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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Liability of LeSea Broadcasting Corporation ) ) Licensee of Television Station ) KWHE (TV), Honolulu, Hawaii ) ) For a forfeiture ) FORFEITURE ORDER Adopted: March 25, 1997 Released: March 27, 1997 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief of the Mass Media Bureau, acting pursuant to authority delegated by Section 0.283 of the Commission's Rules, has under consideration (1) a $20,000 Notice of Apparent Liability (NAL) issued January 11, 1993, to LeSea Broadcasting Corporation ("LeSea"), licensee of television station KWHE(TV), Honolulu, Hawaii; and (2) the licensee's February 11, 1993, response to the NAL, asking that the forfeiture be remitted or reduced. 2. The forfeiture was assessed for repeated violations of Section 73.670 of the Commission's Rules, 47 C.F.R.  73.670, which sets commercial limits on children's television programming of 10.5 minutes per hour on the weekends and 12 minutes per hour on weekdays. As explained in the NAL, because the 30 minute children's program "Quigley's Village" used program characters to promote the sale of program-related materials, the entire program is considered a program-length children's commercial. As such, each of the 27 separate broadcasts of "Quigley's Village," aired over nearly a six-month period, substantially exceeded the established commercial limits. LeSea does not dispute that the 27 broadcasts constituted "children's program-length commercials." 3. The licensee argues that the forfeiture should be remitted or reduced. It submits that it did not have adequate notice of the proscribed conduct, that it has not been operating at a profit, and that payment of the forfeiture would divert resources from an associated organization's plan to provide "relief of hunger worldwide." 4. With respect to the first argument, LeSea asserts that the Commission provided "absolutely no notice whatever that the entire 30-minute . . . program would constitute commercial matter within the meaning of Section 73.670 of the Rules." We disagree. We defined a program-length commercial in Children's Television Programming, supra note 2. In that same order, we further informed licensees that the entire duration of a program associated with a product in which commercials are aired for that product would be counted as commercial time for the purpose of the children's television commercial limits. Children's Television Programming, 6 FCC Rcd at 2118. Finally, this information was published in the Federal Register. 5. With respect to LeSea's second argument, that the Commission should remit or reduce the forfeiture because of the substantial operating losses incurred by LeSea in the operation of KWHE(TV), we note that LeSea neither has claimed financial inability to pay the forfeiture nor has provided documentation demonstrating an inability to do so. Thus, LeSea's alleged operating losses afford no basis for us to reduce the forfeiture. See Section 503(b)(2)(D) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b)(2)(D) (the Act). 6. LeSea asserts a third argument, that payment of the forfeiture would divert resources from an associated organization's charitable goals. However, the potential merits of innumerable activities or investments of a related organization that may be adversely affected as a result of the issuance of a forfeiture to a licensee for non-compliance with our rules are immaterial to whether a forfeiture should be issued. Accordingly, the forfeiture's asserted impact on relief of worldwide hunger is not a valid basis upon which to remit or reduce the forfeiture. 7. Finally, while the amount of the forfeiture was in part determined by the guidelines described in our Policy Statement on Standards for Assessing Forfeitures ("Policy Statement"), 6 FCC Rcd 4659 (1991), recon. denied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993), which the court set aside in United States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994), it was also based upon "the factors set forth in Section 503(b)(2) of the [Act] ...." These factors include the nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, and ability to pay. Because the forfeiture was based upon these statutory considerations, it was "not inherently tied to the Policy Statement." SeeNorthstar Television of Erie, Inc., (WSEE-TV), 10 FCC Rcd 3779 (1995); Clear Channel 10 FCC Rcd at 3774. Consequently, notwithstanding the Policy Statement, the forfeiture was determined on the basis of appropriate criteria for analyzing commercial overages in children's programs. 8. In light of the above, pursuant to Section 503(b) of the Communications Act, IT IS ORDERED, that LeSea Broadcasting Corporation, licensee of television station KWHE(TV), Honolulu, Hawaii, FORFEIT to the United States the sum of twenty thousand ($20,000) for repeated violations of Section 73.670 of the Commission's Rules. Payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission. In regard to this forfeiture proceeding, the licensee may take any of the actions set forth in Section 1.80 of the Commission's Rules, as summarized int he attachment to this Memorandum Opinion and Order. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau