******************************************************** 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 Released: September 8, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Channel 39 Licensee, Inc. Licensee, WDZL(TV) 2055 Lee Street Hollywood, FL 33020 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of twenty seven thousand five hundred dollars ($27,500) pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. 503(b), 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. 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 September 30, 1996, you filed an application for renewal of license (FCC Form 303-S) for Station WDZL(TV), Miami, FL (BRCT-960930LF). In response to Section III, Question 4 of that application you indicate that during the previous license term WDZL(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 5 to that application you indicate that between February 4, 1992 and May 2, 1996, WDZL(TV) exceeded the children's television commercial limits on 56 occasions. Of these 56 commercial overages, eight were less than 30 seconds in duration; 20 were 30 seconds in duration; three were one minute in duration; one was one minute and fifteen seconds in duration; two were one minute and thirty seconds in duration; and 22 were program-length commercials. Exhibit 5 further indicates that the vast majority of those overages are attributed to inadvertence and/or human error. Finally, Exhibit 5 indicates that the program-related advertisements in some of the program-length commercials contained as little as three seconds of program-related material. WDZL(TV)'s record of exceeding the children's television commercial limits on 56 occasions during the last license term constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Channel 39 Licensee, Inc., is hereby advised of its apparent liability for forfeiture in the amount of twenty seven thousand five hundred dollars ($27,500) 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. Initially we note that the violations occurred from February 4, 1992 to May 2, 1996, an extended period of over four years. 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. In view of the violations listed in WDZL(TV)'s renewal application, it appears that the station initially did not establish an effective program to monitor compliance with the children's television commercial limitations. The Commission has repeatedly rejected human error and/or inadvertence 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). The fact that WDZL(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). Further, WDZL(TV) exceeded the children's television commercial limitations on 56 occasions. This is a high number of violations. Notably, 22 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 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. Consideration of all of these factors warrants a forfeiture in the above-specified amount of $27,500. Cf., Paramount Stations Group of Washington, Inc. (WDCA(TV)), FCC Rcd (Chief, MMB NAL DA 97-391, adopted February 14, 1997, released February 26, 1997); Paramount Stations Group of Philadelphia, Inc. (WTXF(TV)), 10 FCC Rcd 6710 (1995). In Paramount/WDCA(TV), supra, a forfeiture of $15,000 was assessed for 20 instances of commercial overages, 11 of which were program-length commercials. In Paramount/ WTXF(TV), supra, a forfeiture of $15,000 was assessed for 52 instances of commercial overages, six of which were program-length commercials. The violations in the instant case (56 overages, including 22 program-length commercials) are substantially more significant than those in the above cited cases; a $27,500 forfeiture would be proportionate to and consistent with the forfeitures assessed in those cases. 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 Channel 39 Licensee, Inc., for renewal of license for Station WDZL(TV), Miami, FL (BRCT-960930LF), is hereby GRANTED. This letter was adopted by the Commission on September 2, 1997. BY DIRECTION OF THE COMMISSION William F. Caton Acting Secretary cc: Peter D. O'Connell, Esq. Enclosure kwdzlfr4.brf MSolberg/dsb/vsd/MMB n:\msolberg\kwdzlfr4.brf cc address: Channel 39 Licensee, Inc. Licensee, WDZL(TV) c/o Peter D. O'Connell, Esq. Reed Smith Shaw & McClay 1301 K Street N.W. Suite 1100 - East Tower Washington, DC 20005-3317 $// CHANNEL 33 LICENSEE, INC, WDZL(TV) (Miami, FL) FCC 97-311 //$ $/ 300.503(b) FORFEITURES (NAL) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$