**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

)

In the Matter of Liability of )

)

NORTH CAROLINA )

BROADCASTING PARTNERS )

)

Licensee of Television Station )

WCCB(TV), Charlotte, North Carolina )

Facility I.D. No.49157 )

)

for Forfeiture )

**MEMORANDUM OPINION AND ORDER**

**AND FORFEITURE ORDER**

**Adopted: February 13, 2001 Released: March 7, 2001**

By the Commission:

1\. The Commission has before it for consideration the following
documents: (1) a Notice of Apparent Liability for forfeiture in the
amount of twenty-five thousand dollars (\$25,000) issued against North
Carolina Broadcasting Partners (North Carolina BP), licensee of station
WCCB(TV), Charlotte, North Carolina, in *North Carolina Broadcasting
Partners (WCCB(TV)),* 13 FCC Rcd 3450 (1997) (*WCCB NAL*); and (2) the
Response to Notice of Apparent Liability and Petition for
Reconsideration (Response) filed by North Carolina BP on October 22,
1997, requesting reduction of the forfeiture. The forfeiture was
assessed for station WCCB(TV)'s apparent repeated violation 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.[^1]

2\. In *WCCB NAL*, we found that station WCCB(TV)\'s record of exceeding
the children's television commercial limits on 71 occasions 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), North
Carolina BP was advised of its apparent liability for forfeiture in the
amount of \$25,000. 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.[^2] Applying these criteria to the facts of station
WCCB(TV)\'s case, we stated that not only was the total number of
violations very high, but noted that 14 of the commercial overages were
program-length commercials.[^3] Given this number and the nature of the
station's overages, as well as the two-year period over which they
occurred, 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.[^4] In reaching that
conclusion, we rejected the reasons North Carolina BP gave for the
violations \-- human error and inadvertence \-- as bases for excusing
its station's violations of the commercial limits. We also said that,
though it implemented a plan to prevent future violations of the
children\'s television commercial limitations, this did not relieve
North Carolina BP of liability for the violations which had occurred.

3\. In its Response, North Carolina BP contends that we erred in finding
that six incidents described in station WCCB(TV)'s renewal application
constituted program-length commercials. Those incidents involved a
commercial for a Kids Fair, an annual event sponsored by station
WCCB(TV), which: (1) mentioned the appearance of an "X-Men" character
and a "Mighty Morphin Power Rangers" ("MMPR") comic book illustrator at
the fair and included video clips from the \"X-Men\" and \"MMPR\"
programs; and (2) aired during or adjacent to the "X-Men" or "MMPR"
programs.[^5] In support of its contention, North Carolina BP reiterates
its previous arguments, which we rejected in *WCCB NAL*. Specifically,
North Carolina BP maintains that the Kids Fair commercial did not
promote any product associated with either program, and, therefore, did
not convert the programs into program-length commercials. In addition,
North Carolina BP claims the Commission has previously held that a
product is associated with a program only when the link between the two
is "clear and obvious." As the commercial at issue here was intended to
promote the Kids Fair itself, North Carolina BP argues that the mere
appearance of a character from the "X-Men" and an illustrator from the
"MMPR" at the Kids Fair was insufficient to associate that event with
the programs, and thereby create the requisite clear and obvious link
between the two. By way of contrast, North Carolina BP distinguishes the
Kids Fair incidents

from the program-length commercials described in *UTV of San Francisco
(KBHK-TV)*, 10 FCC Rcd 10986 (1995), which involved commercials for
"Disney on Ice," featuring the characters Chip and Dale, that aired
adjacent to the "Chip and Dale's Rescue Rangers" program. Along this
line, North Carolina BP states that Disney sponsored both "Disney on
Ice" and the "Chip and Dale's Rescue Rangers" program, and that Chip and
Dale were featured skaters in "Disney on Ice," which promoted them and
numerous other Disney characters. Accordingly, North Carolina BP
concludes, "unlike the link between Kids Fair and 'X-Men' and 'Power
Rangers' \['MMPR'\], the link between 'Chip and Dale's Rescue Rangers'
and Disney's ice show is 'clear and obvious.'"[^6] Even if the six Kids
Fair incidents were program-length commercials, North Carolina BP says
that we miscounted the total number of program-length commercials
reported in station WCCB(TV)'s renewal application as 14 rather than 13.
Upon our *de novo* review, we find that one program-length commercial
was inadvertently counted twice, so that the correct number of
program-length commercials is 13, and the total number of violations for
the purpose of assessing the appropriate sanction in this case is 70.
*See infra* ¶ 10.

4\. In addition, North Carolina BP challenges the fine imposed on
station WCCB(TV) as disproportionate to fines that the Commission has
imposed on other licensees for substantially similar conduct. To
illustrate, North Carolina BP contrasts the \$25,000 forfeiture assessed
against station WCCB(TV) for its violations of the children's television
commercial limits with *BSP Broadcasting, Inc. (KJTL-TV)*, 9 FCC Rcd
1829 (MMB 1994), *aff'd*, DA 99-1545 (MMB released August 6, 1999) (*BSP
Broadcasting*), where a \$15,000 forfeiture was assessed for 70
violations of the commercial limits, and *Koplar Communications
(KPLR-TV)*, 8 FCC Rcd 7884 (1993) (*Koplar*), where a \$30,000
forfeiture was assessed for 197 violations of the commercial limits,
almost three times the number of violations reported by station
WCCB(TV). This precedent, North Carolina BP insists, demonstrates that
the Commission has treated station WCCB(TV) more harshly than other
stations. Further, North Carolina BP maintains that such disparate
treatment has repeatedly been declared illegal.

5\. North Carolina BP also believes that, in assessing the forfeiture
amount, the Commission failed to give appropriate weight to the fact
that 54 of the 70 violations occurred \"within two years after the new
children\'s programming limits were enacted, a period of time during
which broadcasters were still familiarizing themselves with the new
rules and learning how to comply.\" North Carolina BP alleges that the
Commission\'s failure to consider the timing of the overages as a
mitigating factor contradicts precedent wherein the Commission
purportedly granted, without the imposition of any monetary forfeiture,
the license renewals of other stations reporting overages which occurred
soon after the children\'s programming rules were enacted. In declining
to fine those broadcasters, North Carolina BP states, the Commission
\"recognized that a period of trial and error is to be expected when a
new rule is promulgated and that, therefore, it should be lenient
regarding early violations of the children\'s programming limits.\"[^7]
As a similarly-situated

party, North Carolina BP argues that it should be granted leniency for
the 54 violations reported by station WCCB(TV) which occurred during \"a
trial and error period.\" North Carolina BP further contends that if one
overage can be excused because a broadcaster is still learning to comply
with a new rule, then all broadcasters learning to comply should be
similarly excused, regardless of the number of overages. For all of
these reasons, North Carolina BP concludes that the fine assessed
against its station is erroneous and should be reduced.

DISCUSSION

6\. As an initial matter, we believe we correctly concluded that the
Kids Fair incidents described in station WCCB(TV)'s renewal application
constituted program-length commercials. In establishing its policy on
program-length commercials, the Commission stated that it was addressing
"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."[^8] Accordingly, in interpreting and applying
the Commission\'s policies regarding program-length commercials, we are
concerned about and dealing with the cognitive abilities of young
children, not adults.[^9] To this end, we have consistently held that,
where a commercial announcement is primarily for a product otherwise
unrelated to a program, but that announcement also includes references
to or offers of products which are related to the program, than the
broadcast of that commercial announcement during or adjacent to the
program to which the included products relate will render that program a
program-length commercial.[^10]

7\. In *WCCB NAL*, we acknowledged that the product directly promoted in
the commercial at issue was the Kids Fair, but determined that the
commercial also included a reference to another product, the appearances
of the "X-Men" and the "MMPR" illustrator as attractions at the fair. In
reaching that determination, we stated that:

> \(i\) the appearance/performance by the \"X-Men\" character and the
> \"MMPR\" illustrator was clearly presented in the advertisement as one
> of the attractions at the \"Kids Fair;\" (ii) the appearance by the
> \"X-Men\" character and the \"MMPR\" illustrator and the inclusion of
> clips from the programs in the advertisement clearly were intended to,
> and did, promote their appearance at the \"Kids Fair;\" and (iii) any
> appearance/performance by an \"X-Men\" character and an \"MMPR\"
> illustrator is clearly related to the programs \"X-Men\" and
> \"MMPR."[^11]

In view of these same facts, we disagree with North Carolina BP's
contention that the link which it concedes existed between the Kids Fair
and "X-Men" and "MMPR" programs was not clear and obvious, particularly
when the Kids Fair commercial both mentioned the appearance of the
"X-Men" character and "MMPR" illustrator as an attraction at the fair
and included video clips from the programs. Unlike North Carolina BP,
moreover, we find no meaningful distinction between the circumstances
resulting in the Kids Fair/"X-Men"/"MMPR" program-length commercials,
and those resulting in the "Disney on Ice"/Chip and Dale program-length
commercials described in *UTV of San Francisco*. Both cases involved
commercials for events which explicitly mentioned the
appearance/performance of program-related characters/illustrator as
attractions at the events. In addition, the commercials in each case ran
during or adjacent to the related programs. Based on these
circumstances, where there is clear potential for confusion in the minds
of young children, the Commission\'s program-length commercial policy is
applicable. Therefore, we believe we acted appropriately and consistent
with Commission precedent in finding that the broadcast of the Kids Fair
commercial during or adjacent to the "X-Men" or "MMPR" programs resulted
in program-length commercials.

8\. We also disagree with the proposition that North Carolina BP is
entitled to leniency because 54 of the 70 violations occurred within two
years after the children's television commercial limits were adopted.
North Carolina BP cites no cases or authority in support of its argument
that the Commission has previously excused violations based on \"a trial
and error\" period *vis-a-vis* Section 73.670 of the Rules. Rather, the
Commission has consistently considered *all* violations of the
children\'s television commercial limits occurring *on and after*
January 1, 1992, the effective date of Section 73.670, to determine the
appropriate sanction in a given case.[^12] Therefore, we are not
persuaded by North Carolina BP's argument that any overages occurring
during \"a trial and error period\" after Section 73.670\'s effective
date should be excused because broadcasters were still learning to
comply with that new rule. In fact, licensees were afforded an
additional period of time in which to familiarize themselves with
Section 73.670 and hone their compliance plans when we delayed the
effective date of that rule from October 1, 1991, to January 1,
1992.[^13] At that time, we noted that, in the context of enforcement
action for violations of the limits, the Commission would be unlikely to
be sympathetic to claims of transitional difficulties. For these
reasons, we rejected a similar argument proffered in *Koplar*, stating
that "the fact that the majority of your commercial overages occurred at
the beginning of the period during which the commercial limits went into

effect does not mitigate the extremely high number of commercial
overages."[^14] In light of these considerations, we likewise reject the
two year \"trial and error period\" suggested by North Carolina BP as a
basis for excusing the 54 overages reported by station WCCB(TV), which
occurred regularly beginning April 1, 1993, through and including
September 17, 1993.[^15] We conclude, moreover, that our consideration
of the 54 overages reported by North Carolina BP was consistent with
Commission practice and policy.

9\. Regarding North Carolina BP's argument that the Commission accorded
it disparate treatment when assessing the \$25,000 forfeiture against
station WCCB(TV) as compared to the \$15,000 forfeiture assessed against
station KJTL-TV in *BSP Broadcasting* and the \$30,000 forfeiture
assessed against station KPLR-TV in *Koplar*, we reject North Carolina
BP's attempt to make a violation-by-violation comparison with those
cases. As stated in ¶ 3, *supra*, we note that the total number of
violations for the purpose of assessing the appropriate sanction in this
case is 70 as opposed to 71. Even with the corrected number of
violations in this case, we still believe the \$25,000 forfeiture
assessed for station WCCB(TV)'s 70 violations of the commercial limits
is proportionate to, and not inconsistent with, the forfeitures assessed
against stations KJTL-TV and KPLR-TV. In *BSP Broadcasting*, station
KJTL-TV reported 70 violations of the commercial limits, which occurred
over a nine-month period. The violations were attributed to
inadvertence, human error and commercial make-goods, and the licensee
stated that it had adopted procedures to ensure future compliance. In
*Koplar*, station KPLR-TV reported 197 violations of the commercial
limits, which occurred over approximately an eight-month period. The
violations in that case were essentially attributed to human error, and
the licensee described the steps it had taken to prevent violations from
occurring in the future. When compared, it appears that stations
WCCB(TV), KJTL-TV and KPLR-TV offered similar reasons for their
respective violations, and that the licensee in each case claimed to
have implemented procedures to ensure future compliance with the
commercial limits. Unlike station WCCB(TV), however, stations KJTL-TV
and KPLR-TV reported no program-length commercials.

10\. The Commission has routinely assessed higher forfeitures for
program-length

commercials than for a greater number of conventional overages.[^16] We
find that although the total number of program-length commercials for
the purpose of assessing the appropriate sanction in this case is 13 as
opposed to 14, the \$25,000 forfeiture against station WCCB(TV) is still
warranted. The fact that there is one less program-length commercial
than previously counted does not justify a decrease in the forfeiture
amount assessed against station WCCB(TV), particularly in light of the
many program length commercials reported. Because of its program-length
commercials, station WCCB(TV) was assessed a higher forfeiture than
station KJTL-TV for the same number of total violations, and a similarly
significant forfeiture amount as compared to station KPLR-TV, which
reported a higher number of total violations. Furthermore, we believe
that the instant case is similar to another case in which the Commission
assessed a \$25,000 forfeiture, *KXRM Partnership, see supra* n.2.
There, station KXRM-TV reported 87 violations of the commercial limits,
which occurred over a period of approximately eight months. Like North
Carolina BP, the licensee of station KXRM-TV attributed the violations
to inadvertence and human error and stated that it had implemented a
program to ensure compliance with the commercial limits. However, unlike
station WCCB(TV), station KXRM-TV reported no program-length
commercials, albeit it did have a higher number of total violations than
station WCCB(TV). In view of *BSP Broadcasting*, *Koplar* and *KXRM
Partnership*, and given the totality of the facts and circumstances in
this case, we continue to believe that the \$25,000 forfeiture assessed
for station WCCB(TV)'s violations was appropriate and consistent with
Commission policy.

11\. The Communications Act does not require the Commission to attribute
monetary liability to each separate violation.[^17] Further, the
Commission has a great deal of discretion under Section 503 of the
Communications Act in determining forfeiture amounts.[^18] 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.\"[^19] Therefore, we see no reason to disturb our decision
in *WCCB NAL*.

12\. Accordingly, IT IS ORDERED THAT the request of North Carolina
Broadcasting Partners for reduction of the forfeiture assessed in *North
Carolina Broadcasting Partners (WCCB(TV)),* 13 FCC Rcd 3450 (1997) IS
DENIED.

13\. IT IS FURTHER ORDERED THAT, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. § 503(b), North
Carolina Broadcasting Partners, licensee of station WCCB(TV), Charlotte,
North Carolina, SHALL FORFEIT to the United States the sum of
twenty-five thousand (\$25,000) for willful and 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 at
the address indicated in the attachment to this Memorandum Opinion and
Order and Forfeiture Order.

14\. IT IS FURTHER ORDERED That the Mass Media Bureau send by Certified
Mail -Return Receipt Requested - copies of the Memorandum Opinion and
Order and Forfeiture Order to North Carolina Broadcasting Partners.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

[^1]: ^?^ *See also* *Children\'s Television Programming*, 6 FCC Rcd
    2111, 2118 (1991) (*Children's Television Programming*), *recon.
    granted in part*, 6 FCC Rcd 5093, 5098 (1991) (*Children's
    Television Programming Recon*.).

[^2]: ^?^ *See, e.g., Stainless Broadcasting Co. (WICZ-TV)*, 10 FCC Rcd
    9961 (1995); *KXRM Partnership (KXRM-TV)*, 8 FCC Rcd 7890 (1993)
    (*KXRM Partnership*).

[^3]: ^?^ The remaining 57 violations consisted of 18 overages less than
    30 seconds in duration, 23 overages 30 seconds or longer but less
    than one minute in duration, 10 overages one minute or longer but
    less than one and one-half minutes in duration, four overages one
    and one-half minutes in duration; one overage two minutes in
    duration and one overage two and one-half minutes in duration.

[^4]: ^?^ Pub. L. No. 101-437, 104 Stat. 996-1000, *codified at* 47
    U.S.C. Sections 303a, 303b and 394.

[^5]: ^?^ To avoid being considered a program-length commercial,
    commercial matter related to a children\'s program must be separated
    from that program \"by intervening and unrelated program material.\"
    *Children\'s Television Programming Recon.*, 6 FCC Rcd at 5099. To
    prevent confusion, the Commission \"specifically note\[d\] that
    intervening commercial matter will not suffice as a separation
    device.\" *Id*. at 5099 n.89.

[^6]: ^?^ Response at p.4.

[^7]: ^?^ Response at p.6.

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

[^9]: ^?^ *See, e.g., Scripps Howard Broadcasting Company (KNXV-TV)*, 9
    FCC Rcd 2547 (MMB 1994), *aff\'d,* 12 FCC Rcd 19504, 19505 (MMB
    1997) (*Scripps Howard*).

[^10]: ^?^ *See, e.g., Scripps, id.*; *Ramar Communications, Inc.
    (KJTV(TV))*, 9 FCC Rcd 1831 (1994); *Quad Cities Television
    (KLJB-TV)*, 9 FCC Rcd 1711 (1994).

[^11]: ^?^ *WCCB NAL*, 13 FCC Rcd at 3451-2.

[^12]: ^?^ *See*, *e.g.*, *Jefferson-Pilot Communications Company
    (WBTV(TV)),* 12 FCC Rcd 2526 (1997) (79 overages occurring between
    January 18, 1992, and August 19, 1995, considered in assessing
    \$20,000 forfeiture); *UTV of San Francisco,* 10 FCC Rcd 10987 (218
    overages occurring between January 2, 1992, and May 7, 1993,
    considered in assessing \$40,000 forfeiture); *Scripps Howard
    Broadcasting Co. (KNXV-TV)*, 9 FCC Rcd 2547 (1994) (five overages
    occurring in January and February 1992, considered in assessing
    \$10,000 forfeiture); and *Paramount Stations of Houston, Inc.
    (KTXH-TV)*, 9 FCC Rcd 140 (1993) (132 overages occurring in 1992
    considered in assessing \$80,000 forfeiture).

[^13]: ^?^ *See Children\'s Television Programming*, 6 FCC Rcd 5529,
    5530 n.10 (1991).

[^14]: ^?^ 8 FCC Rcd at 7885.

[^15]: ^?^ In *Children\'s Television Programming*, the Commission
    specifically recognized that licensees may experience \"occasional
    emergency scheduling change\[s\],\" which would be taken into
    consideration in determining whether \"extenuating circumstances\"
    mitigated any resulting children\'s television commercial limits
    violations. 6 FCC Rcd at 2126 n.123. On reconsideration, the
    Commission affirmed this policy, stating that \"where the facts
    demonstrate that a slight overage is caused by a last-minute
    emergency scheduling change, we will consider such a lapse to be
    '*de minimis*.'\" *Children\'s Television Programming Recon.*, 6 FCC
    Rcd at 5096. North Carolina BP has not asserted that any of station
    WCCB(TV)'s violations occurred as a result of a last-minute
    emergency scheduling change. Further, lest there be any
    misunderstanding or confusion with respect to whether the Commission
    has excused violations in a particular case, we emphasize, here,
    that the Commission has not excused those violations it has found
    *de minimis* or for which it has issued a letter of admonition.
    Rather, the Commission has merely determined that, based on its
    evaluation of the circumstances of that particular case under the
    relevant criteria, *see supra* ¶ 2, the violations do not rise to
    the level warranting imposition of a monetary forfeiture.

[^16]: ^?^ *See, e.g., Channel 39 Licensee, Inc. (WDZL(TV))*, 12 FCC Rcd
    14012, 14015 n.3 (1997).

[^17]: ^?^ *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).

[^18]: ^?^ *Triple X Broadcasting Co., Inc.*, 46 RR2d 788, 789 (B/C Cur.
    1979), *citing Brennan Broadcasting Co.*, 25 FCC 2d 400, 405 (1970).

[^19]: ^?^ *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).