DA 95-1349 Federal Communications Commission Record 10 FCC Red No. 13
Before the
Federal Communications Commission 
Washington, D.C. 20554
LETTER
Released: June 23,1995 
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Ponce-Nicasio Broadcasting
Licensee, KCMY(TV)
1029 K Street
Suite 23
Sacramento, CA 95814
Dear Licensee:
This letter constitutes a NOTICE OF APPARENT LI 
ABILITY FOR FORFEITURE in the amount of twenty 
thousand dollars ($20.000) pursuant to Section 503(b) of 
the Communications Act of 1934, as amended, 47 U.S.C. 
§503(b), under authority delegated to the Chief of the Mass 
Media Bureau by Section 0.283 of the Commission's Rules, 
47 C.F.R. §0.283, for repeated violations of the Commis 
sion'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 chil 
dren's programming to 10.5 minutes on weekends and 12 
minutes on weekdays. The Commission also reaffirmed and 
clarified its long-standing policy 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"). Chil 
dren's Television Programming, 6 FCC Red 2111, 2118, 
recon. granted in pan, 6 FCC Red 5093, 5098 (1991). These 
commercial limitations became effective on January 1, 
1992. Children's Television Programming, 6 FCC Red 5529, 
5530 (1991).
On July 30, 1993, you filed an application for renewal of 
license (FCC Form 303-S) for Station KCMY(TV), Sac 
ramento, CA (File No. BRCT-930730KK). In a supplement
to FCC Form 303-S you indicated that during the previous 
license term KCMY(TV) had failed to comply with the 
limitations on commercial matter in children's program 
ming specified in Section 73.670 of the Commissions 
Rules. In Exhibit 2 to your application you revealed that 
from January 26, 1992, to July 26, 1992, KCMY(TV) ex 
ceeded the commercial limits on children's programming 
on 27 occasions. All 27 instances were program-length 
commercials involving a program entitled "Quigley's Vil 
lage". You state that KCMY(TV) did not add any commer 
cial matter to "Quigley's Village", but did broadcast "some 
of the commercial messages included by the barter distri 
butor." You further stated that KCMY substituted public 
service announcements and station identification an 
nouncements for the barter distributor's commercial mes 
sages where "program characters promoted the purchase of 
Quigley's Village memberships", but initially did not delete 
other commercial messages which promoted "Quigley's 
Village" products because of the station's belief that it "was 
not required where program characters were not involved 
in promoting" the sale or purchase of program-related 
products. You characterize this as "a single, recurring er 
ror... in 27 episodes of 'Quigley's Village....'" You further 
state that, upon learning in July, 1992. that a question had 
been raised concerning the "Quigley's Village" member 
ship messages, KCMY(TV) modified its policy and deleted 
all such announcements. Finally, you state that your error 
in broadcasting these program-length commercials was un 
intentional, and that KCMY(TV) has instituted procedures 
to prevent any recurrence.
During the license term in question, after the children's 
programming commercial limitations became effective, you 
exceeded those limitations on 27 occasions, all program- 
length commercials. This record constitutes a repeated vio 
lation of the Commission's rules. Accordingly, pursuant to 
Section 503(b) of the Communications Act,- Ponce-Nicasio 
Broadcasting is hereby advised of its apparent liability for 
forfeiture in the amount of twenty thousand dollars 
($20.000) for its apparent repeated violation of Section 
73.670 of the Commission's Rules. The amount specified 
was reached after consideration of the factors set forth in 
Section 503(b)(2) of the Communications Act, and, in 
particular, the following criteria: (1) the number of in 
stances of commercial overages; (2) the length 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 spe 
cific reasons that the licensee gives for the overages. These 
criteria were considered by the Commission in earlier cases 
when determining "the appropriate forfeiture amounts for 
violations of the commercial limits during children's pro 
gramming. See, e.g., Koplar Communications, 8 FCC Red 
7884 (1993); Independent Communications, Inc., 8 FCC Red 
7886 (1993); KXRM Partnership, 8 FCC Red 7890 (1993). 1
The 27 occasions on which KCMY(TV) exceeded the 
hourly limits on commercial matter during children's pro 
gramming is a high number of violations. Moreover, all 27
1 A recent decision by the U.S. Court of Appeals for the 
District of Columbia set aside Policy Statement - Standards for 
Assessing Forfeitures, 6 FCC Red 4695 (1991), recon. denied, 7 
FCC Red 5339 (1992), revised, 8 FCC Red 6215 (1993) ("Policy 
Statement/Assessing Forfeitures"), which the Commission has 
used since 1991 as a guideline for assessing forfeitures. In United 
States Telephone Ass'n. v. FCC, 28 F3rd 1232 (D.C. Cir. 1994),
the court indicated that the guidelines established in Policy 
Statement/Assessing Forfeitures, supra, must be subject to public 
comment to comply with the Administrative Procedure Act. 
The Commission will act on the Court's Order in a separate 
proceeding. While the criteria considered in connection with 
commercial overages in children's programming were developed 
in cases decided under Policy Statement!Assessing Forfeitures, id.,
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10 FCC Red No. 13 Federal Communications Commission Record DA 95-1349
occurrences were program-length commercials. Congress 
was particularly concerned about program-length commer 
cials because young children often have difficulty distin 
guishing between commercials and programs. S. Rep. No. 
227, 101st Cong., 1st Sess. 24 (1989). Overages of this 
frequency and magnitude mean that children have been 
subjected to commercial matter greatly in excess of the 
limits contemplated by Congress when it enacted the Chil 
dren's Television Act of 1990. Children's Television Pro 
gramming, supra 6 FCC Red at 2117-18.
Further, your assertion that KCMY(TV) deleted the 
barter distributor's commercial messages where program 
characters promoted "Quigley's Village" products, but did 
not delete the other commercial messages which promoted 
"Quigley's Village" products because of the station's belief 
that it "was not required where program characters were 
not involved", does not excuse or mitigate the violation. 
The Commission's policy on "host-selling" does, in fact, 
prohibit the use of children's program characters to pro 
mote products or deliver commercial messages during the 
program in which the character(s) appear. Action for Chil 
dren's Television, 50 FCC 2d 1, 8, 16-17 (1974). However, 
although related, the Commission's host-selling policy is 
separate from and in addition to the Commission's policy 
with regard to program-length commercials directed at 
children. Children's Television Programming, supra 6 FCC 
Red at 2118, 2127 n.147. In Children's Television Program 
ming, id. at 2117-18, the Commission specifically and un 
equivocally defined a program-length commercial as "a 
program associated with a product in which commercials 
for that product are aired". As the Commissionp stated in 
that Report and Order, this definition "is clear, easy to 
understand and apply, and narrowly tailored." Id. at 2118. 
Further, the distinction between program length commer 
cials and host selling is clear and simple: program length 
commercials involve commercials for program-related pro 
ducts during the related program; host selling involves 
program-related characters promoting any product during 
the character(s)' program. In the absence of extraordinary 
difficulties or circumstances, a licensee's assertion that it 
did not understand the Commission's children's television 
policies does not relieve that licensee of liability for for 
feiture for violation of those policies. WKBD, Inc., 8 FCC 
Red 5079 (1993); Channel 12 of Beaumont, Inc. (KBMT- 
TV), 9 FCC Red 1825 (1994).
Further, although KCMY(TV) appears to have made 
some effort to comply with the Commission's children's 
television rules and policies, that effort clearly was not 
sufficient or effective in light of the violations described in 
this letter. Finally, the fact that now you may have imple 
mented a plan to prevent future violations of the Commis 
sion's children's television rules and policies does not 
relieve you of liability for prior violations. International 
Broadcasting Corp., 19 FCC 2d 1969). Consideration of all 
of these factors warrants a forfeiture in the above-specified 
amount of $20,000.
Notwithstanding the substantial nature of the violations 
described here and the severity with which we regard 
them, there is no suggestion that the licensee has acted in 
bad faith, and we do not believe that the violations reflect a 
deliberate disregard for Commission requirements. Accord 
ingly, we do not believe that these violations raise a sub 
stantial and material question of fact as to whether grant of 
the license renewal application for Station KCMY(TV) 
would serve the public interest, convenience and necessity. 
Therefore, the license renewal application of Ponce-Nicasio 
Broadcasting, File No. BRCT-930730KK, for Station 
KCMY(TV), Sacramento, CA, IS HEREBY GRANTED for 
a term to end on DECEMBER 1, 1998.
With respect to this forfeiture proceeding, you are af 
forded a period of thirty (30) days from the date of this 
letter "to show, in writing, why a forfeiture penalty should 
not imposed or should be reduced, or to pay the forfeiture. 
Any showing as to why the forfeiture should not imposed 
or should be reduced shall include a detailed factual state 
ment 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.
FEDERAL COMMUNICATIONS COMMISSION
Roy J. Stewart
Chief, Mass Media Bureau
Enclosure
cc: William H. Fitz, Esq. 
Robert L. Pettit. Esq.
they were not inherently tied to Policy Statement/Assessing For 
feitures, id. Without regard to Policy Statement/Assessing For 
feitures, id., we continue to believe that 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 cul 
pability", as required under §503(b)(2)(D) of the Communica 
tions Act. See Clear Channel Television, Inc. (KTTU(TV)), 10 
FCC Red 3773 (adopted March 10, 1995, released April 5, 1995, 
FCC 95-108); Northstar Television of Erie, Inc. (WSEE-TV), 10 
FCC Red 3779 (adopted March 10, 1995, released April 5, 1995, 
FCC 95-109)
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