Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of Liability of ) ) SPRINGFIELD BROADCASTING ) PARTNERS ) ) Licensee of Television Station ) WRSP-TV, Springfield, Illinois ) Facility I.D. No. 62009 ) ) and ) ) URBANA CHAMPAIGN BROADCASTING ) PARTNERS ) ) Licensee of Television Station ) WCCU(TV), Urbana-Champaign, Illinois) Facility I.D. No. 69544 ) ) for Forfeitures ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: October 27, 1999 Released: November 2, 1999 By the Commission: 1. The Commission has before it for consideration the following documents: (1) a Notice of Apparent Liability for forfeiture in the amount of one hundred ten thousand dollars ($110,000) issued against Springfield Broadcasting Partners (Springfield BP), licensee of station WRSP-TV, Springfield, Illinois, and Urbana Champaign Broadcasting Partners (Urbana BP), licensee of station WCCU(TV), Urbana-Champaign, Illinois, for their stations' apparent repeated violation 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; and (2) the Response to Notice of Apparent Liability (Response) filed by Springfield BP and Urbana BP (collectively, Springfield- Urbana) on March 25, 1999, requesting reduction of the forfeiture. 2. In Springfield/Urbana NAL, we found that station WRSP-TV's and station WCCU(TV)'s records of exceeding the Commission's commercial limits on 304 occasions 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), Springfield-Urbana were advised of their apparent liability for forfeiture in the amount of $110,000. 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 WRSP-TV's and station WCCU(TV)'s case, we stated that not only was the total number of violations extremely high, but that 147 of the commercial overages were one minute or longer in duration and 23 were program-length commercials. Given this number and the nature of the stations' 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. In addition, we rejected the licensees reasons for the violations - human error and misunderstanding of the Commission's rules - as bases for excusing their stations' violations of the commercial limits. We further stated that, though they implemented a plan to prevent future violations of the children's television commercial limitations, this did not relieve Springfield-Urbana of liability for the violations which had occurred. 3. In their Response, Springfield-Urbana contend that the fine imposed on stations WRSP- TV and WCCU(TV) is disproportionate to fines that the Commission has imposed on other licensees for substantially similar conduct. In support of this assertion, they point to Clear Channel Television, Inc. (KTTU(TV)), 10 FCC Rcd 3773 (1995), where the Commission assessed a $125,000 forfeiture for 581 violations of the children's television commercial limits, including 375 overages one minute or longer in duration and 73 program-length commercials. Springfield-Urbana state that their stations had half as many violations as station KTTU(TV) in Clear Channel, but that the fine imposed on stations WRSP-TV and WCCU(TV) was only $15,000 less. This precedent, they insist, demonstrates that the Commission has treated stations WRSP-TV and WCCU(TV) more harshly than other stations, and that such disparate treatment has repeatedly been declared illegal. 4. Springfield-Urbana also believe that, in assessing the forfeiture amount, the Commission failed to give appropriate weight to the fact that 301 of the 304 listed overages occurred "within 34 months of the new children's programming limits being enacted, a period of time during which broadcasters were still familiarizing themselves with the new rules and learning how to comply." That failure to consider the timing of the overages as a mitigating factor, they assert, contradicts Commission precedent and renders imposition of a fine in this case an arbitrary and capricious action. In support, they maintain that the Commission has previously granted, without the imposition of any monetary forfeiture, the license renewals of other stations reporting overages which occurred soon after the children's programming rules were enacted, citing to Letter to Idaho Independent Television, Inc. (KTRV(TV)) from Barbara A. Kreisman, Chief, Video Services Division, Mass Media Bureau, Federal Communications Commission (March 28, 1994) (Idaho Television). According to Springfield-Urbana, moreover, in declining to fine those broadcasters, the Commission "recognized that a period of trial and error is to be expected when a new rule is promulgated and that, therefore, it should be lenient regarding early violations of the children's programming limits." Springfield-Urbana further argue that, as similarly-situated parties, they should be granted leniency for the 301 overages reported by stations WRSP-TV and WCCU(TV) which occurred during "a trial and error period," and that if one overage can be excused because a broadcaster is still learning to comply with a new rule, then all broadcasters learning to comply should be similarly excused, regardless of the number of overages. For these reasons, Springfield-Urbana BP conclude that the fine assessed against their stations is erroneous and should be reduced. DISCUSSION 5. We disagree with Springfield-Urbana that they have been treated disparately and that the forfeiture ordered should be reduced. Preliminarily, Springfield-Urbana cite no cases or authority in support of their argument that the Commission has previously excused violations based on "a trial and error" period vis-a-vis Section 73.670 of the Rules, and their reliance on Idaho Television is misplaced. In that case, an admonition was determined to be the appropriate sanction based on the number and type of violations (six total overages including one program-length commercial) of the children's television commercial limits reported in station KTRV(TV)'s renewal application, and not on the timing of those violations. In fact, nowhere in Idaho Television does the Commission state that it forewent imposition of a forfeiture because station KTRV(TV)'s overages occurred "soon" after the children's commercial limits became effective. See also infra n.4. Rather, the Commission has consistently considered all violations of the children's television commercial limits occurring on and after January 1, 1992, the effective date of Section 73.670, to determine the appropriate sanction in a given case. See, e.g., Jefferson-Pilot Communications Company (WBTV(TV)), 12 FCC Rcd 2526 (1997) (79 overages occurring between January 18, 1992, and August 19, 1995, considered in assessing $20,000 forfeiture); UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10987 (1995) (218 overages occurring between January 2, 1992, and May 7, 1993, considered in assessing $40,000 forfeiture); Scripps Howard Broadcasting Co. (KNXV-TV), 9 FCC Rcd 2547 (1994) (five overages occurring in January and February 1992, considered in assessing $10,000 forfeiture); Paramount Stations of Houston, Inc. (KTXH-TV), 9 FCC Rcd 140 (1993) (132 overages occurring in 1992 considered in assessing $80,000 forfeiture). We are not persuaded by Springfield- Urbana's argument that any overages occurring during "a trial and error period" after Section 73.670's effective date should be excused because broadcasters were still learning to comply with that new rule. In fact, licensees were afforded an additional period of time in which to familiarize themselves with Section 73.670 and hone their compliance plans when we delayed the effective date of that rule from October 1, 1991, to January 1, 1992. See Children's Television Programming, 6 FCC Rcd 5529, 5530 n.10 (1991). Furthermore, at that time, we noted that, in the context of enforcement action for violations of the limits, the Commission would be unlikely to be sympathetic to claims of transitional difficulties. For these reasons, we reject the nearly three-year "trial and error period" suggested by Springfield-Urbana as a basis for excusing the 301 overages reported by stations WRSP-TV and WCCU(TV), which occurred regularly beginning August 29, 1992, through and including October 28, 1994. We conclude, moreover, that our consideration of the 301 overages reported by Springfield-Urbana was consistent with Commission practice and policy. 6. Next, in turning to the argument that the Commission accorded them disparate treatment when assessing the $110,000 forfeiture against stations WRSP-TV and WCCU(TV) as compared to the $125,000 forfeiture assessed against station KTTU(TV) in Clear Channel, we reject Springfield-Urbana's attempt to make a violation-by-violation comparison with the Clear Channel case. The Communications Act does not require the Commission to attribute monetary liability to each separate violation. See Southern California Broadcasting Company, 6 FCC Rcd 4387, 4388 (1991); Niagara Frontier Broadcasting Corp., 51 FCC 2d 525 (1975), aff'd, 36 RR2d 1584 (1976), recon. granted in part, 38 RR2d 1004 (1976). Further, the Commission has a great deal of discretion under Section 503 of the Communications Act in determining forfeiture amounts. Triple X Broadcasting Co., Inc., 46 RR2d 788, 789 (B/C Cur. 1979), citing Brennan Broadcasting Co., 25 FCC 2d 400, 405 (1970). Such discretionary authority holds particular relevance given the different factors involved in compliance with the children's television commercial limits (e.g., number, type and duration of overages, period of time over which the violations occurred, extent of compliance program), making it impossible to devise a precise formula to calculate forfeiture amounts. The Commission, moreover, "is not bound to deal with all cases at all times as it has dealt with some that appear comparable." Triple X Broadcasting, supra, citing Continental Broadcasting Co. v. FCC, 439 F.2d 580, 583 (D.C. Cir. 1971), cert. denied, 403 U.S. 905 (1971). In any event, the monetary forfeiture assessed in Springfield/Urbana NAL is generally consistent with forfeitures imposed in roughly similar cases, such as Northstar Television of Erie, Inc. (WSEE-TV), 10 FCC Rcd 3779 (1995) (Northstar) and Jasas Corporation (WBDC-TV), 12 FCC Rcd 7815 (1997) (Jasas). As discussed in Springfield/Urbana NAL, we imposed a $100,000 forfeiture in Northstar for 204 violations, including 123 one minute or longer overages and 33 program-length commercials, which occurred over a period of one year and nine months, and a $115,000 forfeiture in Jasas 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. We also compared Northstar and Jasas to the instant case, finding that the misconduct of stations WRSP-TV and WCCU(TV) likewise warranted a substantial forfeiture amount given the total number of overages, the length and repeated nature of such overages and the period of time over which they occurred, and concluding that an appropriate, comparable forfeiture was in the amount of $110,000. In view of the foregoing considerations, we continue to believe that a forfeiture in the amount of $110,000 is not only appropriate for the violations reported by stations WRSP-TV and WCCU(TV), but also consistent with Commission policy. Given the totality of the facts and circumstances in this case, we see no reason to disturb our decision. 7. Accordingly, IT IS ORDERED THAT the request of Springfield Broadcasting Partners and Urbana Champaign Broadcasting Partners for reduction of the forfeiture assessed in Springfield Broadcasting Partners (WRSP-TV) and Urbana Champaign Broadcasting Partners (WCCU(TV)), 14 FCC Rcd 3683 (1999) IS DENIED. 8. IT IS FURTHER ORDERED THAT, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), Springfield Broadcasting Partners, licensee of station WRSP-TV, Springfield, Illinois, and Urbana Champaign Broadcasting Partners, licensee of station WCCU(TV), Urbana-Champaign, Illinois, FORFEIT to the United States the sum of one hundred ten thousand dollars ($110,000) for willful and 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 at the address indicated in the attachment to this Memorandum Opinion and Order and Forfeiture Order. 9. IT IS FURTHER ORDERED That the Mass Media Bureau send by Certified Mail -Return Receipt Requested - copies of the Memorandum Opinion and Order and Forfeiture Order to Springfield Broadcasting Partners and Urbana Champaign Broadcasting Partners. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary