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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-LG Released: January 26, 1998 CERTIFIED MAIL - RETURN RECEIPT REQUESTED LeSea Broadcasting Corporation Licensee, WHMB-TV P.O. Box 12 South Bend, IN 46624 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. Pursuant to this statutory mandate, 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 April 1, 1997, you filed an application for renewal of license (FCC Form 303-S, File No. BRCT-970401KO) for Station WHMB-TV, Indianapolis, IN (Ind.). In response to Section III, Question 4 of that application you state that during the previous license term WHMB-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 D to that application you indicate that between September 8, 1993, and September 2, 1994, WHMB- TV violated the children's television commercial limits on 109 occasions. Of these commercial overages, eight were less than 30 seconds in duration; 33 were 30 seconds or longer but less than one minute in duration; 35 were one minute or longer but less than one minute and 30 seconds in duration; 20 were one minute and 30 seconds or longer but less than two minutes in duration; and 13 were two minutes or longer in duration. You explain that the overages occurred because "per inquiry advertising was mistakenly logged as promotional rather than commercial matter", or because the responsible station employees "apparently only counted commercial matter within the actual program segment" rather than during the complete clock hour; and that the station has instituted policies and procedures to prevent recurrence. WHMB-TV's record of exceeding the children's television commercial limits on 109 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, LeSea Broadcasting Corporation 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. WHMB-TV exceeded the children's television commercial limits on 109 occasions during a one-year period. This is a very high number of violations. In addition, 68 of the overages were one minute or longer in duration, and 13 of those were two minutes or longer in duration. Overages of this number and duration 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. Further, the only explanations offered for the violations are human error and misunderstanding of the Commission's rules. The Commission has consistently rejected human error, inadvertence and/or misunderstanding of the rules 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; 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). 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...before compliance with the commercial limits is required will have the effect of enabling broadcasters...to hone their plans to ensure compliance...." Children's Television Programming, supra 6 FCC Rcd at 5530 n.10. In view of the violations cited and the explanations offered, it is apparent that the licensee initially failed to establish an effective program to ensure compliance with the commercial limits, and failed to notice or rectify this deficiency for one year. The fact that WHMB-TV may have belatedly implemented policies and procedures to prevent subsequent violations of the Commission's children's television rules 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); 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 $27,500. See Independent Communications, Inc. (KTTM(TV) & KTTW(TV)), 8 FCC Rcd 7886 (1993). In that case, a forfeiture of $27,500 was assessed for 121 commercial overages, 51 of which were greater than one minute in duration. Since we find the violations in the instant case (109 violations, including 68 overages one minute or longer in duration) 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 LeSea Broadcasting Corporation, for renewal of license for Station WHMB-TV, Indianapolis, IN (BRCT-970401KO), is hereby GRANTED. This letter was adopted by the Commission on January 16, 1998. BY DIRECTION OF THE COMMISSION Magalie Roman Salas Secretary Enclosure cc: John E. Fiorini III, Esq.