Federal Communications Commission DA 07-1317 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of University Broadcasting, Inc. Licensee of Station KGEB(TV) Tulsa, Oklahoma ) ) ) ) ) Facility I.D. No. 24485 NAL/Acct. No. 0741420015 FRN: 0008120529 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: March 19, 2007 Released: March 21, 2007 By the Chief, Media Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“NAL”) issued pursuant to Section 503(b) of the Communications Act of 1934, as amended (the “Act”), and Section 1.80 of the Commission’s Rules (the “Rules”),1 by the Chief, Media Bureau pursuant to authority delegated under Section 0.283 of the Rules,2 we find that University Broadcasting, Inc. (the “Licensee”), licensee of Station KGEB(TV), Tulsa, Oklahoma (the “Station”), apparently violated Section 73.670 of the Rules, by failing to comply with the limits on commercial matter in children’s programming.3 Based upon our review of the facts and circumstances before us, we conclude that the Licensee is apparently liable for a monetary forfeiture in the amount of eight thousand dollars ($8,000). II. BACKGROUND 2. In the Children’s Television Act of 1990, 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 renewal applications the extent to which the licensee has complied with such commercial limits.4 Pursuant to this statutory mandate, the Commission adopted Section 73.670 of the Rules, 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 stated that a program associated with a product, in which commercials for that product are aired, would cause the entire program to be counted as commercial time (a “program-length commercial”).5 3. On February 1, 2006, the Licensee filed its license renewal application (FCC Form 303- S) for Station KGEB(TV) (the “Application”) (File No. BRCT-20060201AFA). In response to Section IV, Question 5 of the Application, the Licensee stated that, during the previous license term, the Station 1 47 U.S.C. § 503(b); 47 C.F.R. § 1.80. 2 See 47 C.F.R. § 0.283. 3 See 47 C.F.R. § 73.670. 4 Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S.C. §§ 303a, 303b and 394. 5 Children’s Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). Federal Communications Commission DA 07-1317 2 failed to comply with the limits on commercial matter in children’s programming specified in Section 73.670 of the Rules. In Exhibit 19, the Licensee indicated that between June 16, 1999, and June 21, 1999, the Station violated the children’s television commercial limits on three occasions when it aired a commercial during a children’s program that offered for sale a tape of the program and a toy that resembled one of the program’s characters. The Licensee stated that the commercial and the program were provided by the syndicator, O. Atlas Enterprises. In addition, the Licensee described the measures that it took to prevent the recurrence of such errors. Moreover, the Licensee maintained that in August 1999, it notified the Mass Media Bureau of the apparent violations. The Licensee argued that these incidents should be considered as “isolated occurrences” since the program-length commercials aired on only three occasions during the license term and were promptly disclosed to the Commission.6 III. DISCUSSION 4. Station KGEB(TV)’s record during the last license term of exceeding the children’s television commercial limits on three occasions, all program-length commercials, constitutes an apparent willful and repeated violation of Section 73.670. Congress was particularly concerned about program- length commercials because young children often have difficulty distinguishing between commercials and programs.7 Given 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.”8 5. The number and magnitude of overages at issue here 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 1990.9 Although the Licensee indicated that the program-length commercials were provided by a syndicator, this does not relieve it of responsibility for the violations. In this regard, the Commission has consistently held that a licensee’s reliance on a program’s source or producer for compliance with the Commission’s children’s television rules and policies will not excuse or mitigate violations which do occur.10 Furthermore, the Licensee’s implementation of 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.11 Moreover, we disagree with the Licensee’s argument that the airing of three program-length commercials are “isolated occurrences.” 12 Further, we 6 In support of its argument, the Licensee cited, WMMF License, LLC, 21 FCC Rcd 104 (MB 2006) (WMMF License); WXON License, Inc., 20 FCC Rcd 16528 (MB 2005) (WXON License). 7 S. Rep. No. 227, 101st Cong., 1st Sess. 24 (1989). 8 Children’s Television Programming, 6 FCC Rcd at 2118. 9 Children’s Television Programming, 6 FCC Rcd at 2117-18. 10 See, e.g., Max Television of Syracuse, L.P. (WSYT(TV)), 10 FCC Rcd 8905 (MMB 1995); Mt. Mansfield Television, Inc. (WCAX-TV), 10 FCC Rcd 8797 (MMB 1995); Boston Celtics Broadcasting Limited Partnership (WFXT(TV)), 10 FCC Rcd 6686 (MMB 1995). 11 See, e.g., WHP Television, L.P. (WHP-TV), 10 FCC Rcd 4979, 4980 (MMB 1995); Mountain States Broadcasting, Inc. (KMSB-TV), 9 FCC Rcd 2545, 2546 (MMB 1994); R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715, 1716 (MMB 1994); KEVN, Inc. (KEVN-TV), 8 FCC Rcd 5077, 5078 (MMB 1993); International Broadcasting Corp., 19 FCC 2d 793, 794 (1969). 12 Although the Licensee cited WMMF License and WXON License in support of its assertion, we note that the licensees in those cases reported one program length commercial, and two program length commercials and one (continued....) Federal Communications Commission DA 07-1317 3 find it troubling that these program-length commercials offered for sale materials and objects such as a tape of the program and a toy resembling one of the program’s characters which are unmistakable violations of the children’s television commercial limits and policies. 6. This NAL is issued pursuant to Section 503(b)(1)(B) of the Act. Under that provision, any person who is determined by the Commission to have willfully or repeatedly failed to comply with any provision of the Act or any rule, regulation, or order issued by the Commission shall be liable to the United States for a forfeiture penalty.13 Section 312(f)(1) of the Act defines willful as “the conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law.14 The legislative history to Section 312(f)(1) of the Act clarifies that this definition of willful applies to both Sections 312 and 503(b) of the Act,15 and the Commission has so interpreted the term in the Section 503(b) context.16 Section 312(f)(2) of the Act provides that “[t]he term ‘repeated,’ when used with reference to the commission or omission of any act, means the commission or omission of such act more than once or, if such commission or omission is continuous, for more than one day.”17 7. The Commission’s Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules establish a base forfeiture amount of $8,000 for violation of Section 73.670.18 In determining the appropriate forfeiture amount, we may adjust the base amount upward or downward by considering the factors enumerated in Section 503(b)(2)(D) of the Act, including “the nature, circumstances, extent and gravity of the violation, and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.”19 8. In this case, a downward adjustment is not justified in light of the number and nature of the commercial overages. Accordingly, we find that the Licensee is apparently liable for a forfeiture in the amount of $8,000 for its apparent willful and repeated violation of Section 73.670. IV. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Section 1.80 of the Commission’s Rules, that University Broadcasting, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of eight thousand dollars ($8,000) for its apparent willful and repeated violation of Section 73.670 of the Commission’s Rules. 10. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission’s Rules, that, within thirty (30) days of the release date of this NAL, University Broadcasting, Inc. SHALL PAY the full (...continued from previous page) conventional overage, respectively. In this case, however, it is undisputed that Station KGEB(TV) aired three program-length commercials. Therefore, we do not believe that these instances represent “isolated occurrences.” 13 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1). 14 47 U.S.C. § 312(f)(1). 15 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982). 16 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991). 17 47 U.S.C. § 312(f)(2). 18 See Forfeiture Policy Statement and Amendment of Section 1.80(b) of the Rules to Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087, 17113-15 (1997) (“Forfeiture Policy Statement”), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b)(4), note to paragraph (b)(4), Section I. 19 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100-01; 47 C.F.R. § 1.80(b)(4); 47 C.F.R. § 1.80(b)(4), note to paragraph (b)(4), Section II. Federal Communications Commission DA 07-1317 4 amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 11. Payment of the proposed forfeiture must be made by check or similar instrument, payable to the order of the Federal Communications Commission. The payment must include the NAL/Acct. No. and FRN No. referenced above. Payment by check or money order may be mailed to Federal Communications Commission, at P.O. Box 358340, Pittsburgh, Pennsylvania 15251-8340. Payment by overnight mail may be sent to Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, Pennsylvania 15251. Payment by wire transfer may be made to ABA Number 043000261, receiving bank Mellon Bank, and account number 911-6106. 12. The response, if any, must be mailed to Office of the Secretary, Federal Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554, ATTN: Barbara A. Kreisman, Chief, Video Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above. 13. The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the respondent submits: (1) federal tax returns for the most recent three- year period; (2) financial statements prepared according to generally accepted accounting practices (“GAAP”); or (3) some other reliable and objective documentation that accurately reflects the respondent’s current financial status. Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial documentation submitted. 14. Requests for full payment of the forfeiture proposed in this NAL under the installment plan should be sent to: Associate Managing Director- Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554.20 15. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to University Broadcasting, Inc., 7777 South Lewis Avenue, Tulsa, Oklahoma 74171, and to its counsel, Joseph C. Chautin, III, Esq., Hardy, Carey, Chautin & Balkin, LLP, 110 Veterans Boulevard, Suite 300, Metairie, Louisiana 70005. FEDERAL COMMUNICATIONS COMMISSION Monica Shah Desai Chief, Media Bureau 20 See 47 C.F.R. § 1.1914.