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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 January 16, 1997 Released: January 30, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Centennial Communications, Inc. Licensee, WGNT(TV) 1318 Spratley Street Portsmouth, VA 23704 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of fourteen thousand dollars ($14,000) 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, interalia, 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. 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 June 3, 1996, you filed an application for renewal of license (FCC Form 303-S) for station WGNT(TV), Portsmouth, VA (File No. BRCT-960603LE). In response to Section III, Question 4 of that application you state that during the previous license term WGNT(TV) failed to comply with the limitations on commercial matter in children's programming specified in Section 73.670 of the Commissions Rules. In Exhibit 6 to that application you indicate that between February 1, 1992, and June 23, 1995, WGNT(TV) violated the children's television commercial limits on 49 occasions. Of these commercial overages, nine were 15 seconds or less in duration; 28 were 30 seconds in duration; two were 45 seconds in duration; three were one minute in duration; four were one minute and 30 seconds in duration; one was two minutes in duration; one was two minutes and 30 seconds in duration; and one was two minutes and 40 seconds in duration. You assert that a majority of the violations occurred "soon after the limits were imposed, between 1992 and 1994", because the station employees responsible for maintaining the logs "did not realize that all commercial time should be counted in calculating compliance with the commercial limits", and therefore counted local commercial announcements sold by WGNT(TV), but did not count commercial matter included in the programs by program suppliers. You further state that "[s]everal additional accidental overages occurred after this initial problem was rectified" because of "sudden technical problems" or "last minute changes to the log made by personnel, such as salespeople, who were not versed in the Commission's rules concerning limits on commercial matter in children's programming." Finally, you state that in July, 1995, a new general manager took "drastic and affirmative steps" to prevent further violations, and no additional violations have occurred since. WGNT(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on 49 occasions constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Centennial Communications, Inc., is hereby advised of its apparent liability for forfeiture in the amount of fourteen thousand dollars ($14,000) 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. See Clear Channel Television, Inc. (KTTU(TV)), 10 FCC Rcd 3773 (1995); Northstar Television of Erie, Inc. (WSEE-TV), 10 FCC Rcd 3779 (1995). The 49 occasions on which WGNT(TV) exceeded the children's television commercial limitations is a high number of violations. Further, the violations occurred over an extended period of three years and four months, with violations occurring in every quarter of the first three years that the children's television commercial limits were in effect. Thus, it is clear that WGNT(TV) initially did not establish an effective program to monitor compliance with the children's television commercial limitations. When the Commission delayed the effective date of Section 73.670 of the Rules from October 1, 1991, until January 1, 1992, we 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...[and], in the context of any enforcement action for violations of the limits, we would be unlikely to be sympathetic to claims of transitional difficulties." Children's Television Programming, supra 6 FCC Rcd at 5530 n.10. You have not proffered any extraordinary transitional or other difficulties that would have prevented Station WGNT(TV) from complying with the children's television commercial limitations during the last license period. Indeed, you admit that an overwhelming majority of the cited violations occurred because of human error, inadvertence, misunderstanding and/or ignorance of the children's television commercial limits. The Commission has consistently and repeatedly rejected human error, inadvertence and/or misunderstanding as a basis for excusing violations of the children's television commercial limits. See, e.g., KBHK-TV, supra 10 FCC Rcd at 10987 & Note 1; Le Sea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977, 4978 (1995); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959, 4960 (1995); Gannett Massachusetts Broadcasting, Inc. (WLVI-TV), 9 FCC Rcd 1555 (1994); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994); Channel 12 of Beaumont, Inc. (KBMT-TV), 9 FCC Rcd 1825; WKBD, Inc., 8 FCC Rcd 5079 (1993). Ignorance on the part of station employees regarding the children's television commercial limits obviously is not an excuse, and, in fact, underscores the licensee's failure to establish an effective program for compliance. Finally, the fact that WGNT(TV) may have implemented policies to prevent subsequent violations of the Commission's children's television rules and policies does not relieve the licensee of liability for violations which have occurred. International Broadcasting Corp., 19 FCC 2d 793, 794 (1969); KBHK-TV, supra 10 FCC Rcd at 10988; KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (1994); Mountain States Broadcasting, Inc. (KMSB-TV), 9 FCC Rcd 2545, 2546 (1994); WHP Television, L.P., 10 FCC Rcd 4979, 4980 (1995). Consideration of all of these factors warrants a forfeiture in the above-specified amount of $14,000. Cf., Big Horn Communications, Inc. (KCTZ(TV)), 8 FCC Rcd 5081 (1993) ($15,000 forfeiture for 55 overages); Mountain States Broadcasting, Inc. (KMSB-TV), 9 FCC Rcd 2545 (1994) ($14,000 forfeiture for 45 overages). You 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. 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 Centennial Communications, Inc., for Station WGNT(TV), Portsmouth, VA, File No. BRCT-960603LE, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures