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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 24, 1997 Released: January 30, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Christel Broadcasting, Inc. Licensee, WAWB(TV) 4120 East Parham Road Richmond, VA 23228 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of fifteen thousand dollars ($15,000) 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. Pursuant to this statutory mandate, 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 policies against "program-length commercials" ("a program associated with a product, in which commercials for that product are aired") and "host-selling" ("the use of program talent to deliver commercials", including "endorsements or selling by animated cartoon characters as well as 'live' program hosts"). Children's Television Programming, 6 FCC Rcd 2111, 2118, 2127 n.147, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). The commercial limitations became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). On June 7, 1996, you filed an application for renewal of license (FCC Form 303-S) for station WAWB(TV), Ashland, VA (File No. BRCT-960607KE). In Exhibit 3 to that application you indicate that during the previous license term WAWB(TV) failed to comply with the limitations on commercial matter in children's programming specified in Section 73.670 of the Commission's Rules. You state that 46 commercial overages, which occurred over a ten-week period between July 13, 1995, and September 27, 1995, were "due to the inexperience of a new traffic employee and her misunderstanding of the rules governing commercial limits in children's programming..."; and that, as a result, WAWB(TV)'s general manager reviewed the Commission's rules and policies on children's television with the employee and directed her to reread material on the children's television commercial limits. In addition, Exhibit 3 includes a copy of a memorandum from "Homenet" dated April 5, 1994, which indicates that on April 1, 1994, WAWB(TV) broadcast a program entitled "Superbook" which included a commercial announcement for "an Easter Superbook tape". Exhibit 3 also includes a copy of a memorandum from the WB Television Network dated October 26, 1995, which states that on October 6, 1995, the "Kids' WB! weekday program feed" contained a 30-second commercial announcement which included "a depiction of certain Warner Bros. characters"; that this incident constituted "a potential 'host selling/program length commercial' issue..."; and that the network had instituted "additional stringent procedures" to prevent recurrence. Two additional commercial overages were reported, but no explanation of the circumstances surrounding those overages was provided. WAWB(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on 50 occasions constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Christel Broadcasting, Inc., is hereby advised of its apparent liability for forfeiture in the amount of fifteen thousand dollars ($15,000) 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). 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...." 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 WAWB(TV) from complying with the children's television commercial limitations during the last license period. Indeed, you admit that 46 of the cited violations, which continued over a ten-week period, occurred solely because of a new employee's inexperience and misunderstanding 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., UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10986, 10987 & Note 1 (1995); 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). Further, the 50 occasions on which WAWB(TV) exceeded the children's television commercial limitations is a high number of violations. Of these 50 commercial overages, 24 were one minute in duration; one was 45 seconds in duration; 22 were 30 seconds in duration; one was 15 seconds in duration; and two were program-length commercial and/or host-selling violations. Overages of this nature and magnitude 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. With regard to the program-length commercial/host selling violations, 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). Similarly, the effect of host-selling "is to interweave the program and the commercial, exacerbating the difficulty children have distinguishing between the two." Action for Children's Television, 50 FCC 2d 1, 16 (1974). The fact that the program-length commercial/host- selling occurred in programs supplied by program distributors rather than programs produced by the station does not absolve WAWB(TV) of responsibility for the violations. The Commission has consistently held that a licensee's reliance on a program's source or producer for compliance with our children's television rules and policies will not excuse or mitigate violations which do occur. See, e.g., Max Television of Syracuse, L.P. (WSYT(TV)), 10 FCC Rcd 8905 (1995); Mt. Mansfield Television, Inc. (WCAX-TV), 10 FCC Rcd 8797 (1995); Boston Celtics Broadcasting Limited Partnership (WFXT(TV)), 10 FCC Rcd 6686 (1995); WRGB Broadcasting, Inc., MMB Admonition dated August 10, 1994. Finally, the fact that WAWB(TV) (and/or the WB Television Network) 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); 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 $15,000. Cf., Act III Broadcasting License Corporation (WUHF(TV)), 10 FCC Rcd 8799 (1995) ($15,000 forfeiture for 37 overages, including six program- length commercials); WWOR-TV, Inc., 10 FCC Rcd 8908 (1995) ($12,500 forfeiture for 39 overages, including one program-length commercial). 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 Christel Broadcasting, Inc., for Station WAWB(TV), Ashland, VA, File No. BRCT-960607KE, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Joseph E. Dunne III, Esq.