******************************************************** 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: March 20, 1998 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Kentuckiana Broadcasting, Inc. Licensee, WFTE(TV) 5257 S. Skyline Drive Floyds Knobs, IN 47119 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. 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 April 1, 1997, you filed an application for renewal of license (FCC Form 303-S, File No. BRCT-970401KM) for Station WFTE(TV), Salem, Indiana (UPN). In response to Section III, Question 4 of that application, you indicate that during the previous license term WFTE(TV) failed to comply with the limits on commercial matter in children's programming specified in Section 73.670 of the Commissions Rules. According to the advertising log excerpts submitted with Exhibit 2 to your renewal application, between March 16, 1994, and September 2, 1996, WFTE(TV) exceeded the children's television commercial limits on 106 occasions. Of these 106 commercial overages, 21 were less than 30 seconds in duration; 45 were 30 seconds or longer but less than one minute in duration; 33 were one minute or longer but less than one minute and 30 seconds in duration; two were one minute and 30 seconds or longer but less than two minutes in duration; one was two minutes in duration; and four were program-length commercials. You explain that some of the overages occurred because "some station personnel" misunderstood the application of the commercial limits to children's programs one-half hour in duration. You state that those station employees believed that WFTE(TV) would be in compliance with the commercial limits as long as a one-half hour children's program contained no more than 12 minutes of commercial matter. Other overages are attributed to "improper pre-emption . . . of PSA's for things such as `make-goods' of previous unaired commercials, last-minute rescheduling of commercials, operator error, and an earlier failure to properly distinguish between weekday and weekend commercial limitations." WFTE(TV)'s record of exceeding the children's television commercial limits on 106 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, Kentuckiana Broadcasting, 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. WFTE(TV) exceeded the children's television commercial limits on 106 occasions. This is a very high number of violations. In addition, 36 of the overages were one minute or longer in duration, and 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 number, 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. Further, the violations occurred from March 16, 1994, to September 2, 1996, an extended period of two years and six months. Finally, the only explanations offered for the violations are inadvertence, human error and/or a misunderstanding by station personnel as to the application of the commercial limits to children's programs of less than one hour's duration. Initially, we note that in Children's Television Programming, supra, the Commission clearly established its policy concerning proration of the commercial limits to programs of less than an hour, stating: [W]here a half-hour "island" of children's programming airs in the midst of adult viewing, the limits should apply on a proportionate basis....Thus, a weekend half-hour children's program would be limited to 5.25 minutes of commercials, and a weekday half-hour program to 6 minutes. Id., 6 FCC Rcd at 2112, 2124 n.33. This policy was specifically affirmed on reconsideration. Children's Television Programming/Recon., supra, 6 FCC Rcd at 5095-96 & n.32. The Commission has repeatedly rejected misunderstanding of the rules, 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 (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); WKBD, Inc., 8 FCC Rcd 5079 (1993). In view of the violations listed in WFTE(TV)'s renewal application and the explanations offered for those violations, it is clear that WFTE(TV) failed to establish an effective program to monitor and ensure compliance with the children's television commercial limits. The fact that WFTE(TV) may have belatedly 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 $27,500. In a similar case, Independent Communications, Inc. (KTTM(TV) & KTTW(TV)), 8 FCC Rcd 7886 (1993), the Commission assessed a forfeiture of $27,500 for 121 commercial violations, including 51 one minute or longer overages, which occurred over a seven-month period. More recently, in LeSea Broadcasting Corporation (WHMB-TV), FCC 98-5 (released January 26, 1998), the Commission assessed a $27,500 forfeiture for 109 commercial violations, including 68 one minute or longer overages, which occurred over a one year period. Here, WFTE(TV) exceeded the children's television commercial limits on 106 occasions, including 36 overages one minute or longer in duration and four program- length commercials, over a period of two and a half years. Compared to Independent Communications and LeSea Broadcasting, WFTE(TV) had fewer total overages which occurred over a longer period of time. We note, however, that the period of time over which the overages occurred is only one of the five criteria we consider in assessing the forfeiture amount. In addition, Independent Communications and LeSea Broadcasting involved no program-length commercials, whereas WFTE(TV) had four such overages. As discussed above, Congress was particularly concerned about program-length commercials because of the difficulty that young children often have in distinguishing between commercials and programs. In view of this Congressional concern, the Commission made it clear that program-length commercials, by their very nature, are extremely serious violations of the children's television commercial limits, stating that the program-length commercial policy "directly addresses a fundamental regulatory concern, that children who have difficulty enough distinguishing program content from unrelated commercial matter, not be all the more confused by a show that interweaves program content and commercial matter." Children's Television Programming, supra, 6 FCC Rcd at 2118. Accordingly, the Commission has routinely assessed higher forfeitures for program-length commercials than for a greater number of conventional overages. See, e.g., Channel 39 Licensee, Inc. (WDZL(TV), 12 FCC Rcd 14012, 14015 n.3. For these reasons, we find the violations in the instant case to be comparable to those in Independent Communications and LeSea Broadcasting, and 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 Kentuckiana Broadcasting, Inc., for renewal of license for Station WFTE(TV), Salem, Indiana (BRCT-970401KM), is hereby GRANTED. This letter was adopted by the Commission on March 16, 1998. BY DIRECTION OF THE COMMISSION Magalie Roman Salas Secretary cc: Dan J. Alpert, Esq. Enclosure