******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 November 3, 1997 Released: November 4, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED WTTE, Channel 28 Licensee, Inc. Licensee, WTTE(TV) 2000 West 41st Street Baltimore, MD 21211 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 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 per hour on weekends and 12 minutes per hour on weekdays. The Commission also reaffirmed and clarified its long-standing policy against "program- length commercials". The Commission defined a "program-length commercial" as "a program associated with a product, in which commercials for that product are aired", and stated that the entire duration of any 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 June 2, 1997, you filed an application for renewal of license (FCC Form 303-S) for Station WTTE(TV), Columbus, OH (File No. BRCT-970602LX). In response to Section III, Question 4 of that application you state that during the previous license term WTTE(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 3 to that application you cite five occasions where WTTE(TV) exceeded the children's television commercial limits during the previous license term. You state that on September 11, 1993, a 30-second commercial overage occurred as a result of an "erroneous calculation of the commercial time allowed" in the affected time period; and that the station instituted "a second check-off system" to prevent such overages in the future. In addition, you state that on two occasions, November 28, 1994, and November 30, 1994, a commercial announcement featuring the cartoon character "Sonic the Hedgehog" was broadcast during the "Sonic the Hedgehog" program; that the commercial announcement in question was a barter spot placed in the program by the program's supplier; and that WTTE(TV) had no warning that the commercial announcement included the program's title character. Further, you state that on July 12, 1995, as a result of a "traffic scheduling error" during a broadcast of the program "Bobby's World", the title character "Bobby" appeared "in the background" of a commercial announcement which promoted "an upcoming comic book expo in the Columbus area"; and that the commercial announcement in question "was not promoting 'Bobby's World' in any way". Finally, you state that on August 22, 1995, a broadcast of the program "Mighty Morphin Power Rangers" included a commercial announcement for "LA Gear children's shoes featuring a 'Power Rangers' contest"; that this commercial announcement was "inadvertently" included in the program; and that meetings were held with station personnel and a new procedure was instituted to prevent future violations. WTTE(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on five occasions constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, WTTE, Channel 28 Licensee, Inc. 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 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. 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 WTTE(TV) appears to have made an 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. Although one of the overages described in WTTE(TV)'s renewal application was 30 seconds in duration, four 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 assertion that the "Sonic the Hedgehog" program-length commercials occurred as a result of the insertion of commercial matter in the program by the program's supplier does not absolve WTTE(TV) of responsibility for those violations. The Commission has consistently held that a licensee's reliance on a program's source or producer for compliance with the children's television rules and policies will not mitigate or excuse 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). With regard to the "Bobby's World" broadcast, the Commission has consistently held that where a commercial announcement is primarily for a product otherwise unrelated to a program, but that announcement also includes references to or offers of products which are related to the program, than the broadcast of that commercial announcement during the program to which the included products relate will render that program a program-length commercial. See, e.g., North Carolina Broadcasting Partners (WCCB(TV)), FCC Rcd (FCC 97-327, adopted September 11, 1997, released September 22, 1997); WSYT(TV), supra 10 FCC Rcd at 8905 (1995); Scripps Howard Broadcasting Co. (KNXV-TV), 9 FCC Rcd 2547 (1994); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994); Quad Cities Television (KLJB-TV), 9 FCC Rcd 1711 (1994). Further, the determination as to whether a particular program is a program-length commercial is not dependent on the duration of the appearance of the program-related product in the commercial announcement: where a commercial announcement includes a product related to the program in which the commercial is broadcast, then the program is a program-length commercial regardless of the duration of the appearance of the program-related product in the commercial. UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10986, 10988 (1995). The only other reason for the overages proffered by WTTE(TV), inadvertence and human error, do not mitigate or excuse such violations. Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (1995); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959 (1995); Le Sea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (1995). Finally, the fact that WTTE(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 $10,000. Cf., Gannett Massachusetts Broadcasting, Inc. (WLVI-TV), 9 FCC Rcd 1555 (1994) ($10,000 forfeiture for seven overages, including four program-length commercials); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (1994) ($10,000 forfeiture for six 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. Therefore, the license renewal application of WTTE, Channel 28 Licensee, Inc., for Station WTTE(TV), Columbus, OH (File No. BRCT-970602LX), IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: Martin R. Leader, Esq. kwttefr2.rel MSolberg/dsb/vsd/MMB n:\msolberg\kwttefr2.rel $// WTTE, CHANNEL 28 LICENSEE, INC., WTTE(TV)(Columbus, OH) DA 97-2315 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$