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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:"<"K#Heading 1Centered Headingcal Style 4G Y * Ã  Bullet ListIndented Bullet List *M0 Y XX` ` (#` Times New RomanTimes New Roman BoldTimes New Roman Italic"i~'^:DTddDDDd4D48ddddddddddDDd||||DXp||dp||ppL8LTdDddXdX8dd88X8ddddLL8dXXXLP8PlD4lTDDD4DDDDDDdDd8|d|d|d|d|dX|X|X|X|XD8D8D8D8dddddddddpX|ddddpXd|d|d|d|dXXlXx|X|X|X|XdddldldD8DdDDDddllXp8pHpDp@p8dtdddd|L|L|LdLdLdLllpHp8pTddddddplpLpLpLdpDddLpDpdx4ddC,CWddddddddddddddddddddddddddddddddddddddddNHxxHhdLdddddd8@d<@d<DDppdDDxddxHxxHkddDpd<"dxtldxxd2.K%Z'K%*Kp,"i~'^#)0<8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""2"2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""In the Children's Television Act of 1990, Pub. L. No. 101437, 104 Stat. 9961000, codified at  XP- x=47 U.S.C. Sections 303a, 303b and 394, Congress directed the Commission to adopt rules, inter  X;- xLalia, limiting the amount of commercial matter that television stations may air during children's  xprogramming, and to consider in its review of television license renewals the extent to which the  xlicensee has complied with such commercial limits. Accordingly, the Commission adopted  xzSection 73.670 of the Rules, 47 C.F.R.  73.670, which limits the amount of commercial matter  xwhich may be aired during children's programming to 10.5 minutes on weekends and 12 minutes  xLon weekdays. The Commission also stated that a program associated with a product, in which  x?commercials for that product are aired, would cause the entire program to be counted as  X"- x[commercial time (a "programlength commercial"). Children's Television Programming, 6 FCC  X#- x@Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). In addition, the  Xr$- x=Commission reiterated its longstanding policy against "hostselling," i.e, "the use of program  xitalent to deliver commercials," including "endorsements or selling by animated cartoon characters  XF&- xlas well as `live' program hosts." Id. at 2127 n.147, 6 FCC Rcd at 5097; see also Action for  X1'- xChildren's Television, 50 FCC 2d 1, 8, 1617 (1974). The commercial limitations became  X(- x{effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991)."),**qq'"Ԍ xLԙOn March 31, 1998, you filed an application for renewal of license (FCC Form 303S) for station  xKTXH(TV), Houston, Texas (File No. BRCT980331KT). In response to Section III, Question  x4 of that application, you certify that, during the previous license term, station KTXH(TV) failed  xto comply with the limitations on commercial matter in children's programming specified in  x=Section 73.670 of the Commission's Rules. In Exhibit 3 to the renewal application, you indicate  x=that between February 7, 1993, and August 22, 1995, station KTXH(TV) violated the children's  xNtelevision commercial limits on five occasions. You characterize those five violations as  xconsisting of one 30second overage, which occurred in a half hour "island" of children's  xprogramming, and four programlength commercials. As for the programlength commercials,  xyou state that on February 7 and 14, 1993, station KTXH(TV) aired a commercial for a "G.I.  xLJoe" product during the "G.I. Joe" program. The third programlength commercial occurred on  xDecember 8, 1993, when a commercial for the "Sega Genesis video game player, which fleetingly  xZdisplayed a small `Sonic the Hedgehog' character in the upper corners of the screen and a moving  x>game piece visually suggestive of, although not identical to, another `Sonic the Hedgehog'  xcharacter, was aired during the `Sonic the Hedgehog' program." The remaining programlength  x=commercial you describe occurred on March 14, 1994, when a Honey Nut Cheerios commercial  xthat included the "Sonic the Hedgehog" character aired during the "Sonic the Hedgehog" program.  xYou attribute all five overages to human error and assert that, following each one, measures were implemented to prevent future violations.  xzOn August 5, 1998, you filed an amendment to update and correct the information in station  xKTXH(TV)'s renewal application. First, to update information, you state that station KTXH(TV)  xviolated the children's television commercial limits on one occasion since its renewal application  x\was filed. Specifically, on July 8, 1998, a commercial for a Buena Vista Home video product,  xy"The Spirit of Mickey," which contained a still image of Donald Duck on the cover of the home  x/video, was mistakenly integrated by Buena Vista into its own "Mighty Ducks Quack Pack"  x\program. You attribute this violation to a disruption in the station's compliance procedures  x>resulting from the sudden resignation of station KTXH(TV)'s traffic manager, an event you  xcontend constitutes an "extenuating circumstance" which should be considered in determining  xLwhether to mitigate the violation. Second, to correct information, you state that, in Exhibit 3 to  xthe renewal application, you mischaracterized as a programlength commercial the March 14,  x1994 incident involving the broadcast of a Honey Nut Cheerios commercial during the "Sonic  xthe Hedgehog" program. That commercial, you assert, included a "Sonic the Hedgehog"  xcharacter, but promoted cereal and not a product related to the "Sonic the Hedgehog" program.  xKYou assert, therefore, that this incident should instead be classified as host selling and subject to an admonition.  xStation KTXH(TV)'s record during the last license term of exceeding the commercial limits on  xNchildren's television programming on five occasions, four of which were programlength  xcommercials, constitutes a repeated violation of Section 73.670 of the Commission's Rules.  xAccordingly, pursuant to Section 503(b) of the Communications Act, Paramount Stations Group  xof Houston, Inc. (Paramount) is hereby advised of its apparent liability for forfeiture in the  xamount of ten thousand dollars ($10,000) for its apparent repeated violation of Section 73.670  xof the Commission's Rules. The amount specified was reached after consideration of the factors  xset forth in Section 503(b)(2) of the Communications Act, and, in particular, the following" (,))qq&"  X- xcriteria: (1) the number of instances of commercial overages; (2) the length and nature of each  xsuch overage; (3) the period of time over which such overages occurred; (4) whether or not the  xlicensee established an effective program to ensure compliance; and (5) the specific reasons that  xthe licensee gives for the overages. These criteria are appropriate in analyzing violations of the  X- xcommercial limits during children's programming, since they take into account, inter alia, "the  xynature, circumstances, extent, and gravity of the violation, and, with respect to the violator, the  Xx-degree of culpability," as required under  503(b)(2)(D) of the Communications Act.a xJ {O- xԍ In United States Telephone Ass'n. v. FCC, 28 F3rd 1232 (D.C. Cir. 1994), the U.S. Court of Appeals for  {O- xthe District of Columbia set aside Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991),  {O - xirecon. denied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993), stating that the guidelines for assessing  xJforfeitures established therein must be subject to public comment to comply with the Administrative Procedure Act.  {O - xIn accordance with the court's decision, the Commission released Forfeiture Guidelines Notice of Proposed  {O - x,Rulemaking in CI Docket No. 956, 10 FCC Rcd 2945 (1995). After receiving and considering comments from the  {O - xpublic in that proceeding, the Commission adopted Forfeiture Guidelines Report and Order in CI Docket No. 956,   {Ou - x12 FCC Rcd 17087 (1997) (Forfeiture Guidelines). Forfeiture Guidelines became effective on October 14, 1997.  {O?- xZ62 Fed. Reg. 43474 (August 14, 1997). However, with regard to (i) all cases pending when Forfeiture Guidelines  xwas adopted, and (ii) all cases involving "violations arising from facts that occurred before the effective date of th[at]  xorder," forfeiture amounts are to be assessed "under the casebycase approach in effect when the violation occurred,"  {O- xin conformity with the standards set out in Section 503 of the Communications Act. Id. at 171089. Also under  {Oc- xxthe Forfeiture Guidelines, the Commission retained its "discretion . . . to issue forfeitures on a casebycase basis,  {O--under [its] general forfeiture authority contained in Section 503 of the Act. Id. at 17099. a  xAs discussed above, station KTXH(TV) exceeded the children's television commercial limits on  xfive occasions. Overages of this number and nature mean that children have been subjected to  xcommercial matter greatly in excess of the limits contemplated by Congress when it enacted the  X - xLChildren's Television Act of 1990. Children's Television Programming, 6 FCC Rcd at 211718.  xIn this regard, four of the overages were programlength commercials. Congress was particularly  xkconcerned about programlength commercials because young children often have difficulty  xdistinguishing between commercials and programs. S. Rep. No. 227, 101st Cong., 1st Sess. 24  x(1989). Given this Congressional concern, the Commission made it clear that programlength  X- xcommercials, by their very nature, are extremely serious violations of the children's television  xcommercial limits, stating that the programlength commercial policy "directly addresses a  xxfundamental regulatory concern, that children who have difficulty enough distinguishing program  xcontent from unrelated commercial matter, not be all the more confused by a show that  X8- xinterweaves program content and commercial matter." Children's Television Programming, 6  xFCC Rcd at 2118. Accordingly, the Commission has routinely assessed higher forfeitures for  X - x>programlength commercials than for a greater number of conventional overages. See, e.g.,  X-Channel 39 Licensee, Inc. (WDZL(TV)), 12 FCC Rcd 14012, 14015 n.3. (1997).  xThe violations occurred, moreover, over an extended period of approximately five years and five  xmonths. When it delayed the effective date of Section 73.670 of the Rules until January 1, 1992,  xxthe Commission stated that "giving the additional time to broadcasters and cable operators before  xcompliance with the commercial limits is required will have the effect of enabling broadcasters  Xo- x>and cable operators to hone their plans to ensure compliance . . . . " Children's Television  XZ- xProgramming, 6 FCC Rcd at 5530 n.10. Although Paramount appears to have made an effort"Z ,))qq|"  xto comply with the Commission's children's television commercial limits, that effort apparently  xwas not sufficient in light of the violations described in the station's renewal application. The  xonly reason Paramount cites for four of the commercial overages, human error, does not mitigate  xkor excuse such violations. In fact, the Commission has repeatedly rejected human error and  X- xinadvertence as a basis for excusing violations of the children's television commercial limits.   X- xSee, e.g., LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (MMB 1995) (LeSea  Xx- xBroadcasting); Buffalo Management Enterprises Corp. (WIVBTV), 10 FCC Rcd 4959 (MMB  Xc- xy1995); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (MMB 1995); Ramar  XN- xCommunications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (MMB 1994). As for Paramount's  xcontention that the sudden resignation of station KTXH(TV)'s traffic manager constitutes an  x["extenuating circumstance" which should have a mitigating effect on the July 8, 1998 program xKlength commercial, we disagree. Personnel changes at a station, including departures, even when  x-sudden, are foreseeable events which a licensee should account for in creating and implementing  xa plan to ensure compliance with the children's television commercial limits. The fact that  xParamount failed to do so, resulting in the July 8, 1998 violation, reveals a shortcoming in its  xcompliance program which does not present an "extenuating circumstance" warranting a reduction  x.in the assessed forfeiture amount. Furthermore, while corrective actions may have been taken  xto prevent subsequent violations of the children's television rules and policies, this does not  Xj- xrelieve Paramount of liability for the violations which have occurred. See, e.g., WHP Television,  XU- xL.P., 10 FCC Rcd 4979, 4980 (MMB 1995); Mountain States Broadcasting, Inc. (KMSBTV), 9  X@- x>FCC Rcd 2545, 2546 (MMB 1994); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715,  X+- x21716 (MMB 1994); KEVN, Inc., 8 FCC Rcd 5077, 5078 (MMB 1993); International  X-Broadcasting Corp., 19 FCC 2d 793, 794 (1969).  X- x0 Given all of these considerations, station KTXH(TV)'s violation of Section 73.670 of the  xCommission's rules on five occasions, four of which were programlength commercials, warrants  X- xa forfeiture in the abovespecified amount of $10,000. In a recent case, Ace TV, Inc.  X- x(WACY(TV)), DA 981390 (re. July 15, 1998) (Ace TV), we assessed a $10,000 forfeiture for five  x-violations of the children's television commercial limits, consisting of one 30second overage and  xfour programlength commercials. Those violations occurred over a period of approximately one  x.year and two months, and were attributed to either a commercial make good or to the insertion  x/of programrelated commercial matter in programming supplied to the station by a program  X6- x{syndicator. In another similar case, WCGV Licensee, Inc. (WCGVTV), 13 FCC Rcd 8624  X!- xk(MMB 1998) (WCGV Licensee), we likewise assessed a $10,000 forfeiture for five violations,  X - xconsisting of one 30second overage and four programlength commercials. See also WTTE  X- x Channel 28 Licensee, Inc. (WTTE(TV)), 12 FCC Rcd 18056 (MMB 1997). The violations in  X - xWCGV Licensee, Inc. occurred over a period of two years and four months, and were attributed  X!- xto inadvertence and human error.  Compared to Ace TV and WCGV Licensee, Inc., station  xzKTXH(TV) had the same number and type of violations. In addition, the licensee in each of  xkthese three cases cited reasons for its violations which had previously been rejected by the  xCommission. Though station KTXH(TV)'s violations occurred over a longer period of time than  Xs%- xthe violations involved in Ace TV and WCGV Licensee, Inc., we note that the period of time over  xxwhich the overages occurred is only one of the five criteria we consider in assessing the forfeiture  xamount. For all of these reasons, we find the violations here, on balance, to be comparable to"G',))qq%"  X- xjthose in Ace TV and WCGV Licensee, Inc. Therefore, we conclude that a comparable forfeiture is appropriate.  xlAs for the March 14, 1994 broadcast of a commercial for Honey Nut Cheerios featuring a  x[character from "Sonic the Hedgehog" during the "Sonic the Hedgehog" program, it appears to  X- xhave violated the Commission's policy concerning hostselling, see supra  2, which involves  Xz- xLprogramrelated characters promoting any product during the character(s)' program. See, e.g.,  Xe- x[PonceNicasio Broadcasting (KCMY(TV)), 10 FCC Rcd 6728 (1995). Hostselling is a practice  xthat the Commission has denounced because it takes unfair advantage of the trust that children  X9- xplace in program characters. Children's Television Recon, 6 FCC Rcd at 5097; Action for  X$ - xChildren's Television, 50 FCC 2d at 1617. In this regard, the Commission has stated that "host x.selling encompasses any character endorsement not just direct vocal appeals that has the  xeffect of confusing a child viewer from distinguishing between program and nonprogram  X - xmaterial." WHYY, Inc. (WHYYTV), 7 FCC Rcd 7123 (1992). For example, the Commission has  xydetermined that "advertisements featuring the same type of animation that is regularly featured  X - xin the accompanying program constitutes hostselling." Id. Based on the information before us,  xwe believe the commercial broadcast on March 14, 1994, violated our hostselling policy. We therefore ADMONISH you to avoid such situations in the future.  x.With respect to the forfeiture assessed here, you are afforded a period of thirty (30) days from  xthe date of this letter "to show, in writing, why a forfeiture penalty should not be imposed or  xshould be reduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be  ximposed or should be reduced shall include a detailed factual statement and such documentation  x0and affidavits as may be pertinent." Section 1.80(f)(3) of the Commission's Rules, 47  xC.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.  xNotwithstanding the substantial nature of the violations described here and the severity with  xwhich we regard them, we find you qualified to remain a Commission licensee and conclude that  xgrant of your application would serve the public interest, convenience and necessity. Therefore,  xthe license renewal application of Paramount Stations Group of Houston, Inc., for station KTXH(TV), Houston, Texas, File No. BRCT980331KT, IS HEREBY GRANTED.  X0- x` `  hh@FEDERAL COMMUNICATIONS COMMISSION  Z%I  x` `  hh@Roy J. Stewart x` `  hh@Chief, Mass Media Bureau Enclosures