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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 Released: February 23, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Springfield Broadcasting Partners Licensee, WRSP-TV 3003 Old Rochester Road Springfield, IL 62703 Urbana Champaign Broadcasting Partners Licensee, WCCU(TV) 712 Killarney Street Urbana, IL 61801 Dear Licensees: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of one hundred ten thousand dollars ($110,000), pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), 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 per hour on weekends and 12 minutes per hour 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 August 1, 1997, Springfield Broadcasting Partners (Springfield BP) and Urbana Champaign Broadcasting Partners (Urbana BP) filed license renewal applications (FCC Forms 303-S) for stations WRSP-TV, Springfield, Illinois (File No. BRCT-970801LD), and WCCU(TV), Urbana- Champaign, Illinois (File No. BRCT-970801KJ). In response to Section III, Question 4 of those applications, they certify that, during the previous license term, stations WRSP-TV and WCCU(TV) failed to comply with the limits on commercial matter in children's programming specified in Section 73.670 of the Commissions Rules. In Exhibit 4 to the renewal applications, Springfield BP and Urbana BP indicate that between August 29, 1992, and March 23, 1996, stations WRSP-TV and WCCU(TV) violated the children's television commercial limits on 304 occasions. Of these commercial overages, 18 were less than 30 seconds in duration, 116 were 30 seconds or longer but less than one minute in duration, 123 were one minute or longer but less than two minutes in duration, 19 were two minutes or longer but less than three minutes in duration, five were three minutes or longer in duration and 23 were program-length commercials. Station WCCU(TV), having rebroadcast the programming of station WRSP-TV, refers to that station's Exhibit 4 for a discussion of the children's television violations. There, Springfield BP maintains that all but three of the 304 overages occurred on or before October 28, 1994, almost two years and 11 months after the effective date of the children's television commercial limits. During that two year and 11-month period, Springfield BP asserts, "the Station [WRSP-TV] was still familiarizing itself with the new children's television requirements and experimenting with procedures to ensure compliance with the rules." Springfield BP admits that compliance measures adopted by station WRSP-TV were unsuccessful, as employees failed to understand the new rules and inserted an excess of commercial matter into children's programming, and attributes the "bulk" of the overages to attempts by station WRSP-TV's staff to "make good" commercial advertisements that did not air properly. Springfield BP maintains that, in October 1994, it discovered the extent of station WRSP- TV's misunderstanding concerning the children's television commercial limits, and thereafter instituted "rigorous" internal procedures to ensure compliance with those limits. According to Springfield BP, those procedures, which involve a "double-checking" process to verify the amount of commercial matter to be aired during children's programming, have been very effective. In support, Springfield BP states that only three overages occurred after October 28, 1994, and no overages have occurred since March 23, 1996. Station WRSP-TV's and station WCCU(TV)'s record of exceeding the Commission's commercial limits on children's television programming on 304 occasions during the last license term constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Springfield BP and Urbana BP are hereby advised of their apparent liability for forfeiture in the amount of one hundred ten thousand dollars ($110,000) for their apparent repeated violation of Section 73.670 of the Commission's Rules. The amount specified was reached after consideration of 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. The 304 instances in which stations WRSP-TV and WCCU(TV) exceeded the children's television commercial limits represents an extremely high number of violations. In addition, 147 of the overages were one minute or more in length, and 23 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, supra, 6 FCC Rcd at 2117-18. We note, here, 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, supra, 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. Further, the violations occurred over an extended period of approximately three years and seven months. When it delayed the effective date of Section 73.670 of the Rules from October 1, 1991, 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. Based on the information contained in the renewal applications for stations WRSP-TV and WCCU(TV), it is apparent that the licensees initially failed to establish an effective program to ensure compliance with the commercial limits, and failed to notice or rectify their deficient programs for at least two years and 11 months, the time period during which the large majority of the violations occurred. In addition, the only reasons cited for the violations, human error and misunderstanding of the Commission's Rules, do not mitigate or excuse them. In fact, the Commission has repeatedly rejected human error, inadvertence and/or misunderstanding of the rules as a basis 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). Moreover, while the licensees may have belatedly implemented policies and procedures to prevent subsequent violations of the Commission's children's television rules, that does not relieve them of liability for the very high number of violations which have occurred. See, e.g., WHP Television, L.P., 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., 8 FCC Rcd 5077, 5078 (MMB 1993); International Broadcasting Corp., 19 FCC 2d 793, 794 (1969). Given all of these considerations, the violation of Section 73.670 of the Commission's Rules by stations WRSP-TV and WCCU(TV) on 304 occasions, 23 of which were program-length commercials, warrants a forfeiture in the above-specified amount of $110,000. The number and duration of the overages at issue here are among the most egregious violations the Commission has considered. For example, in Northstar Television of Erie, Inc. (WSEE-TV), 10 FCC Rcd 3779 (1995) (Northstar), the licensee exceeded the commercial limits on 204 occasions, including 123 one minute or longer overages and 33 program-length commercials, over a period of one year and nine months. The forfeiture assessed in that case was $100,000. In another case, Jasas Corporation (WBDC-TV), 12 FCC Rcd 7815 (1997) (Jasas), the licensee was assessed a $115,000 forfeiture for 450 violations, including 235 one minute or longer overages and two program-length commercials, which occurred over a period of two years and four months. Compared to Northstar, WRSP-TV and WCCU(TV) had fewer program-length commercials, but a substantially larger number of overall overages and a greater number of overages that exceeded one minute in length. As compared to Jasas, WRSP-TV and WCCU(TV) had far more program-length commercials, but a smaller number of total overages. Also in comparison to Northstar and Jasas, the violations at issue here occurred over a longer period of time, frequently and routinely from August 23, 1992, to October 28, 1994, and on three occasions thereafter up to and including March 23, 1996. Given the total number of overages, the length and repeated nature of such overages and the period of time over which they occurred, and when viewed in light of Northstar and Jasas, WRSP-TV and WCCU(TV)'s misconduct likewise warrants a substantial forfeiture amount. Therefore, we conclude that an appropriate, comparable forfeiture is in the amount of $110,000. We believe, too, that, because of the breadth of the violations in this case and the substantial failure of the licensees to establish effective monitoring and compliance procedures for several years after the limits became effective in 1992, an additional remedial measure is warranted in order to ensure that stations WRSP-TV and WCCU(TV) comply with our limitations on commercial matter during children's programming in the future. Accordingly, we will impose reporting conditions. The Commission has previously imposed reporting conditions, in addition to monetary forfeitures, in similar cases involving egregious violations of the children's television commercial limits. For instance, in Stainless Broadcasting Co. (WICZ-TV), 10 FCC Rcd 9961 (1995), a $110,000 forfeiture was assessed and reporting conditions were imposed notwithstanding the fact that the licensee established policies and procedures which prevented subsequent violations immediately after it discovered that it had committed 376 violations over a period of 22 months. Likewise, in Jasas and Northstar, the Commission imposed reporting conditions, along with the monetary forfeitures discussed above, for the respective 450 and 204 violations involved in those cases, even though the licensees implemented policies and procedures to prevent future violations of the children's television commercial limits. Moreover, in reaching its decision to impose reporting conditions in all three cases, the Commission emphasized the failure of the licensees to initially establish policies and procedures to preclude commercial overages during children's television programming. The Commission in Northstar additionally noted the licensee's failure to take effective action when it first identified a problem with compliance at its station, as the commercial violations continued for another 15 months. Here, stations WRSP-TV and WCCU(TV) also instituted "rigorous" procedures to ensure compliance with the children's television commercial limits after discovering that they had committed 301 violations over a period of 2 years and 11 months (35 months). Furthermore, the stations experienced three additional overages following implementation of those new procedures, with the last reported overage having occurred on March 23, 1996, nearly five months after the new procedures were established. For these reasons, during their next license term, stations WRSP-TV and WCCU(TV) will be required to file a mid-license term report to the Commission on whether they have complied with our limits on commercial matter during children's programming. Any noncompliance will have to be described in detail. Notwithstanding the substantial nature of the violations at issue here, and the severity with which we regard them, we do not believe that these violations constitute an impediment to grant of the applications for renewal of licenses for stations WRSP-TV and WCCU(TV). There is no suggestion that the licensees have acted in bad faith, and we do not believe the violations reflect a deliberate disregard for Commission requirements. Rather, these violations reflect the licensees' failure to confirm or to take prompt measures to ensure compliance with the children's television commercial limitations. Therefore, we find Springfield BP and Urbana BP qualified to remain Commission licensees, and conclude that grant of the instant applications would serve the public interest, convenience and necessity. Accordingly, the license renewal applications of Springfield Broadcasting Partners and Urbana Champaign Broadcasting Partners for stations WRSP-TV, Springfield, Illinois (File No. BRCT- 970801LD), and WCCU(TV), Urbana-Champaign, Illinois (File No. BRCT-970801KJ), respectively, are hereby GRANTED, subject to the condition that: Stations WRSP-TV and WCCU(TV) shall submit to the Commission an original and one copy of the following information within thirty (30) days after the end of their mid-license term which is December 1, 2001: (a) A statement certifying whether the licensees have complied with the limits on commercial matter as set forth in 47 C.F.R.  73.670. (b) A list of each segment of programming, 5 minutes or more in duration, designed for children 12 years old and under and broadcast during the license period which contained commercial matter in excess of the limits set forth in 47 C.F.R.  73.670. For each such programming segment so listed, indicate the length of the segment, the amount of the commercial matter contained therein, and an explanation of why the limits were exceeded. With respect to this forfeiture proceeding, Springfield BP and Urbana BP are afforded a period of thirty (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. This letter was adopted by the Commission on February 18, 1999. BY DIRECTION OF THE COMMISSION Magalie Roman Salas Secretary Enclosure cc: Marcus W. Trathen, Esq.