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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 February 14, 1997 Released: February 26, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Paramount Stations Group of Washington, Inc. Licensee, WDCA(TV) 5202 River Road Bethesda, MD 20816 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, 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. 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 3, 1996, you filed an application for renewal of license (FCC Form 303-S) for Station WDCA(TV), Washington, DC (File No. BRCT-960603KJ). In response to Section III, Question 4 of that application you indicate that during the previous license term WDCA(TV) failed to comply with the limitations on commercial matter in children's programming specified in Section 73.670 of the Commission's Rules. In Exhibit II to that application you describe the procedures established by WDCA(TV) to comply with the children's television commercial limitations. However, you also state that, despite those procedures, WDCA(TV) violated the children's television rules and policies on 19 occasions between July 8, 1992, and April 22, 1996. Of these 19 violations, one was three minutes in duration; one was 45 seconds in duration; six were 30 seconds in duration; one was 10 seconds in duration; and ten were characterized as "host selling". You attribute those violations to inadvertence, human error, inexperienced station employees, and/or unawareness on the part of station employees as to the content of commercial matter or the relationship between a program and the product(s) being advertised. With regard to two of the violations which you characterize as "host selling", you state that the commercial matter was inserted in the program by a "syndicator...who undertook a responsibility to ensure compliance," but that syndicator "did not screen the spots properly." In a letter dated September 19, 1996, you amended Exhibit II to WDCA(TV)'s renewal application, stating that on September 16, 1996, during the "Bananas in Pajamas" children's program, a commercial announcement for "Bananas in Pajamas" toy characters was "inadvertent[ly]" broadcast. As indicated above, the Commission defines a "program-length commercial" as "a program associated with a product, in which commercials for that product are aired"; and defines "host-selling" as "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, supra 6 FCC Rcd at 2118, 2127 n.147. Initially, we note that the incidents characterized in your renewal application as "host selling" appear to be program-length commercials. For instance, in Exhibit II you state that on October 12, 1992, "[h]ost selling occurred because of a mislabeled commercial." However, attached to Exhibit II is a copy of an unidentified station document which indicates that on that date, October 12, 1992, "commercials for Teenage Mutant Ninja Turtles" were aired during the "Teenage Mutant Ninja Turtles" program. This incident is clearly "a program associated with a product, in which commercials for that product are aired", a program-length commercial. Further, Exhibit II states that incidents of "host selling" occurred on November 28 and 30, 1994, without any description of the nature or content of the program or commercial matter, while memoranda and documents attached to Exhibit II indicate that, on those dates, a commercial announcement for a "Sonic hand held game" manufactured by "SEGA/Pocket Arcade" was broadcast during the "Sonic the Hedgehog" program. Some of these documents and memoranda clearly state that the advertisements were for a "Sonic product", and some correctly describe the incidents as "program-length commercials". The information provided regarding the remainder of the incidents which you characterize as "host selling" similarly indicate that those incidents were, in fact, program-length commercials. WDCA(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on 20 occasions constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Paramount Stations Group of Washington, 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 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. Although WDCA(TV) appears to have made some effort to comply with the Commission's children's television commercial limits, that effort apparently was not sufficient in light of the violations described in the station's renewal application. You have not proffered any extraordinary transitional or other difficulties that would have prevented Station WDCA(TV) from complying with the children's television commercial limitations during the last license period. Instead, you attribute the reported violations to inadvertence, human error, inexperienced station employees, unawareness on the part of station employees as to the content of commercial matter or the relationship between a program and the product(s) being advertised, and/or the failure of a program syndicator "who undertook a responsibility to ensure compliance". However, 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 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, eleven of the violations were program-length commercials. 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). Overages of this frequency 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. Children's Television Programming, supra 6 FCC Rcd at 2117-18. The fact that WDCA(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); 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., Paramount Stations Group of Kerrville, Inc. (KRRT(TV)), 8 FCC Rcd 7064 (1993) ($15,000 forfeiture for 28 overages, including eight program-length commercials and three incidents of host-selling). 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 Paramount Stations Group of Washington, Inc., for Station WDCA(TV), Washington, DC, File No. BRCT-960603KJ, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Edward N. Schor, Esq. Anne C. Lucey, Esq. $// PARAMOUNT STATNS GP OF WASH'TN, INC., WDCA(TV)(Washington, DC) DA 97-391 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$