Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | File No. EB-00-IH-0190, GS   |
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| **FISHER BROADCASTING, INC.**    | ) | Station ID No. 56028         |
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| Licensee of Station KIDK-TV,     | * | NAL/Acct. No. 200132080010   |
| Idaho Falls, ID                  |   |                              |
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[NOTICE OF APPARENT LIABILITY FOR FORFEITURE]{.underline}

**Adopted:** December 18, 2000 **Released:** December 19, 2000

By the Chief, Enforcement Bureau:

**I. Introduction**

1.  In this Notice of Apparent Liability for Forfeiture, we find that
    Fisher Broadcasting, Inc. ("Fisher"), licensee of Station KIDK-TV,
    Idaho Falls, Idaho, broadcast an excessive number of minutes of
    commercial matter during children's programming on multiple
    occasions, in apparent willful and repeated violation of Section
    73.670 of the Commission's rules, 47 C.F.R. § 73.670. For the
    reasons below, we conclude that Fisher is apparently liable for a
    forfeiture in the amount of \$25,000.

**II. Background**

2.  Fisher is a Seattle-based communications company. On July 1, 1999,
    Fisher acquired KIDK(TV) from Retlaw Enterprises, LLC. Several
    months after acquiring KIDK(TV), Fisher conducted a review of the
    station's practices and procedures. As part of that review, the
    company audited samples of KIDK(TV)'s program logs. According to
    Fisher, the audit raised concerns about compliance with Section
    73.670 of the Commission's rules, which establishes limits on the
    number of minutes of commercial matter that a television station may
    broadcast during children\'s programming. Specifically, Section
    73.670 states:

> No commercial television broadcast station licensee shall broadcast
> more than 10.5 minutes of commercial matter per hour during children's
> programming on weekends, or more than 12 minutes of commercial matter
> per hour during weekdays.

Fisher immediately directed KIDK(TV)'s management to conduct a
comprehensive internal investigation, including an examination of
commercial logs for the station.

3.  On July 17, 2000, Fisher voluntarily submitted to the Enforcement
    Bureau an analysis of the results of its internal investigation.
    According to Fisher, KIDK(TV), a CBS affiliate, apparently began to
    exceed the commercial limitations in 1997, approximately two years
    before Fisher acquired the station. Fisher states that this
    coincided with a change by CBS in its procedures relating to
    children's programming. Prior to the change, CBS reserved one
    30-second commercial slot in each half-hour children's program for
    local use. Subsequent to the change, CBS formatted each program to
    contain only network advertising. In order to fill the time between
    programs and continue to meet FCC commercial limitations, CBS
    inserted network promotional material. Fisher states that despite
    the change in network practices, KIDK(TV) continued to place local
    commercial spots in network children's programming. In order to
    accommodate the local commercial material, the station deleted the
    network's promotional announcements, a practice to which station
    control room and traffic personnel were accustomed. Although Fisher
    did not initiate the practice at KIDK(TV), the company acknowledges
    that it continued substituting local commercial spots for network
    promotional announcements during network children's programming
    after it acquired the station in July 1999, unaware that the
    practice caused the station to exceed the Commission's commercial
    limits. Fisher discontinued the practice in February 2000 when its
    internal investigation raised compliance questions.

4.  Fisher concedes that Station KIDK(TV) exceeded commercial
    limitations during 38 clock hours over 20 days during the period
    from July 1999 (when Fisher acquired the station) through
    February 2000. In each of twenty-six clock hours, the station
    exceeded commercial limits by 30 seconds; in each of eleven clock
    hour periods, the station exceeded commercial limits by 60 seconds;
    and in one clock hour, the station exceed commercial limits by 90
    seconds. Fisher states that it has since made personnel changes at
    Station KIDK(TV) and has provided instructions to the staff to
    ensure future compliance with Section 73.670. Fisher also states
    that it has implemented measures at its other commercial television
    stations to ensure their compliance with Section 73.670. According
    to Fisher, Station KIDK(TV) has not exceeded the Commission's
    commercial limits since February 2000.

**III. Discussion**

5.  Section 73.670, the text of which appears above, became effective on
    January 1, 1992. The Commission adopted it in response to the
    Children's Television Act of 1990, Pub. L. No. 101-437, 104 Stat.
    996-1000 ("CTA"), *codified at* 47 U.S.C. §§ 303a, 303b, and 394.
    Under the CTA and Section 73.670, the amount of commercial matter
    that a television station may broadcast during children's
    programming is unambiguous. The CTA and Section 73.670 required
    Fisher, during all relevant times, to limit the amount of commercial
    matter that it broadcast during its children's programming to 10.5
    minutes per hour on weekends and 12 minutes per hour on weekdays.

6.  Fisher concedes that it exceeded the Commission's commercial
    limitations at KIDK(TV) on 38 occasions over 20 days spanning a
    seven month period. We find, based on this information, that Fisher
    apparently willfully[^1] and repeatedly violated Section 73.670 of
    the Commission's rules.

7.  The Commission's *Forfeiture Policy Statement,*[^2] which became
    effective October 14, 1997, sets a base forfeiture amount of \$8,000
    for violations of Section 73.670. The base forfeiture amount may be
    adjusted upward or downward, depending upon the existence of
    aggravating or mitigating factors. Although all 38 of Fisher's
    apparent violations took place after October 14, 1997, and are,
    therefore subject to the *Forfeiture Policy Statement*, we believe
    that there exist a number of mitigating factors that should be taken
    into account. These consist of Fisher's disclosure of the
    transgressions immediately upon discovering them as a result of an
    independent analysis of its children's programming conducted after
    its acquisition of KIDK-TV; an erroneous station practice (begun by
    the predecessor licensee) relating to the substitution of local
    commercial spots for network promotional announcements which
    inadvertently caused the broadcast of excessive commercial matter;
    Fisher's implementation of curative measures at KIDK-TV *and* at its
    other commercial television stations; and the lack of any evidence
    of prior adjudicated FCC-related misconduct by Fisher. In addition,
    we have taken into account the sanctions handed down against other
    similarly situated licensees. On balance, we believe a forfeiture in
    the amount of \$25,000 is appropriate.

**IV. Ordering Clauses**

8.  ACCORDINGLY, IT IS ORDERED pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 503(b), and
    Sections 0.111, 0.311 and 1.80 of the Commission's rules, 47 C.F.R.
    §§ 0.111, 0.311 and 1.80, that FISHER BROADCASTING, INC. is hereby
    NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
    twenty-five thousand dollars (\$25,000) for willfully and repeatedly
    violating 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 days of the release of this Notice, FISHER
    BROADCASTING, INC. SHALL PAY to the United States the full amount of
    the proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture. Payment of the
    forfeiture may be made by mailing a check or similar instrument,
    payable to the order of the Federal Communications Commission, to
    the Forfeiture Collection Section, Finance Branch, Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment should note the NAL/Acct. No. referenced
    above. The response, if any, must be directed to Charles W. Kelley,
    Chief, Investigations and Hearings Division, Enforcement Bureau,
    Federal Communications Commission, 445 12^th^ Street, S.W, Room
    3-B443, Washington DC 20554 and MUST INCLUDE the file number listed
    above.

10. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    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
    petitioner'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. Requests for payment of the
    full amount of this Notice of Apparent Liability under an
    installment plan should be sent to: Chief, Credit and Debt
    Management Center, 445 12th Street, S.W., Washington, D.C. 20554.
    *See* 47 C.F.R. § 1.1914.

11. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail \-- Return Receipt Requested, to counsel for Fisher
    Broadcasting, Inc.: Clifford M. Harrington, Esq., Shaw Pittman, 2300
    N Street, NW, Washington, DC 20037-1128.

> **FEDERAL COMMUNICATIONS COMMISSION**
>
> David H. Solomon
>
> Chief, Enforcement Bureau

[^1]: The Commission has held that an act or omission is "willful" if it
    is a conscious act or omission, whether or not there is any intent
    to violate the rule. *Southern California Broadcasting Company*, 6
    FCC Rcd 4387 (1991) (the definition of willfulness contained in 47
    U.S.C. § 312(f) applies equally to 47 U.S.C. § 503).

[^2]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).