Federal Communications Commission

Washington, D.C. 20554

In reply refer to: 1800E1-LG

Facility I.D. No. 68883

February 10, 2000

# Released: February 11, 2000

**[CERTIFIED MAIL - RETURN RECEIPT REQUESTED]{.underline}**

United Television, Inc.

Licensee, Station KMSP-TV

11338 Viking Drive

Eden Prairie, MN 55344

Dear Licensee:

This letter constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in
the amount of fourteen thousand dollars (\$14,000), pursuant to Section
503(b) of the Communications Act of 1934, as amended, 47 U.S.C. §
503(b), for repeated violations of the Commission\'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 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 per hour on weekends and 12 minutes per hour 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 associated with a product,
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 Rcd 2111,
2118, *recon. granted in part*, 6 FCC Rcd 5093, 5098 (1991). The
commercial limits became effective on January 1, 1992. *Children\'s
Television Programming*, 6 FCC Rcd 5529, 5530 (1991).

On December 1, 1997, you filed a license renewal application (FCC Form
303-S) for station KMSP-TV, Minneapolis, Minnesota (File No.
BRCT-971201LB). In response to Section III, Question 4 of that
application, you certify that, during the previous license term, station
KMSP-TV failed to comply with the limitations on commercial matter in
children\'s programming specified in Section 73.670 of the Commission\'s
Rules. You refer to Exhibit C of the renewal application, where you
indicate that station KMSP-TV exceeded the children's television
commercial limits on 12 occasions between January 12, 1994, and October
19, 1997. Of those commercial overages, one was one was ten seconds in
duration, one was 15 seconds in duration, two were 30 seconds in
duration and eight were program-length commercials. You attribute the
four conventional overages to inadvertence and human error on the part
of station KMSP-TV's staff, whereas you claim that the program-length
commercials resulted from errors on the part of a program distributor.

Station KMSP-TV\'s record of exceeding the Commission\'s commercial
limits on children\'s television programming on 12 occasions during the
last license term constitutes a repeated violation of Section 73.670 of
the Commission\'s Rules. Accordingly, pursuant to Section 503(b) of the
Communications Act, you are hereby advised of your apparent liability
for forfeiture in the amount of fourteen thousand dollars (\$14,000) for
station KMSP-TV's apparent repeated violation of Section 73.670 of the
Commission\'s Rules. The amount specified was reached after
consideration of 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 noted *supra*, station KMSP-TV exceeded the children\'s television
commercial limits on 12 occasions, including eight 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*, *supra*, 6 FCC Rcd at
2117-18. We note, here, that 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). Given 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 matter.\" *Children\'s
Television Programming, supra*, 6 FCC Rcd 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 Rcd 14012, 14015
n.3. (1997).

The violations occurred, moreover, over an extended period of
approximately three years and nine months. When it delayed the effective
date of Section 73.670 of the Rules from October 1, 1991, 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 Rcd at 5530 n.10. Based on
the information contained in station KMSP-TV's renewal application, it
is apparent that you initially failed to establish an effective program
to ensure compliance with the commercial limits. Further, the reasons
offered for the violations do no excuse or mitigate them. Specifically,
the fact that the eight program-length commercials appear to have
occurred due to errors made by program distributors does not absolve you
of responsibility for those violations. The Commission has consistently
held that a licensee\'s reliance on a program\'s source or producer for
compliance with our children\'s television rules and policies will not
excuse or mitigate violations which do occur. *See, e.g., 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); *WRGB Broadcasting, Inc.*, MMB Admonition dated August
10, 1994. Likewise, the Commission has repeatedly rejected inadvertence
and human error, the only reasons cited for the four remaining
violations, as bases for excusing violations of the children\'s
television commercial limits. *See, e.g., LeSea Broadcasting Corp.
(WHMB-TV)*, 13 FCC Rcd 2751 (1998); *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).

Given all of these considerations, the violation of Section 73.6 70 of
the Commission\'s Rules by station KMSP-TV on 12 occasions, including
eight program-length commercials, warrants a forfeiture in the
above-specified amount of \$14,000. This forfeiture amount is consistent
with the forfeitures assessed in other, similar cases. For example, in
*WPIX, Inc. (WPIX(TV))*, 14 FCC Rcd 9077 (MMB 1999), we assessed a
\$14,000 forfeiture for 14 violations of the commercial limits. The
violations in that case consisted of two overages less than 30 seconds
in duration, two 30-second overages, one three-minute overage, one five
and one-half-minute overage and eight program-length commercials, which
occurred over a period of almost four years. The licensee of station
WPIX(TV) attributed the violations to inadvertence and human error on
the part of the station's staff and a television network and program
distributor/syndicator, and claimed to have taken steps to prevent
future violations. In another case, *WPTT, Inc. (WCWB(TV))*, DA 99-1724
(MMB rel. Aug. 27, 1999), we assessed a \$14,000 forfeiture for eight
violations of the commercial limits, all program-length commercials,
which occurred over a period of more than three years and six months.
There, too, the licensee asserted that inadvertence and human error on
the part of station WCWB(TV)\'s employees and a program syndicator
caused the eight violations, and that corrective measures had been taken
by station WCWB(TV) following each incident to ensure future compliance
with the children\'s television commercial limits. When compared,
several similarities may be drawn between *WPIX, Inc.*, *WPTT, Inc.* and
the instant case. The violations in all three cases occurred over an
extended period of at least three years, and the licensees offered
similar explanations for their respective violations. Furthermore, even
though station WPIX(TV) reported a slightly higher number, and station
WCWB(TV) reported a slightly lower number, of total violations than
station KMSP-TV, all three stations reported the same number of
program-length commercials. For all of these reasons, we find station
KMSP-TV's violations, on balance, to be comparable to those at issue in
*WPIX, Inc.* and *WPTT, Inc.*, and conclude that an appropriate,
comparable forfeiture is in the amount of \$14,000.

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 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, we find you qualified to
remain a Commission licensee and conclude that grant of your application
would serve the public interest, convenience and necessity. Therefore,
the license renewal application of United Television, Inc., for station
KMSP-TV, Minneapolis, Minnesota, File No. BRCT-971201LB, 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

Enclosure

cc: Marvin J. Diamond, Esq.

[^1]: ^?^ 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 Rcd 4695 (1991), *recon. denied*, 7 FCC Rcd 5339
    (1992), *revised*, 8 FCC Rcd 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 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.