Federal Communications Commission DA 08-1105 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of WATE, G.P. Licensee of Station WATE-TV Knoxville, Tennessee ) ) ) ) ) Facility I.D. No. 71082 NAL/Acct. No. 0841420043 FRN: 0005575394 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: May 20, 2008 Released: May 21, 2008 By the Chief, Video Division, 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, Video Division, Media Bureau pursuant to authority delegated under Section 0.283 of the Rules,2 we find that WATE, G.P. (the “Licensee”), licensee of Station WATE-TV, Knoxville, Tennessee (the “Station”), apparently willfully and repeatedly violated Section 73.670 of the Rules, by failing to comply with the limits on commercial matter in children’s programming.3 Moreover, we find that the Licensee apparently willfully and repeatedly violated Section 73.3526(e)(11)(i) of the Rules, by failing to maintain in the Station’s public inspection file all of its TV issues/programs lists.4 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.5 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 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 See 47 C.F.R. § 73.3526(e)(11)(i). 5 Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S.C. §§ 303a, 303b and 394. Federal Communications Commission DA 08-1105 2 commercial time (a “program-length commercial”).6 3. On April 1, 2005, the Licensee filed its license renewal application (FCC Form 303-S) for Station WATE-TV (the “Application”) (File No. BRCT-20050401BIC). In response to Section IV, Question 5 of the Application, the Licensee stated that, during the previous license term, the Station 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 April 26, 2003, and October 23, 2004, the Station exceeded the children’s television commercial limits on 33 occasions. Of these overages, two were four seconds in duration, and 31 were 15 seconds in duration. The Licensee attributed the four- second overages to human error. 4. With respect to the 15-second overages, the Licensee indicated that, in each instance, the overage occurred when the Station aired a 30-minute children’s program in the same clock hour as a general audience program, thereby causing a half-hour “island” of children’s programming for which the commercial limits were not prorated. According to the Licensee, these overages occurred because the Station separated two network children’s programs, inserted in that clock hour a Station’s locally produced children’s program, and aired the network programs in an order different than that intended by the network. Further, the Licensee argued that although the Station exceeded the children’s television commercial limits by 15 seconds during a half-hour children’s program, the total commercial time for the clock hour in which that children’s program aired with the general audience program did not exceed 10.5 minutes. The Licensee also described the procedures it implemented to prevent future violations. 5. With respect to the reported violation of Section 73.3526(e)(11)(i) of the Rules, the Licensee stated in Exhibit 17 that in preparing the Application it discovered that the TV issues/programs lists for the third and fourth quarters of 1997 were missing from the Station’s public file. The Licensee stated that the missing lists were re-created and placed in the public file. III. DISCUSSION 6. Station WATE-TV’s record of exceeding the children’s television commercial limits on 33 occasions during the last license term constitutes a willful and repeated violation of Section 73.670 of the Rules. The 33 instances in which Station WATE-TV exceeded the children’s television commercial limits represent a significant number of violations. The Licensee indicated that the four-second overages resulted from human error. Moreover, it appears that the 15-second overages occurred as a result of inadvertence and/or human error on the part of the Station’s staff, who failed to prorate the commercial limits to half-hour islands of children’s programming. However, the Commission has repeatedly rejected inadvertence and human error as a basis for excusing violations of the children’s television commercial limits.7 Furthermore, corrective actions may have been taken to prevent subsequent violations of the children’s television rules and policies, but that, too, does not relieve the Licensee of liability for the violations which have occurred.8 7. This NAL is issued pursuant to Section 503(b)(1)(B) of the Act. Under that provision, any 6 Children’s Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). 7 See, e.g., LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (MMB 1995); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959 (MMB 1995); Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Rcd 4957 (MMB 1995); Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (MMB 1994). 8 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). Federal Communications Commission DA 08-1105 3 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.9 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.10 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,11 and the Commission has so interpreted the term in the Section 503(b) context.12 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.”13 8. 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 and a base forfeiture amount of $10,000 for violation of Section 73.3526.14 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.”15 9. In this case, the Licensee has acknowledged that it violated the children’s television commercial limits on 33 occasions and that it failed to maintain all of the Station’s TV issues/programs lists in the public file. Considering the record as a whole, 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 10. 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 WATE, G.P. 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 and Section 73.3526(e)(11)(i) of the Commission’s Rules. 11. 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, WATE, G.P. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 12. 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 in the caption above. Payment by check or money order may be mailed to Federal 9 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(1). 10 47 U.S.C. § 312(f)(1). 11 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982). 12 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991). 13 47 U.S.C. § 312(f)(2). 14 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. 15 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 08-1105 4 Communications Commission, at P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank-Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number 021030004, receiving bank: TREAS NYC, BNF: FCC/ACV--27000001 and account number as expressed on the remittance instrument. If completing the FCC Form 159, enter the NAL/Account number in block number 23A (call sign/other ID), and enter the letters “FORF” in block number 24A (payment type code). 13. 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. 14. 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. 15. 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. 20554.16 16. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to WATE, G.P., c/o Brooks Pierce McLendon Humphrey & Leonard, LLP, P.O. Box 1800, Raleigh, North Carolina 27602, and to its counsel, Mark J. Prak, Esquire, Brooks Pierce McLendon Humphrey & Leonard, LLP, P.O. Box 1800, Raleigh, North Carolina 27602. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Division Media Bureau 16 See 47 C.F.R. § 1.1914.