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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""2"2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""\4  pG;W!@(#,h@\  P6G;hPH5!,),5\  P6G;,P\ {,W80,%BZW*f9 xr G;X!z-X80,<|X9 xOG;<~9nnn,Xn6X@`7&@ <?xxx,Xx6X@`7X@ ?xxx,`x `7X}:nnn,`n `7&\5hC:,%rXh*f9 xr G;XX"i~'^:DTddDDDd4D48ddddddddddDDd||||DXp||dp||ppL8LTdDddXdX8dd88X8ddddLL8dXXXLP8PlD4lTDDD4DDDDDDdDd8|d|d|d|d|dX|X|X|X|XD8D8D8D8dddddddddpX|ddddpXd|d|d|d|dXXlXx|X|X|X|XdddldldD8DdDDDddllXp8pHpDp@p8dtdddd|L|L|LdLdLdLllpHp8pTddddddplpLpLpLdpDddLpDpdx4ddC,CWddddddddddddddddddddddddddddddddddddddddNHxxHhdLdddddd8@d<@d<DDppdDDxddxHxxHkddDpd<"dxtldxxd X- X    X-w  Federal Communications Commission`)(#gDA 981461 ă  yxdddy vg#X\  P6G;ɒP# Before the Federal Communications Commission  yO}>Washington, D.C. 20554 ă  XA-#Xj\  P6G;ynXP#) In the Matter of Liability of ) ) MISSISSIPPI BROADCASTING ) PARTNERS) ) Licensee of Television Station) WABGTV, Greenwood, Mississippi) ) for a Forfeiture) )  X-  MEMORANDUM OPINION AND ORDER \  X-X` hp x (#%'0*,.8135@8:the extent to which the licensee has complied with such commercial limits. Pursuant to this  d(#statutory mandate, the Commission adopted Section 73.670 of the Rules which limits the amount  d(#>of commercial matter which may be aired during children's programming to 10.5 minutes per  X5"- d(#hour on weekends and 12 minutes per hour on weekdays. Children's Television Programming,  X #- d(#k6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). The commercial  X $- d(#zlimits became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991)."$,))ZZ#"Ԍ  ԙx3. On February 3, 1997, MBP filed an application to renew its license for WABGTV  x(File No. BRCT970203LD). In response to Section III, Question 4 of that application, WABG x^TV certified that it had not complied with the limits on commercial matter in children's  xprogramming specified in Section 73.670 of the Commission's Rules. Therefore, in accordance  x=with Question 4, MBP submitted an exhibit to its application, Exhibit 4, listing each segment of  x[children's programming which exceeded the commercial limits. In Exhibit 4, MBP indicated that  xbetween June 6, 1992, and May 27, 1995, WABGTV exceeded the commercial limits on  xchildren's television on 59 occasions. Of those commercial overages, nine were less than 30  xseconds in duration, 10 were 30 seconds or longer but less than one minute   in duration, 10 were  xLone minute or longer but less than one and onehalf minutes in duration, 11 were one and one xhalf minutes or longer but less than two minutes in duration, sixteen were two minutes or longer but less than three minutes in duration and three were greater than three minutes in duration.  X -  x4. In MBP NAL, we found that WABGTV's record of exceeding the Commission's  xcommercial limits on 59 occasions during the last license term constituted a repeated violation  xof Section 73.670 of the Commission's Rules. Accordingly, pursuant to Section 503(b) of the  xCommunications Act of 1934, as amended, 47 U.S.C.  503(b), MBP was advised of its apparent  xliability for forfeiture in the amount of $15,000. That amount was reached after consideration  xof the factors set forth in Section 503(b)(2) of the Communications Act, and, in particular, the  xyfive criteria consisting of: (1) the number of instances of commercial overages; (2) the length of  xeach overage, the period of time over which the overages occurred; (4) whether or not the  xlicensee established an effective program to ensure compliance; and (5) the specific reasons that  X- xthe licensee gave for the overages. Applying these criteria to the facts of WABGTV's case, we  xstated that not only was the total number of violations high, but that 40 of the commercial  xoverages were one minute or longer in duration. Given this number and the nature of WABG x.TV's overages, we concluded that children had been subjected to commercial matter greatly in  xexcess of the limits contemplated by Congress when it enacted the Children's Television Act of  xj1990. Although 52 of the overages occurred in 1992, the first year that the children's television  xcommercial limits were in effect, we said that this neither excused nor mitigated the violations.  xTo this end, we referred to the Commission's statement made at the time it delayed the effective  x=date of Section 73.670 of the Rules from October 1, 1991, until January 1, 1992, that "giving the  xadditional time to broadcasters and cable operators before compliance with the commercial limits  xis required will have the effect of enabling broadcasters and cable operators to hone their plans  X - xto ensure compliance . . . ." Children's Television Programming, 6 FCC Rcd at 5530 n.10. In  xaddition, we rejected MBP's reasons for the violations, human error, inadvertence and/or  xmisunderstanding of the rules, as a basis for excusing WABGTV's violations of the commercial  X - x\limits. Though WABGTV implemented a plan to prevent future violations of the children's  xtelevision commercial limitations, this did not relieve MBP of liability for the violations which had occurred.  Xl$-  x5. In its Petition, MBP contends that, in assessing the forfeiture amount, the Commission  xfailed to give appropriate weight to the fact that 52 of the 59 listed overages occurred early in  xWABGTV's license term and very soon after the children's programming rules were enacted.  xxThat failure to consider the timing of the overages as a mitigating factor, MBP asserts, contradicts"'',-(-(ZZ%"  xLCommission precedent and renders imposition of a fine in this case an arbitrary and capricious  xaction. In support, MBP maintains that the Commission has previously granted, without the  ximposition of any monetary forfeiture, the license renewals of other stations reporting overages  x[which occurred soon after the children's programming rules were enacted. According to MBP,  xjmoreover, in declining to fine those broadcasters, the Commission "recognized that a period of  xtrial and error is to be expected when a new rule is promulgated and that, therefore, it should be  xlenient regarding early violations of the children's programming limits." MBP further argues that,  xas a similarlysituated party, it should be granted leniency for WABGTV's 52 overages which  xoccurred during "an early trial and error period," and that if one overage can be excused because  xa broadcaster is still learning to comply with a new rule, then all broadcasters learning to comply  xshould be similarly excused, regardless of the number of overages. For these reasons, MBP concludes that the fine assessed against WABGTV is erroneous and should be reduced.   ^x6. We disagree with MBP. Preliminarily, MBP cites no cases or authority in support  xof its argument that the Commission has previously excused violations based on a trial and error  X - xperiod visavis Section 73.670 of the Rules. Nor are we aware of any such cases. Rather, the  X- xCommission has consistently considered all violations of the children's television commercial  X}- xlimits occurring on and after the effective date of Section 73.670 to determine the appropriate  Xh- xsanction in a given case. See, e.g., JeffersonPilot Communications Company (WBTV(TV)), 12  xFCC Rcd 2526 (1997) (79 overages occurring between January 18, 1992, and August 19, 1995,  X<- xconsidered in assessing $20,000 forfeiture); UTV of San Francisco, Inc. (KBHKTV), 10 FCC Rcd  xz10987 (1995) (218 overages occurring between January 2, 1992, and May 7, 1993, considered  X- xin assessing $40,000 forfeiture); Scripps Howard Broadcasting Co. (KNXVTV), 9 FCC Rcd 2547  xL(1994) (five overages occurring in January and February 1992, considered in assessing $10,000  X- x?forfeiture); Paramount Stations of Houston, Inc. (KTXHTV), 9 FCC Rcd 140 (1993) (132  X- xoverages occurring in 1992 considered in assessing $80,000 forfeiture). As we mentioned in  X- xMBP NAL, the Commission expected that, in delaying the effective date of Section 73.670,  xbroadcasters and cable operators would have additional time within which to hone their plans to  xensure compliance with the commercial limits. The fact that, even with the benefit of that  xadditional time, WABGTV failed to develop an effective compliance program by Section  x73.670's effective date neither warrants nor justifies a reduction in the forfeiture amount assessed  XG-in MBP NAL.   x7. We believe, too, that MBP essentially claims transitional difficulties by arguing that  X- xany overages occurring during a "trial and error period," i.e., the first year after Section 73.670's  xeffective date, should be excused because broadcasters were still learning to comply with that new  xrule. In this regard, at the time it delayed the effective date of Section 73.670, the Commission  xnoted that, in the context of enforcement action of violations of the limits, it would be unlikely  X"- xto be sympathetic to claims of transitional difficulties. Children's Television Programming, 6  xMFCC Rcd at 5530 n.10. For this reason, we reject MBP's "trial and error period" argument as  xa basis for excusing WABGTV's 52 overages which occurred regularly beginning June 6, 1992,"~$,-(-(ZZ(#"  X- x=through and including December 26, 1992.~V yOy- xԍ The Commission very infrequently excuses violations of the children's television commercial limits and does  {OA- x<so only under narrowly defined, extenuating circumstances. See Children's Television Programming, 6 FCC Rcd  xat 2117 n.123. Lest there be any misunderstanding or confusion with respect to whether the Commission has excused  xviolations in a particular case, we emphasize, here, that the Commission has not excused those violations it has found  {O- xde minimis or for which it has issued a letter of admonition. Rather, the Commission has merely determined that,  {Oe- xbased on its evaluation of the circumstances of that particular case under the relevant criteria, see supra 4, the violations do not rise to the level warranting imposition of a monetary forfeiture. We conclude, moreover, that our consideration of  X-those 52 overages was consistent with Commission practice and policy. See supra 6.    ]x8. Furthermore, the monetary forfeiture at issue here was determined in accordance with  X- xthe five criteria developed and applied by the Commission in previous cases, see supra 4, in  xconformity with the standards established in Section 503 of the Communications Act. In  xaddition, the $15,000 forfeiture is consistent with the forfeitures imposed in similar cases and,  Xc- xiin particular, to the forfeiture assessed in Centennial Communications, Inc, (WGNT(TV)), 12 FCC  XN- xRcd 1354 (1997) (Centennial). In that case, which we referred to in MBP NAL, we assessed a  X9- x$14,000 forfeiture for 49 violations 9V yO- xԍ Of those 49 overages, nine were 15 seconds or less in duration, 28 were 30 seconds in duration, two were 45  xseconds in duration, three were one minute in duration, four were one minute and 30 seconds in duration, one was  xtwo minutes in duration, one was two minutes and 30 seconds in duration and one was two minutes and 40 seconds in duration. which occurred over a period of three years and four months.  xWGNT(TV) asserted that a majority of the violations occurred "soon after the limits were  x-imposed, between 1992 and 1994," and attributed the violations to human error, inadvertence and  xmisunderstanding and/or ignorance of the children's television commercial limits. However, we  xrejected those reasons as a basis for excusing the violations, and considered all of the reported  xoverages occurring on and after January 1, 1992, the effective date of Section 73.670. Consistent  X - x<with our decision in Centennial, we rejected those same reasons in MBP NAL when MBP offered  xzthem to explain WABGTV's violations, and likewise considered all of WABGTV's reported  xxoverages. We believe such consideration was proper and consistent with Commission policy and  Xl- xxprecedent. See supra 6. Though we assessed a slightly higher forfeiture in the instant case than  XW- xin Centennial, we point out that WABGTV had a greater number of total overages, which were  xalso of generally longer durations. Therefore, in view of the foregoing considerations, we affirm  xour determination that, on balance, the $15,000 forfeiture assessed against MBP for WABGTV's 59 violations of the children's television commercial limits was appropriate.  X-  x9. For all these reasons, the arguments contained in the Response to Notice of Apparent  X- xLiability and Petition for Reconsideration of the $15,000 forfeiture assessed in Mississippi  X- xBroadcasting Partners (WABGTV), 12 FCC Rcd 9863 (1997), do not warrant reduction or  xkremission of the assessed forfeiture. Accordingly, IT IS ORDERED THAT the Response to  x Notice of Apparent Liability and Petition for Reconsideration IS DENIED. IT IS FURTHER  xORDERED THAT, pursuant to Section 503(b) of the Communications Act of 1934, as amended,  x47 U.S.C.  503(b), Mississippi Broadcasting Partners FORFEIT to the United States the sum of  xyfifteen thousand dollars ($15,000) for repeated violations of Section 73.670 of the Commission's"I ,-(-(ZZ{"  x=Rules, 47 C.F.R. 73.670. Payment of the forfeiture may be made by mailing to the Commission  xa check or similar instrument payable to the Federal Communications Commission. With regard  xto this forfeiture proceeding, Mississippi Broadcasting Partners may take any of the actions set  x|forth in Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, as summarized in the attachment to this Memorandum Opinion and Order. x FEDERAL COMMUNICATIONS COMMISSION x Roy J. Stewart x Chief, Mass Media Bureau Attachments ",-(-(ZZu"  X- n:\winapps\wpwin\kidvid\wabg.rd Mississippi Broadcasting Partners P.O. Box 1243 Greenwood, MS 38701 Mississippi Broadcasting Partners c/o Mark Prak, Esq. Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. P.O. Box 1800 Raleigh, NC 27602  Xb- d(#! $// MISSISSIPPI BROADCASTING PARTNERS, WABGTV (Greenwood, MS) DA 981461 $J  //$ $/ 300.503(b) FORFEITURES (FORFEITURE ORDER) /$ $/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$  X-