**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of Liability of )

)

CHESAPEAKE TELEVISION )

LICENSEE, INC. )

)

Licensee of Television Station )

WBFF(TV), Baltimore, Maryland )

Facility I.D. No. 10758 )

)

for a Forfeiture )

**MEMORANDUM OPINION AND ORDER**

**AND FORFEITURE ORDER**

**Adopted: January 13, 2000 Released: January 14, 2000**

By the Chief, Mass Media Bureau:

1\. The Commission, by the Chief, Mass Media Bureau, acting pursuant to
authority delegated by Section 0.283 of the Commission\'s Rules, 47
C.F.R. § 0.283, has before it for consideration: (i) a Notice of
Apparent Liability in the amount of ten thousand dollars (\$10,000)
issued against Chesapeake Television Licensee, Inc. (Chesapeake
Television), licensee of station WBFF(TV), Baltimore, Maryland,
*Chesapeake Television Licensee, Inc. (WBFF(TV))*, DA 97-292 (MMB
Released Feb. 10, 1997) (*WBFF NAL*); and (ii) Chesapeake Television\'s
Response to *WBFF NAL* filed on March 10, 1997 (Response). The
forfeiture was assessed for apparent repeated violations of Section
73.670 of the Commission\'s Rules, 47 C.F.R. § 73.670, which limits the
amount of commercial matter that may be aired during children\'s
programming.

2\. In *WBFF NAL*, we found that station WBFF(TV)\'s record of exceeding
the Commission\'s commercial limits during the last license term
constituted a repeated violation of Section 73.670 of the Commission\'s
Rules. Accordingly, pursuant to Section 503(b) of the Communications Act
of 1934, as amended, 47 U.S.C. § 503(b), Chesapeake Television was
advised of its apparent liability for forfeiture in the amount of
\$10,000. That amount was reached after consideration of the factors set
forth in Section 503(b)(2) of the Communications Act, and, in
particular, the five criteria consisting of: (1) the number of instances
of commercial overages; (2) the length of each overage; (3) the period
of time over which the overages occurred; (4) whether or not the
licensee established an effective program to ensure compliance; and (5)
the specific reasons that the licensee gave for the overages. Applying
these criteria to the facts of station WBFF(TV)\'s case, we considered
the five violations reported by Chesapeake Television. Those violations
included four program-length commercials, the category of violations
over which Congress expressed particular concern because young children
often have difficulty distinguishing between commercials and programs.
Based on the number and type of violations, we concluded that children
had been subjected to commercial matter greatly in excess of the limits
contemplated by Congress when it enacted the Children\'s Television Act
of 1990.[^1] We noted, moreover, the Commission\'s statement made at the
time it delayed the effective date of Section 73.670 of the Rules from
October 1, 1991, until January 1, 1992, 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 . . . .\"[^2] In doing so, we rejected the reasons offered by
Chesapeake Television \-- human error and inadvertence on the part of
the station staff and program suppliers \-- as bases for excusing
station WBFF(TV)\'s violations of the commercial limits.

3\. In responding to *WBFF NAL*, Chesapeake Television claims the
forfeiture assessed against station WBFF(TV) was the base fine contained
in *Policy Statement, Standards for Assessing Forfeitures*, 6 FCC Rcd
4695 (1991), *recon. denied*, 7 FCC Rcd 5339 (1992), *revised*, 8 FCC
Rcd 6215 (1993) (*Policy Statement/Assessing Forfeitures*), which the
Commission had previously used as a guideline for assessing forfeitures
and which had been set aside by the U.S. Court of Appeals for the
District of Columbia. Chesapeake Television notes that, subsequent to
the court\'s decision, the Commission commenced a rulemaking proceeding
which proposed identical forfeiture guidelines. Because the rulemaking
proceeding was pending at the time *WBFF NAL* was adopted, Chesapeake
Television argues, the proposed imposition of a \$10,000 forfeiture
essentially prejudged the outcome of that proceeding.

4\. Chesapeake Television also contends that the kinds of errors which
occurred at station WBFF(TV) were either inadvertent or beyond the
licensee\'s control and, accordingly, should be considered \"lesser
offenses." To this end, Chesapeake Television contends that the
30-second overage was *de minimis* in nature and does not warrant a
forfeiture. Therefore, Chesapeake Television surmises that we must have
placed undue weight on the four program-length commercials, even though
three of them occurred despite the licensee\'s efforts to comply with
the Commission\'s Rules. Along this line, Chesapeake Television explains
that two of the program-length commercials involved live network feeds
from the Fox Network, while another involved a program in which the
program supplier scheduled its own barter spots with no warning of a
potential problem to station WBFF(TV). In such situations, Chesapeake
Television claims, it would be unfair, and contrary to Congress\'
intent, to impose liability against the licensee. Furthermore,
Chesapeake Television argues, it is well-established that a rule which
allows for monetary penalties against those who violate it must give
fair warning of the conduct the rule prohibits or requires, citing to
*Diamond Roofing v. Occupational Safety and Health Review Commission*,
528 F.2d 645, 649 (5th Cir. 1976); *accord*, *Gates and Fox Co., Inc. v.
Occupational Safety and Health Review Commission*, 790 F.2d 154, 156
(D.C. Cir. 1986). Because Section 73.670 of the Rules does not define or
include the term \"children\'s program-length commercial,\" Chesapeake
Television reasons, it is unfair to construe the rule as giving fair
notice of a prohibition on children\'s program-length commercials and,
therefore, the Commission may not lawfully impose a monetary forfeiture
for them.

5\. Finally, Chesapeake Television maintains, relevant case precedent
does not support the proposed forfeiture. In this regard, Chesapeake
Television contends that the cases cited in *WBFF NAL* fail to justify
the \$10,000 forfeiture, and that two of the cited rulings are on
appeal. Chesapeake Television also asserts that the forfeiture assessed
against station WBFF(TV) is inconsistent with the forfeitures assessed
in other cases contemporaneous with *WBFF NAL*, pointing to *Sullivan
Broadcasting License Corporation (WTAT-TV)*, DA 97-393 (MMB released
Feb. 26, 1997) (\$12,500 forfeiture assessed for 21 violations,
including three program-length commercials) (*Sullivan Broadcasting*);
*Paramount Stations Group, Inc. (WDCA(TV))*, 12 FCC Rcd 14890 (MMB 1997)
(\$15,000 forfeiture assessed for 20 violations, including 11
program-length commercials) (*Paramount*); and *Jefferson-Pilot
Communications Company (WBTV(TV))*, DA 97-468 (MMB released March 4,
1997) (\$20,000 forfeiture assessed for 79 violations)
(*Jefferson-Pilot*). For all of these reasons, Chesapeake Television
concludes, the forfeiture assessed against station WBFF(TV) should be
rescinded.

6\. *Discussion*. 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/Assessing Forfeitures*, 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 CI Docket No.
95-6*, 10 FCC Rcd 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 Rcd 17087
(1997) (*Forfeiture Guideline*s). *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.

7\. In *WBFF NAL*, we did not specifically refer to *Policy
Statement/Assessing Forfeitures* having been set aside by the court of
appeals or the pendancy of the rulemaking proceeding which subjected the
forfeiture guidelines to public comment. However, more importantly, we
applied the same criteria in *WBFF NAL*, *see supra* ¶ 2, as we did in
the other cases which arose after *Policy Statement/Assessing
Forfeitures* had been set aside and pending adoption of *Forfeiture
Guidelines*.[^3] In *WBFF NAL*, we articulated those criteria, which
were developed and applied by the Commission in previous cases, and
stated that they were \"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.\"[^4] As the forfeiture amount in the instant case was determined
in accordance with those criteria in conformity with the standards
established in Section 503 of the Communications Act, Chesapeake
Television is incorrect in asserting that application of the criteria in
the instant case was inappropriate or improper.

8\. We disagree, moreover, with Chesapeake Television\'s argument that
station WBFF(TV)\'s violations did not warrant imposition of a
forfeiture because of the kinds of errors which caused them. While we
considered the explanations given for the violations, we also said that
the Commission has repeatedly rejected human error, inadvertence and a
licensee\'s reliance on a program\'s source or producer for compliance
with our children\'s television rule and policies as bases for excusing
violations of Section 73.670 of the Rules.[^5] Chesapeake Television has
offered no reason why we should accept those same explanations to
mitigate or excuse the violations in this case. Nor does Chesapeake
Television stand correct in asserting that it had no fair notice of the
prohibition on program-length commercials because Section 73.670 does
not include or define that term. Indeed, fair notice of the conduct
required or prohibited by a regulation must be provided before a
violation of the regulation can occur. To determine whether adequate
notice was provided, the Court of Appeals for the District of Columbia
has stated that:

> If, by reviewing the *regulations and other public statements* issued
> by the agency, a regulated party acting in good faith would be able to
> identify, with "ascertainable certainty," the standards with which the
> agency expects parties to conform, then the agency has fairly notified
> a petitioner of the agency's interpretation. \[emphasis added\]

*General Elec. Co. v. United States EPA*, 53 F.3d 1324, 1329 (D.C. Cir.
1995). As a Commission licensee, Chesapeake Television is charged with
having had notice of *Children\'s Television Programming*, 6 FCC Rcd
2111, *recon. granted in part*, 6 FCC Rcd 5093 (1991) (*Children's
Television Programming*), which adopted Section 73.670 of the Rules.[^6]
There, as Chesapeake Television admits, the Commission also defined a
children\'s program-length commercial. In doing so, we note, the
Commission adopted the conclusion set forth in the *Notice of Proposed
Rulemaking*,[^7] which initiated the process of implementing the
Children's Television Act of 1990, that \"any children\'s program found
to be a program-length commercial would count toward the statutory
commercial limits.\"[^8] Given that the children\'s television
commercial limits and policies became effective more than eight months
after their adoption, *see supra* ¶ 2, we believe Chesapeake Television
had ample opportunity to identify and become familiar with them. For
these reasons, we believe Chesapeake Television had fair notice of the
prohibition on children\'s program-length commercials and may lawfully
be fined for them.

9\. Turning to the argument that the Commission accorded it disparate
treatment when assessing the \$10,000 forfeiture against station
WBFF(TV) compared to the forfeitures assessed in *Sullivan
Broadcasting*, *Paramount* and *Jefferson-Pilot*, we reject Chesapeake
Television\'s attempt to make a violation-by-violation comparison with
those cases. The Communications Act does not require the Commission to
attribute monetary liability to each separate violation. *See* *Southern
California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991); *Niagara
Frontier Broadcasting Corp.*, 51 FCC 2d 525 (1975), *aff\'d*, 36 RR2d
1584 (1976), *recon. granted in part*, 38 RR2d 1004 (1976). Further, the
Commission has a great deal of discretion under Section 503 of the
Communications Act in determining forfeiture amounts. *Triple X
Broadcasting Co., Inc.*, 46 RR2d 788, 789 (B/C Cur. 1979), *citing
Brennan Broadcasting Co.*, 25 FCC 2d 400, 405 (1970). Such discretionary
authority holds particular relevance given the different factors
involved in compliance with the children\'s television commercial limits
(*e.g.*, number, type and duration of overages, period of time over
which the violations occurred, extent of compliance program), making it
impossible to devise a precise formula to calculate forfeiture amounts.
The Commission, moreover, \"is not bound to deal with all cases at all
times as it has dealt with some that appear comparable.\" *Triple X
Broadcasting, supra, citing* *Continental Broadcasting Co. v. FCC*, 439
F.2d 580, 583 (D.C. Cir. 1971), *cert. denied*, 403 U.S. 905 (1971).

10\. In any event, contrary to Chesapeake Television\'s assertion, the
monetary forfeiture assessed in *WBFF NAL* is generally consistent with
forfeitures imposed in roughly similar cases, such as *Gannett
Massachusetts Broadcasting, Inc. (WLVI-TV)*, 9 FCC Rcd 1555 (MMB 1994)
(*Gannett*) and *Ramar*, *supra* n.5.[^9] In *Gannett*, a \$10,000
forfeiture was assessed for seven violations of the children\'s
television commercial limits. The violations consisted of one 28-second
overage, one 30-second overage, one one-minute overage and three
program-length commercials, and were attributed to human error. We also
assessed a \$10,000 forfeiture in *Ramar* for station KJTV(TV)\'s
violation of the commercial limits on six occasions. Of those
violations, one was 15 seconds in duration, two were 30 seconds in
duration and three were program-length commercials. The licensee in that
case maintained that the violations resulted from inadvertent staff and
logging errors, and that procedures had been instituted to prevent a
recurrence. When compared, similarities may be drawn between all three
cases, as nearly the same number and type of violations were reported by
each licensee. More specifically, station WBFF(TV) reported a slightly
lower number of total violations, but a higher number of program-length
commercials, than the stations in *Gannett* and *Ramar*. In this regard,
we note that 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 Rcd
14012, 14015 n.3 (1997). Finally, all three licensees offered virtually
the same reasons for their violations. In view of the foregoing
considerations, we believe that a forfeiture in the amount of \$10,000
is not only appropriate for the violations reported by station WBFF(TV),
but also consistent with Commission policy. Given the totality of the
facts and circumstances in this case, we see no reason to disturb our
decision.

11\. Accordingly, IT IS ORDERED THAT Chesapeake Television Licensee,
Inc.\'s Response to *Chesapeake Television Licensee, Inc. (WBFF(TV))*,
12 FCC Rcd 12444 (MMB 1997) IS DENIED. IT IS FURTHER ORDERED THAT,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended, 47 U.S.C. § 503(b), Chesapeake Television Licensee, Inc.
FORFEIT to the United States the sum of ten thousand dollars (\$10,000)
for repeated violations of Section 73.670 of the Commission\'s Rules, 47
C.F.R. §73.670. Payment of the forfeiture may be made by mailing to the
Commission a check or similar instrument payable to the Federal
Communications Commission. With regard to this forfeiture proceeding,
Chesapeake Television Licensee, Inc. may take any of the actions set
forth in Section 1.80 of the Commission\'s Rules, 47 C.F.R. § 1.80, as
summarized in the attachment to this Memorandum Opinion and Order.

FEDERAL COMMUNICATIONS COMMISSION

Roy J. Stewart

Chief, Mass Media Bureau

[^1]: ^?^ Pub. L. No. 101-437, 104 Stat. 996-1000, *codified at* 47
    U.S.C. Sections 303a, 303b and 394.

[^2]: ^?^ *Id.* at 5530 n.10.

[^3]: ^?^ *See, e.g., Centennial Communications, Inc. (WGNT(TV), DA
    97-197 (MMB 1997); Act III Broadcasting License Corp. (WUTV(TV))*,
    10 FCC Rcd 4957 (MMB 1995), *aff\'d*, 13 FCC Rcd 10099 (MMB 1997);
    *UTV of San Francisco (KBHK-TV)*, 10 FCC Rcd 10986 (1995).

[^4]: ^?^ *WBFF NAL*, ¶ 4.

[^5]: ^?^ *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 lll Broadcasting License Corp.
    (WUTV(TV)), 10 FCC Rcd 4957 (MMB 1995), aff\'d,* 13 FCC Rcd 10099
    (MMB 1997) (*Act III Broadcasting*); *Ramar Communications, Inc.
    (KJTV(TV)), 9 FCC Rcd 1831 (MMB 1994), aff\'d,* 12 FCC Rcd 20490
    (MMB 1997) (*Ramar*); *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). These
    cases were also cited in *WBFF NAL*. At the time we issued *WBFF
    NAL*, two of those cases, *Act III Broadcasting* and *Ramar*, were
    on appeal. Our decisions in those cases have since been affirmed.

[^6]: ^?^ We note that the Federal Register citation for *Children\'s
    Television Programming* follows the text of Section 73.670 of the
    Rules.

[^7]: ^?^ 5 FCC Rcd 7199 (1990).

[^8]: ^?^ *Children\'s Television Programming*, 6 FCC Rcd at 2118.

[^9]: ^?^ In *WBFF NAL*, we cited to *Gannett* and *Ramar* in support of
    our assessment of a \$10,000 forfeiture against station WBFF(TV).