10 FCC Red No. 17 Federal Communications Commission Record DA 95-1806
Before the
FEDERAL COMMUNICATIONS COMMISSION 
WMUnftoa, D.C JOSS4
LETTER 
August 15,1995
Released: August 18,1995
CERTIFIED MAIL - RETURN RECEIPT 
REQUESTED
1800E
WWOR-TV, Inc. 
9 Broadcast Plaza 
Secaucus,NJ 07096
Dear Licensee:
This letter constitutes a NOTICE OF 
APPARENT LIABILITY FOR FORFEITURE in 
the amount of twelve thousand five hundred dollars 
($12,500) 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 Commission's rule 
limiting the amount of commercial matter that may 
be aired during children's programming.
hi 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, 
niter aha, 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 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 
reial"). Children's Television Programming.
6 FCC Red 2111, 2118, recon. granted in part. 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 February 1, 1994, you filed an 
application for renewal of license (FCC Form 303- 
S) for station WWOR-TV, Seeaucu?, NJ (File No. 
BRCT-940201KX). hi a supplement to that 
renewal application you state that during the 
previous license term WWOR-TV did not comply 
with the limitations on commercial matter in 
children's programming specified in Section 73.670 
of the Commission's Rules, hi Exhibit 9(c) to your 
application you state that between February 16, and 
September 6, 1992, WWOR-TV exceeded the 
commercial limitations on children's programming 
during 22 broadcasts of the "Bugs & Daffy Hour" 
cartoon program. Of these 22 "Bugs & Daffy" 
overages, Exhibit 9(c) states that nine were 45 
seconds in length; three were 30 seconds in length; 
and ten were 15 seconds in length. (However, a 
WWOR-TV inter-office memo dated October 8, 
1992, submitted as part of Exhibit 9(c), states that, 
between Jury 1, and September 30,1992, six "Bugs 
and Daffy" cartoon programs exceeded the 
children's television commercial limits by one 
minute.) Exhibit 9(c) further states that, in 
September and October, 1992, the station exceeded 
the commercial limits during nine broadcasts of 
other cartoon programs. Of these nine overages, 
three were 60 seconds in length; one was 45 seconds 
in length; and five were 30 seconds in length. You 
state that these cartoon programs were edited by the 
station, and that the overages occurred because "[i]n 
certain instances, th[e] editing process left the 
program too short, and the remaining time was filled 
with commercial spots", hi this regard, you assert 
that the station "promptly corrected this editing 
problem after identifying it in early October, 1992."
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Federal Communications Commission DA 95-1806
In addition, Exhibit 9(c) lists seven other instances 
where the station exceeded the children's television 
trial limits: one 90-second overage on March
29, 1992; four 15-second overages in September- 
October, 1992; one 30-second overage on 
November 30,1992; and one 15-second overage on 
May 2, 1993. You attribute these overages to 
inadvertence and/or human error. Finally, On 
October 7, 1994, you filed an amendment to your 
renewal application in which you state that the 
station "inadvertently broadcast a 30-second 
commercial involving Exosquad characters in the 
'Exosquad' program" on September 15,1994.1
WWOR-TVs record of exceeding the 
Commission's commercial limits on children's 
television programming on 39 occasions constitutes 
a willful and repeated violation of Section 73.670 of 
the Commission's rules. Accordingly, pursuant to 
Section 503(b) of the Communications Act, 
WWOR-TV, Inc. is hereby advised of its apparent 
liability for forfeiture in the amount of twelve 
thousand five hundred dollars ($12,500) 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(bX2) of the Communications Act, and, 
in particular, the following criteria: (1) the number 
of instances 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 specific 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 programming. See, e.g.. Koplar 
Communications. 8 FCC Red 7884 (1993); 
Independent Communications. Inc.. 8 FCC Red
1 This violation occurred after the expiration 
of the license term for which renewal is sought. 
However, since the station's renewal application is still 
pending, the violation is being considered in connection 
with the other violations listed in that application.
7886 (1993); KXRM Partnership. 8 FCC Red 7890 
(1993). 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)("Policv Statement/Assessing Forfeitures"'), 
which the Commission has used since 1991 as a 
guideline for assessing forfeitures. In United States 
Telephone Assfr-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., they were not inherently tied to 
Policy Statement/Assessing Forfeitures, id. Without 
regard to Policy Statement/Assessing Forfeitures. 
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 
culpability", as required under §503(b)(2)(D) of the 
Communications Act. See Clear Channel 
Television. Inc. (KTrUfTVY). 10 FCC Red 3773 
(1995); Nortfastar Television of Erie. Inc. (WSEE- 
TV). 10 FCC Red 3779 (1995).
The 39 occasions on which WWOR-TV 
exceeded the hourly limits on commercial matter 
during children's programming is a high number of 
violations. Moreover, as many as ten of the 
overages were 60 seconds or greater in duration, and 
one was a program-length commercial. 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 frequency and 
magnitude mean that children have been subjected 
to commercial matter greatly in excess of the limits
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Federal Communications Commission DA 95-1806
contemplated by Congress when it enacted the 
Children's Television Act of 1990. Children's 
Television Programming, supra 6 FCC Red at 2117- 
18.
In addition, when the Commission delayed 
the effective date of Section 73.670 of the Rules 
until January 1, 1992, we stated that "giving the 
additional time to broadcasters and cable operators 
before compliance with the commercial limits is 
required will have the effect of enabling 
broadcasters and cable operators to hone their plans 
to ensure compliance...[and], in the context of any 
enforcement action for violations of the limits, we 
would be unlikely to be sympathetic to claims of 
transitional difficulties." Children's Television 
Programming, supra 6 FCC Red at 5530 a 10. You 
have not proffered any extraordinary transitional or 
other difficulties that would have prevented Station 
WWOR-TV from complying with the children's 
television commercial limitations during the last 
license period. Indeed, you admit that all of the 
cited violations occurred because of human error. 
Further, 31 of the commercial overages described in 
your renewal application occurred solely because 
WWOR-TV station personnel, when faced with 
edited cartoon programs too short to fill their time 
periods, merely filled in all available time with 
commercial matter without any apparent knowledge 
of or concern for the children's television 
rcial limitations. These violations began in
February, 1992, and continued for a period of nine 
months, until October, 1992. Thus, it is apparent 
that WWOR-TV initially did not establish an 
effective program to monitor compliance with the 
children's television commercial limitations. 
Further, the fact that WWOR-TV may now have 
implemented a plan to prevent future commercial 
overages does not relieve the station of liability for 
prior violations. See International Broadcasting 
Corp.. 19 FCC 2d 793 (1969). Consideration of all 
of these factors warrants a forfeiture in the above- 
specified amount of $12,500.
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, there is no suggestion that 
the licensee has acted in bad faith, and we do not 
believe that the violations teflect a deliberate 
disregard for Commission requirements. 
Accordingly, no further action is required in this 
matter.
FEDERAL COMMUNICATIONS COMMISSION
RoyJ. Stewart
Chief, Mass Media Bureau
Enclosure
cc: William R. Richardson, Jr., Esq.
8910