**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | Facility I.D. No. 3661       |
|                                  | *) |                              |
| Nexstar Broadcasting, Inc.       | ** | NAL/Acct. No. 0741420065     |
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| Licensee of Station WTVW(TV)     | *  | FRN: 0009961889              |
|                                  | *) |                              |
| Evansville, Indiana              | ** |                              |
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+----------------------------------+----+------------------------------+

**NOTICE OF APPARENT**

**LIABILITY FOR FORFEITURE**

**Adopted: September 21, 2007 Released: September 28, 2007**

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 Nexstar Broadcasting, Inc. (the "Licensee"), licensee of
    Station WTVW(TV), Evansville, Indiana (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] 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 thirteen thousand
    dollars (\$13,000).

**II. BACKGROUND**

2.  In the Children's Television Act of 1990 ("CTA"), 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.[^4] 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 commercial
    time (a "program-length commercial").[^5]

3.  On March 30, 2005, the Licensee filed its license renewal
    application (FCC Form 303-S) for Station WTVW(TV), (the
    "Application") (File No. BRCT-20050330AKQ). 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
    limitations on commercial matter in children's programming specified
    in Section 73.670 of the Rules. In Exhibit 19, the Licensee
    indicated the Station violated the children's television commercial
    limits on 25 occasions between July 6, 1998 and August 17, 1998. Of
    these commercial overages, one was four seconds in duration, one was
    15 seconds in duration, seven were between 30 and 55 seconds in
    duration, 15 were between one minute and one minute and 45 seconds
    in duration, and one was two minutes in duration. The Licensee
    attributed these overages to a "scheduling irregularity." The
    Licensee maintained that upon identifying the problem, the Station
    implemented procedures to prevent similar errors from occurring in
    the future.

**III. DISCUSSION**

4.  Station WTVW(TV)'s record of exceeding the children's television
    commercial limits on 25 occasions during the last license term
    constitutes a willful and repeated violation of Section 73.670 of
    the Rules. The 25 instances in which Station WTVW(TV) exceeded the
    children's television commercial limits represent a significant
    number of violations. Further, although two overages were 15 seconds
    or less in duration, seven overages were between 30 and 55 seconds
    and a majority of the overages were of even longer duration.
    Specifically, 15 overages were one minute to one minute and 45
    seconds in duration, and one overage was two minutes in duration.
    Overages of this number 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.[^6]
    The only reason cited by WTVW(TV) for the commercial overages
    appears to amount to inadvertence and/or human error, neither of
    which mitigates or excuses such violations.[^7] Although corrective
    actions may have been taken to prevent subsequent violations of the
    children's television rules and policies, this does not relieve
    WTVW(TV) of liability for the violations which have occurred.[^8]

5.  This *NAL* is issued pursuant to Section 503(b)(1)(B) of the Act.
    Under that provision, any 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]

6.  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.[^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]

7.  In this case, an upward adjustment is justified in light of the
    significant number and magnitude of the commercial overages.
    Accordingly, we find that the Licensee is apparently liable for a
    forfeiture in the amount of \$13,000 for its apparent willful and
    repeated violation of Section 73.670.

**IV. ORDERING CLAUSES**

8.  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 Nexstar Broadcasting, Inc. is hereby
    NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
    thirteen thousand dollars (\$13,000) for its apparent willful and
    repeated violation of Section 73.670 of the Commission's Rules.

9.  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,* Nexstar Broadcasting, Inc. SHALL PAY the full amount of the
    proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

10. 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 above. Payment by check or money order may be mailed to
    Federal Communications Commission, at P.O. Box 358340, Pittsburgh,
    Pennsylvania 15251-8340. Payment by overnight mail may be sent to
    Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
    Pennsylvania 15251. Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account number
    911-6229.

11. The response, if any, must be mailed to Office of the Secretary,
    Federal Communications Commission, 445 12^th^ 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.

12. 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.

13. 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]

14. IT IS FURTHER ORDERED that copies of this *NAL* shall be sent, by
    First Class and Certified Mail, Return Receipt Requested, to Nexstar
    Broadcasting, Inc., 909 Lake Carolyn Parkway, Suite 1450, Irving,
    Texas 75039, and to its counsel, Elizabeth Hammond, Esquire, Drinker
    Biddle & Reath LLP, 1500 K Street, N.W., Suite 1100, Washington,
    D.C. 20005-1209.

FEDERAL COMMUNICATIONS COMMISSION

Barbara A. Kreisman

Chief, Video Division

Media Bureau

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

[^5]: *Children's Television Programming*, 6 FCC Rcd 2111, 2118, *recon.
    granted in part*, 6 FCC Rcd 5093, 5098 (1991).

[^6]: *Children's Television Programming, supra,* 6 FCC Rcd at 2117-18.

[^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.*, 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.*, 8 FCC Rcd 5077, 5078 (MMB
    1993); *International Broadcasting Corp.*, 19 FCC 2d 793, 794
    (1969).

[^9]: 47 U.S.C. § 503(b)(1)(B); s*ee 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, 97^th^ 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.

[^16]: *See* 47 C.F.R. § 1.1914.