Federal Communications Commission Federal Communications Commission Washington, D.C. 20554 DA 99-728 In reply refer to: 1800El-LG April 15, 1999 Released: April 16, 1999 CERTIFIED MAIL - RETURN RECEIPT REQUESTED KTLA Inc. Licensee, KTLA-TV 5800 Sunset Boulevard Los Angeles, CA 90028 Dear Licensee: This letter constitutes a NOTICE OF APP ARENT LIABILITY FOR FORFEITURE in the amount often thousand dollars ($10,000) 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 9f 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. In the Childfen's TeleV!sion 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 amount 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. Accordingly, 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 against "program-length commercials." The Commission defined a "program-length commercial" as "a program assoc-iated with a preduct, in which commercials for that product are aired," and stated that the entire duration of any program-length commercial would be counted as commercial matter for the purpose of the children's television commercial limits. 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 August 3, 1998, you filed an application for renewal oflicense (FCC Form 303-S) for station KTLA-TV, Los Angeles, California (File No. BRCT-980803IM). In response to Section III, 6467 Federal Communications Commission DA 99-728 Question 5 of that application, you certify that, during the previous license term, station KTLA­ TV failed to comply with the limitations on commercial matter in children's programming specified in Section 73.670 of the Commission's Rules. In Exhibit 4 to the renewal application, you indicate that station KTLA-TV violated the children's television commercial limits on four occasions between September 5, 1997, and February 12, 1998. You characterize all four violations as program-length commercials, claim that they occurred as a result of technical and/or human error and describe the corrective measures taken by station KTLA-TV to prevent future ~~~ . Station KTLA-TV's record during the last license term of exceeding the Commission's commercial limits on children's television programming on four occasions constitutes a repeated violation of Section 73.670 of the Commission's Rules. Accordingly, pursuantto Section 503(b) of the Communications Act, KTLA Inc. is hereby advised of its apparent liability for forfeiture in the amount often thousand ($10,000) 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 instances of commercial overages; (2) the length and nature 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 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. 1 As discussed above, station KTLA-TV exceeded the children's television commercial limits on four occasions, all of which were program-length commercials. Overages of this number and nature 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. Children's Television Programming, 6 FCC Red at 2117-18. Congress was particularly concerned about program-length commercials because young children often have difficulty distinguishing between commercials and programs. S. Rep. No. 227, lOlst Cong., 1st Sess. 24 (1989). Given In United States Telephone Ass'n. v. FCC, 28 F3rd 1232 (D.C. Cir. 1994), 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), stating that the guidelines for assessing forfeitures established therein must be subject to public comment to comply with the Administrative Procedure Act. In accordance with the court's decision, the Commission released Forfeiture Guidelines - Notice of Proposed Rulemaking in CJ Docket No. 95-6,-10 FCC Red 2945 (1995). After receiving and considering comments from the public in that proceeding, the Commission adopted Forfeiture Guidelines - Report and Order in CI Docket No. 95-6, 12 FCC Red 17087 (1997) (Forfeiture Guidelines). Forfeiture Guidelines became effective on October 14, 1997. 62 Fed. Reg. 43474 (August 14, 1997). However, with regard to (i) all cases pending when Forfeiture Guidelines was adopted, and (ii) all cases involving "violations arising from facts that occurred before the effective date of th[ at] order," forfeiture amounts are to be assessed "under the case-by-case approach in effect when the violation occurred," in conformity with the standards set out in Section 503 of the Communications Act. Id. at 17108-9. Also under the Forfeiture Guidelines, the Commission retained its "discretion ... to issue forfeitures on a case-by-case basis, under [its] general forfeiture authority contained in Section 503 of the Act. Id. at 17099. 6468 Federal Communications Commission DA 99-728 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 mattet." Children's Television Programming, 6 FCC Red at 2118. Accordingly, the Commission has routinely assessed higher forfeitures for program-length commercials than for a greater number of conventional overages. See, e.g., Channel 39 Licensee, Inc. (WDZL(TV)), 12 FCC Red 14012, 14015 n.3 (1997). The overages occurred, moreover, over a period of five months. When it delayed the effective date of Section 73.670 of the Rules until January 1, 1992, the Commission 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 .... " Children's Television Programming, 6 FCC Red at 5530 n. l 0. Although KTLA Inc. appears to have made an effort to comply with the Commission's children's television commercial limits, that effort apparently was not sufficient in light of the violations described in station KTLA-TV's renewal application. The only reasons KTLA Inc. cites for the violations, which essentially amount to inadvertence and/or human error, do not mitigate or excuse them. The Commission has repeatedly rejected human error and inadvertence as a basis for excusing violations of the children's television commercial limits. See, e.g., LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Red 4977 (MMB 1995); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Red 4959 (MMB 1995); Act Ill Broadcasting License Corp. (WUTV(TV)), 10 FCC Red 4957 (MMB 1995); Ramar Communications, Inc. (K.JTV(TV)), 9 FCC Red 1831 (MMB 1994). Nor do corrective actions which may have been taken to prevent subsequent violations of the children's television rules and policies relieve KTLA Inc. of liability for the violations which have occurred. See, e.g., WHP Television, L.P. (WHP-TV), 10 FCC Red 4979, 4980 _(MMB 19~5); Mountain States Broadcasting, Inc. (KMSB-TV), 9 FCC Red 2545, 2546 (MMB 1994); R&R Media Corporation (WTWS(TV)), 9 FCC Red 1715, 1716 (MMB 1994); KEVN, Inc. (KEVN-TV), 8 FCC Red 5077, 5078 (MMB 1993); International Broadcasting Corporation, 19 FCC 2d 793, 794 (1969). Given all of these considerations, station KTLA-TV's violations of Section 73.670 of the Commission's rules warrants a forfeiture in the above-specified amount of $10,000. In a similar case, Viacom Broadcasting of Miami, Inc. (WBSF-TV), 12 FCC Red 4175 (MMB 1997) (Viacom), we assessed a forfeiture of$10,000 for four violations, all program length commercials, which occurred over a period of one year. The licensee in Viacom attributed its violations to inadvertence and/or human -error, and indicated that station WBSF-TV's procedures were modified and/or its personnel was instructed to prevent recurrence. Compared to station WBSF­ TV in Viacom, station KTLA-TV reported the same number and type of violations. In addition, the licensees in both cases offered the same reasons for their respective violations, and asserted that they took corrective measures to ensure their future compliance with the children's television commercial limits. Though station KTLA-TV's violations occurred over a shorter period of time than those at issue in Viacom, we note that the period of time over which the violations occurred 6469 Federal Communications Commission DA 99-728 is only one of the five criteria we consider in assessing the forfeiture amount. For all of these reasons, we find the violations in the instant case, on balance, comparable to those involved in Viacom. Therefore, we conclude that a comparable forfeiture in the amount of $10,000 is appropriate. You are afforded a period of 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 l .80(f)(3) of the Commission's Rules, 4 7 C.F .R. § l .80(f)(3). Other relevant provisions of Section l.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, we find you qualified to remain a Commission licensee and conclude that grant of your application would serve the public interest, convenience and necessity. Accordingly, the application of KTLA Inc., for renewal of license for station KTLA-TV, Los Angeles, California, (File No. BRCT-980803IM), IS HEREBY GRANTED, subject to the condition that, on December 31, 2006, or by such other date as the Commission may establish in the future under Section 309(j)(14)(A) and (B) of the Communications Act, the licensee shall surrender either its analog or its digital television channel for reallocation or reassignment pursuant to Commission regulations. The channel retained by the licensee will be used to broadcast digital television only after this date. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures cc: R. Clark Wadlow, Esq. 6470