994 broadcast of a Chuck E. Cheese commercial during the same program containing an appearance by the Chuck E. Cheese restaurant characters, prizes and identifications, constituted a program-length commercial, despite the fact that the commercial advertisement and appearance by the characters may have been separated by 30 minutes of that same program. The December 28 and 29, 1994 violations, which involved the broadcast of advertisements for "Exosquad toys" during the "Exosquad" program, were clear instances of program-length commercials and, therefore, were also included in our assessment of the forfeiture amount. As for the conventional commercial overages, we distinguished the two excused violations from three other overages, which Oregon TV had attributed to schedule changes and program preemptions involving the rescheduling of children's programs during time periods normally occupied by general-audience programming. In doing so, we determined that, unlike the two excused violations which occurred as a result of unforeseeable circumstances, and in the absence of any facts to the contrary, the three overages at issue appeared to be routine, foreseeable schedule changes which did not excuse or mitigate the resulting violations. 5. Given the number and nature of station KPTV(TV)'s overages, we concluded that children had been subjected to commercial matter greatly in excess of the limits contemplated by Congress when it enacted the Children's Television Act of 1990. Additionally, we noted the Commission's statement made at the time it delayed the effective date of Section 73.670 of the Rules from October 1, 1991, until January 1, 1992, 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 . . . ." In this vein, we found that Oregon TV proffered no extraordinary transitional or other difficulties that would have prevented station KPTV(TV) from complying with the children's television commercial limits. We added that, though station KPTV(TV) implemented procedures to prevent future violations of the children's television commercial limitations, this did not relieve Oregon TV of liability for the violations which had occurred. 6. In responding to KPTV NAL, Oregon TV claims that we never articulated the standard against which station KPTV(TV)'s violations were measured, and speculates that this is because the prior standard had been overturned in court. According to Oregon TV, moreover, the cognizable overages in station KPTV's case is less than 10, and the imposition of a $10,000 forfeiture for "these few overages," without regard to circumstances, essentially transforms the children's television commercial limits into a strict liability offense in a manner inconsistent with the statutory mandate. Along this line, Oregon TV maintains that the proposed forfeiture "fails to address the substantial practical difficulties of independent stations like KPTV, which must monitor compliance throughout thousands of hours of children's programs over the course of the license term -- notwithstanding wholly unpredictable changes in its program schedule each week." 7. Oregon TV also challenges our consideration of six of the reported violations in determining the appropriate sanction in this case. First, Oregon TV agrees with our decision excusing two of the reported overages which resulted from unforeseen scheduling disruptions, but asserts that we likewise should have excused three other reported overages allegedly "in similar circumstances," referring to a 30-second spot for the Clackamas County Fair, a 15-second spot for Quaker Oats and a 30-second spot for Roberts Pioneer Auto. Oregon TV claims that an accident in scheduling caused those spots to air within children's programming, rather than in the subsequently scheduled general audience programming for which they were ordered, and that it is highly unlikely that they involved children's products. Therefore, Oregon TV concludes, these three overages were not willful violations of the children's television commercial limits. 8. Second, Oregon TV believes we erred in our findings regarding the three program-length commercials. With respect to the Chuck E. Cheese program-length commercial, Oregon TV argues that the circumstances involving that incident presented a question of first impression concerning the interpretation of the Commission's program-length commercial rule. Insisting that the Chuck E. Cheese incident is not a program-length commercial, Oregon TV refers to the arguments it made in its renewal application, which we considered and rejected in KPTV NAL. If its interpretation of the Chuck E. Cheese incident was reasonable, Oregon TV maintains in its Statement, than the due process requirements of fair notice mandate that it "`cannot be punished within the bounds of the Constitution for such interpretation.'" 9. Oregon TV further contends that we propose strict liability by relying on the "Exosquad" program-length commercials to assess a forfeiture without addressing the circumstances attendant to their occurrence. The circumstances to which Oregon TV refers were detailed in the February 8, 1995 amendment to the renewal application, which notified the Commission of the "Exosquad" two program-length commercial violations and explained that: (1) the broadcast of the commercials containing the "Exosquad" toys occurred despite both the station's screening, review and check system and an express traffic notation that those commercials not run during the "Exosquad" program; and (2) due to the rush of orders immediately prior to the Christmas holiday weekend, both the station's national sales representative firm and its sales department failed to screen this conflict out. Oregon TV asserts that its system of monitoring for program-length commercials has been effective, and that "this one error reflects only the difficulties of checking each and every commercial for conflict in content with the associated program." 10. Finally, Oregon TV seems to suggest that, when the preceding arguments are considered, only four violations remain and should be considered in determining an appropriate sanction against station KPTV(TV). To this end, Oregon TV maintains that the reported violations in this case were accorded disparate treatment vis-a-vis comparable violations, deemed de minimis, which were reported by one of its network-affiliated competitors in the market. Such disparate treatment is inappropriate, Oregon TV claims, particularly in light of "the extensive monitoring required by an independent station broadcasting more children's programs, and station KPTV(TV)'s showing that its monitoring program has been effective," though not perfect. For all of these reasons, Oregon TV requests that we vacate the forfeiture assessed against station KPTV(TV). 11. Discussion. As an initial matter, we disagree with Oregon TV's contention that the imposition of a forfeiture in this case transforms the children's television commercial limits into a strict liability offense. The fact that we excused two of station KPTV(TV)'s reported overages belies that argument. We note, moreover, that the two excused overages, having occurred as a result of an unforeseen delay in programming and an unforeseen computer problem, fell within the parameters of the Commission's policy that "an occasional emergency scheduling change" be taken into account in determining whether there were extenuating circumstances surrounding a violation of the children's television commercial limits. As we mentioned in KPTV NAL, the Commission affirmed this policy stating that, "where the facts demonstrate that a slight overage is caused by a last-minute, emergency scheduling change, we will consider such a lapse to be `de minimis.'" However, the Commission also said that foreseeable scheduling changes would not excuse or mitigate violations of the children's commercial limits. In this regard, we note that, in the renewal application and its Statement, Oregon TV made no assertion that any of the 10 remaining overages occurred as a result of an unforeseen or last-minute emergency scheduling change. Nor can we reach that conclusion based on the reasons given by Oregon TV for those ten violations. Oregon TV actually alleges that only three of the conventional overages (those involving the Clackamas County Fair, Quaker Oats and Roberts Pioneer Auto spots) should be excused because the accident in scheduling which caused those violations placed them in "similar circumstances" as the two excused violations. We note that, in its renewal application, Oregon TV had attributed these same overages to inadvertence. Nevertheless, based on the entire record before us, we find that Oregon TV has still failed to demonstrate, much less allege, that these three overages resulted from an unforeseen or last-minute emergency scheduling change. Therefore, we believe we acted properly in considering the overages caused by the Clackamas County Fair, Quaker Oats and Roberts Pioneer Auto spots to determine the appropriate sanction against station KPTV(TV) for its failure to comply with the children's television commercial limits. 12. We also believe our interpretation of the Commission's policy concerning program- length commercials vis-a-vis the Chuck E. Cheese incident was correct. As explained in KPTV NAL, the use of Chuck E. Cheese costumed characters, prize giveaways and restaurant identifications as a regular feature on the children's program in question created a clear and obvious association between the restaurant and the program, which was not eliminated simply because the program included other material not associated with the Chuck E. Cheese restaurant or characters. Thus, we stated, "where a paid advertisement for the Chuck E. Cheese restaurant is broadcast during a program on which the restaurant characters, prizes, and/or identifications are featured, it is clearly a case of a program associated with a product in which a commercial for that product is aired, i.e., a program length commercial." In fact, in its amendment reporting the Chuck E. Cheese incident, Oregon TV stated that station KPTV(TV) "had an established policy of not scheduling `Chuck-E-Cheese' commercials during any . . . programs in which the costumed characters appear," a policy which was inadvertently not followed one day in July, 1994. In view of that established policy at station KPTV(TV), we find untenable the argument now advanced by Oregon TV that it did not have fair notice of the Commission's interpretation of its policy on program-length commercials. It is unclear why station KPTV(TV) would have established such a policy in the absence of at least constructive notice that an incident, like the Chuck E. Cheese incident at issue here, would be inconsistent with the Commission's program-length commercial policy. 13. In addition, we continue to find no merit in Oregon TV's contention that the broadcast of the Chuck E. Cheese advertisement on the same program as an appearance by the Chuck E. Cheese characters, prizes and identifications does not constitute a program-length commercial because the advertisement and the appearance of the characters were separated by 30 minutes of that same program. The Commission made it clear in Children's Television Programming (Recon.) that "a commercial related to a children's program c[an] not air until after the start of a different, unrelated program." We see no reason to change that longstanding policy here, in the context of a proceeding involving the notice of apparent liability assessed against Oregon TV. 14. We also disagree with Oregon TV's assertion that we failed to consider the circumstances attendant to each of the reported overages, including the "Exosquad" program-length commercials. In KPTV NAL, we summarized the reasons Oregon TV had given for station KPTV(TV)'s violations, stating, for example, that the "Exosquad" program-length commercials occurred "despite pre- screening and logging procedures . . . as a result of human error." In our view, the circumstances recounted by Oregon TV for the "Exosquad" program-length commercials are tantamount to human error, and we do not believe that we erred in characterizing them as such. Furthermore, taking into account the specific circumstances involved with each violation, we determined that only two of them could be excused under Commission policy due to the unforeseen nature of their occurrence, and explained our reasons for that determination in KPTV NAL. We likewise provided detailed explanations as to why we were considering four other violations, the Chuck E. Cheese program- length commercial and three conventional overages caused by scheduling changes, in assessing the forfeiture amount. While we did not address the individual reasons for the remaining four conventional overages, we noted the Commission's expectation that, in delaying the effective date of the commercial limits, broadcasters would refine their compliance plans, and stated that Oregon TV had not asserted "any extraordinary transitional or other difficulties that would have prevented Station KPTV(TV) from complying with the children's television commercial limitations during the last license period." We add, here, that the explantions given for the four overages, as briefly described supra n. 14, essentially amount to human error and/or inadvertence with respect to the 25- second, 40-second and two minute overages, and a commercial make-good with respect to the 30- second overage. The Commission, however, has repeatedly rejected human error, inadvertence and commercial make-goods as bases for excusing violations of the children's television commercial limits, and Oregon TV has offered no reasons why we should accept those explanations to mitigate or excuse the violations in this case. Therefore, in the absence of any facts indicating unforeseen or last-minute emergency schedule changes, we believe it was appropriate to reject Oregon TV's reasons for those four overages. In addition, as we said in KPTV NAL, the corrective measures implemented by Oregon TV following the violations do not relieve it of liability for the violations which have occurred. 15. Lastly, we turn to Oregon TV's contention that we did not set out the standard by which we measured station KPTV(TV)'s violations. In this regard, we note that forfeitures assessed for violations of the children's television commercial limits are determined on a case-by-case basis using the criteria set forth in Section 503. Those criteria, and their application to the facts of this case were articulated in KPTV NAL. We also specifically recognized that the U.S. Court of Appeals for the District of Columbia had set aside Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993) (Policy Statement/Assessing Forfeitures), which the Commission had used since 1991 as a guideline for assessing forfeitures. In the interim, we stated, the criteria applied in this case and set forth supra  4, which had been developed and applied by the Commission in previous cases, were "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 the forfeiture amount in the instant case was determined in accordance with those criteria in conformity with the standards established in Section 503 of the Communications Act, Oregon TV is incorrect in insinuating that application of the criteria in the instant case was inappropriate or improper. 16. Additionally, though our de novo review revealed 10, not 11, to be the correct number of overages for consideration in determining the sanction in this case, see supra n.6, we continue to believe that the $10,000 forfeiture assessed in KPTV NAL is appropriate and consistent with the sanctions imposed in other similar cases. For example, in Act III Broadcasting License Corporation (WUTV(TV)), 10 FCC Rcd 4957 (MMB 1995) (Act III Broadcasting), a $10,000 forfeiture was assessed for eight violations of the children's television commercial limits, which occurred over a period of approximately ten months. Of those violations, three were 15 seconds in duration, one was 30 seconds in duration and four were program-length commercials. The licensee in Act III Broadcasting attributed the violations to inadvertence or human error, and asserted that station WUTV(TV) implemented policies to ensure future compliance with the commercial limits. In another case, Buffalo Management Enterprises Co., Inc. (WIVB-TV), 10 FCC Rcd 4959 (MMB 1995) (Buffalo Management), a $10,000 forfeiture was assessed for 11 violations of the children's television commercial limits, which occurred over a period of one year and two months. Of those violations, five were 30 seconds in duration, two were one minute in duration, one was one minute and 30 seconds in duration and three were program-length commercials. The licensee in that case maintained that the violations resulted from inadvertence or human error and that station WIVB- TV's internal procedures were reinforced to ensure compliance with the commercial limits. When compared, similarities may be drawn between all three cases, as nearly the same number and type of violations were reported by each licensee. In this regard, station KPTV(TV) reported one less overage than station WUTV(TV) in Act III Broadcasting, but only two more overages than station WIVB-TV in Buffalo Management. Station KPTV(TV) reported the same number of program- length commercials as station WUTV(TV), which was just one less than the number of program- length commercials reported by station WIVB-TV. Further, all three licensees offered virtually the same reasons for their respective violations and claimed to have established policies and procedures to prevent future violations. Based on these considerations, we find that the violations at issue here are comparable to those involved in Act III Broadcasting and Buffalo Management. Therefore, since Oregon TV has presented no other arguments compelling us to alter our decision in KPTV NAL, we affirm our determination that, on balance, the $10,000 forfeiture assessed against Oregon TV for station KPTV(TV)'s violations of the children's television commercial limits was appropriate. 17. Accordingly, IT IS ORDERED THAT Oregon Television, Inc.'s Statement responding to Oregon Television, Inc. (KPTV(TV)), 10 FCC Rcd 8766 (1995) IS DENIED. IT IS FURTHER ORDERED THAT, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), Oregon Television, Inc. FORFEIT to the United States the sum of ten thousand dollars ($10,000) for repeated violations of Section 73.670 of the Commission's Rules, 47 C.F.R. 73.670. Payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission. With regard to this forfeiture proceeding, Oregon Television, Inc. may take any of the actions set forth in Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, as summarized in the attachment to this Memorandum Opinion and Order. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau