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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 18, 1997 Released: February 26, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED WHNS License Partnership Licensee, WHNS(TV) 21 Interstate Court Greenville, SC 29615 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of ten thousand dollars ($10,000) 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 number of minutes 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. Therefore, 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 policy that the entire duration of a program associated with a product, in which commercials for that product are aired (a "program-length commercial") would be counted as commercial matter for the purpose of the children's television commercial limits. Children's Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). The commercial limits became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). On July 25, 1996, you filed an application for renewal of license (FCC Form 303-S) for station WHNS(TV), Ashville, NC (BRCT-960725KL). In response to Section III, Question 4 of that application you state that during the previous license term WHNS(TV) failed to comply with the limits on commercial matter in children's programming specified in Section 73.670 of the Commissions Rules. In Exhibit 3 to that application you indicate that between January 30, 1992, and April 19, 1996, WHNS(TV) violated the children's television commercial limits on 20 occasions. Of these commercial overages, two were 60 seconds in duration; 15 were 30 seconds in duration; one was 17 seconds in duration; one was 11 seconds in duration; and one was a program-length commercial. You explain that "virtually all" of the violations occurred during the first year that the children's television commercial limits were in effect, "when station personnel were not fully familiar with required compliance procedures"; that five of the early violations and two of the more recent violations were caused by equipment failures or malfunctions; that the other violations "were the result of inadvertent human error and the failure to follow required station procedures"; and that "[s]trong corrective measures" adopted after the violations had been effective, because there had been "only three overages associated with human error...since October, 1992...." You further state that on March 19, 1994, a program provided by the Fox Television Network included a commercial announcement "featuring a character in the program"; and that this violation "was the fault of the network." Attached to Exhibit 3 was documentation containing details about the reported overages. Some of these documents indicate that on January 27, 1992, there was a "total computer crash" of the station's traffic system; that, as a result, the logs for the dates January 28 through February 7, 1992, had to be prepared manually; and that five of the commercial overages (two of 60 seconds duration, three of 30 seconds duration) were caused by the January 27 "computer crash". Also attached to Exhibit 3 is a memo which states that on August 18, 1995, there was a malfunction in the station's computer control system which, for no known reason, rewound a commercial announcement and started it again from the beginning; that the board operator on duty attempted to stop the rewound spot, but the machine did not immediately respond; and that, although the entire commercial announcement did not air, the malfunction in the computer control system caused an overage of 17 seconds. Another document attached to Exhibit 3 indicates that a similar equipment malfunction caused an overage of 11 seconds on April 19, 1996. Finally, attached to Exhibit 3 is a document which indicates that on March 19, 1994, during a program entitled "Tazmania", a commercial for Kellogg's Raisin Bran cereal which included a 10-second "premium" spot featuring a character from the program was "inadvertently" broadcast; and that the Fox Television Network had instituted procedures to ensure that there would be no recurrence. In establishing rules and policies limiting the amount of commercial matter which may be aired during children's programming, the Commission specifically recognized that licensees may experience "occasional emergency scheduling change[s]", and stated that such emergency schedule changes would be taken into consideration in determining whether "extenuating circumstances" mitigated any resulting children's television commercial limit violations. Children's Television Programming, supra 6 FCC Rcd at 2126 n.123. On reconsideration, the Commission affirmed this policy, stating that "where the facts demonstrate that a slight overage is caused by a last-minute emergency scheduling change, we will consider such a lapse to be 'de minimis.'" Children's Television Programming (Recon.), supra 6 FCC Rcd at 5096. Although the overages which occurred on August 18, 1995, and April 19, 1996, did not involve schedule changes, we believe that the computer malfunctions which caused rewinding and replaying of commercial announcements constitutes an extenuating circumstance with regard to those overages. Accordingly, the two overages which occurred on August 18, 1995, and April 19, 1996, shall be considered de minimis, and shall not be considered in determining any sanction which may be appropriate for other children's television commercial limit violations reported by the licensee. In contrast, the computer failure which allegedly caused five overages between January 30 and February 3, 1992, occurred on January 27, 1992, three days before the first overage. Further, documentation attached to Exhibit 3 of the WHNS(TV) renewal application indicates that the overage on January 30, 1992, occurred not because of the January 27 computer failure, but because the log for January 30 "was prepared manually and in the confusion...[station personnel] did not realize that the 6-7 AM time period had 30 seconds too much ...commercial time." Confusion on the part of station personnel and/or lack of awareness of the actual amount of commercial matter in a children's program do not constitute an extenuating circumstance with regard to violations of the children's television commercial limits. WHNS(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on 18 occasions constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, WHNS License Partnership is hereby advised of its apparent liability for forfeiture in the amount of ten thousand dollars ($10,000) 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). WHNS(TV) exceeded the children's television commercial limitations on 18 occasions over a two year period, including one program-length commercial. 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. However, in Exhibit 3, you indicate that "station personnel were not fully familiar with required compliance procedures" during the first year that the children's television commercial limits were in effect, and that the vast majority of the station's reported overages "were the result of inadvertent human error and the failure to follow required station procedures." In view of these statements and the violations listed in your renewal application, it is apparent that WHNS(TV) initially did not establish an effective program to monitor compliance with the children's television commercial limitations. 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; 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, 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 WHNS(TV) (and/or the Fox 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); 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 $10,000. Cf., WIVB- TV, supra 10 FCC Rcd at 4960($10,000 forfeiture for 11 overages, including three program- length commercials); Oregon Television, Inc., (KPTV(TV)), 10 FCC Rcd 8766, 8767 (1995)($10,000 forfeiture for 11 overages, including three program-length commercials). 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. Accordingly, the application of WHNS License Partnership, for renewal of license for Station WHNS(TV), Ashville, NC (BRCT-960725KL), is hereby GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosure cc: Suzanne M. Perry, Esq. $// WHNS LICENSE PARTNERSHIP, WHNS(TV) (Ashville, NC) DA 97-394 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$