******************************************************** 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 22, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Press Broadcasting Company, Inc. Licensee, WKCF(TV) 3601 Highway 66 Box 1550 Neptune, NJ 07754 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of thirty thousand dollars ($30,000) 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 ("CTA"), 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. 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 October 1, 1996, you filed an application for renewal of license (FCC Form 303-S) for station WKCF(TV), Clermont, FL (BRCT-961001ZK). In response to Section III, Question 4 of that application you state that during the previous license term WKCF(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 2 to that application you indicate that between January 7, 1992, and January 24, 1996, WKCF(TV) violated the children's television commercial limits on 200 occasions. Of these commercial overages, four were less than 30 seconds in duration; 72 were 30 seconds or longer but less than one minute in duration; 37 were one minute or longer but less than one and one- half minutes in duration; 38 were one and one-half minutes or longer but less than two minutes in duration; 29 were two minutes or longer but less than three minutes in duration; 15 were three minutes or longer but less than four minutes in duration; and five were four minutes or greater in duration. You explain that the reported overages were discovered as a result of an audit conducted by the station in May, 1995, and were "attributable primarily to inadvertent oversight". In addition, you state that 120 of the overages occurred during a locally produced program entitled "Buckaroo Club"; that from April, 1992 through January, 1993, the "Buckaroo Club" program was two hours in duration; that the station employee responsible for the program's compliance with the children's television commercial limits was aware of the fact that the limit for the "Buckaroo Club" program was 12 minutes per hour, but misunderstood the rule to mean that the aggregate total for the two-hour program was limited to 24 minutes of commercial matter; and that this "innocent misunderstanding" resulted in hour-long segments of the program exceeding the 12-minute limit on 120 occasions. With regard to the 80 other overages, you state that "more than half" occurred in 1992, the first year during which the commercial limits were in effect. Finally, you state that after the overages were discovered as a result of the May, 1995 station audit, WKCF(TV) made changes in its policies and procedures to prevent further violations. In establishing its children's television commercial limit rules and policies, the Commission clearly stated that the limits would be applied on a clock-hour basis (Children's Television Programming, supra 6 FCC Rcd at 2112); and that we do not have the authority under the CTA to waive compliance with the commercial limits "on a long-term, blanket basis...where an 'average' number of commercial minutes is within the limits...." Id., 6 FCC Rcd at 2117. See WKBD, Inc., 8 FCC Rcd 5079, 5080 (1993). A licensee's assertion that it did not understand the Commission's children's television rules and policies does not relieve that licensee of liability for forfeiture for violation of those rules. KEVN, Inc., 8 FCC Rcd 5077, 5078 (1993); WKBD, Inc., supra; Channel 12 of Beaumont, Inc. (KBMT-TV), 9 FCC Rcd 1825 (1994). Accordingly, the 120 "Buckaroo Club" overages must be considered violations of the children's television commercial limits. WKCF(TV)'s record during the last license term of exceeding the Commission's commercial limits on children's television programming on 200 occasions constitutes a repeated violation of Section 73.670 of the Commission's rules. Accordingly, pursuant to Section 503(b) of the Communications Act, Press Broadcasting Company, Inc. is hereby advised of its apparent liability for forfeiture in the amount of thirty thousand dollars ($30,000) 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. Initially, we note that WKCF(TV) exceeded the children's television commercial limitations on 200 occasions. This is an unusually high number of violations. Further, 124 of the violations were one minute or greater in duration, and 49 of those were two minutes or greater in duration. Overages of this number 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. In addition, violations occurred at WKCF(TV) regularly and continually from January, 1992, through May, 1995, an extended period of three years and four months. 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, although the overages started at WKCF(TV) on January 7, 1992, the first week that the limits were in effect, WKCF(TV) did not discover that it was regularly violating the commercial limits until the station conducted an audit in May, 1995. As discussed above, a licensee's assertion that it misunderstood the children's television rules and policies does not relieve that licensee of liability for forfeiture for violation of those rules. Similarly, the Commission has repeatedly ruled that an assertion of inadvertence and/or human error does not mitigate or excuse violations of the children's television commercial limits. 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). Thus, in view of the violations listed and the explanations offered in WKCF(TV)'s renewal application, it is clear that the station initially did not establish an effective program to ensure compliance with the children's television commercial limitations, and did not notice it was in violation until May, 1995, three years and four months after the violations began. The fact that WKCF(TV) may have implemented policies and procedures in an effort to ensure compliance with the children's television commercial limits after its May, 1995 audit does not relieve the licensee of liability for violations which occurred prior to the audit. International Broadcasting Corp., 19 FCC 2d 793, 794 (1969); UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10986, 10988 (1995); 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, even after the May, 1995 audit, the new policies and procedures implemented at WKCF(TV) still were not sufficient to ensure compliance with the children's television commercial limits, since three additional violations occurred between July, 1995, and January, 1996. Consideration of all of these factors warrants a forfeiture in the above-specified amount of $30,000. Cf. Koplar Communications (KPLR-TV), 8 FCC Rcd 7884 (1993). In that case, the Commission imposed a forfeiture of $30,000 for 197 commercial overages, 123 of which were one minute or greater in duration. Since we find the violations in the instant case to be comparable, we conclude that a comparable forfeiture is appropriate. 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 Press Broadcasting Company, Inc., for renewal of license for Station WKCF(TV), Clermont, FL (BRCT-961001ZK) is hereby GRANTED. This letter was adopted by the Commission on September 11, 1997. BY DIRECTION OF THE COMMISSION William F. Caton Acting Secretary Enclosure