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 Before the
 Federal Communications Commission
 Washington, D.C. 20554

In the Matter of)
Liability of )
 )
RAMAR COMMUNICATIONS, INC. )
 )
Licensee of Television Station )
KJTV(TV), Lubbock, Texas )
 )
for a Forfeiture)

MEMORANDUM OPINION AND ORDER

 Adopted: December 10, 1997 Released: December 12, 1997

 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 ("NAL") in the amount of ten thousand dollars
($10,000) issued against Ramar Communications, Inc. ("Ramar"), licensee of station KJTV(TV),
Lubbock, Texas; and (ii) Ramar's Response to that Notice of Apparent Liability filed on May
27, 1994. The forfeiture was assessed for apparent willful and 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.

 2. On April 1, 1993, Ramar filed an application for renewal of license for KJTV(TV),
File No. BRCT-930401KR. In response to Question 9(b) of that application, KJTV(TV) stated
that it had not complied with the limits on commercial matter in children's programming. In
accordance with Question 9(c), KJTV(TV) submitted Exhibit 5 to its application, listing each
segment of children's programming which exceeded the commercial limits. Exhibit 5 revealed
that between February 12 and August 20, 1992, KJTV(TV) exceeded the commercial limits on
children's television on 6 occasions. Of these 6 commercial overages, two were 30 seconds in
duration, one was 15 seconds in duration, and three were program-length commercials. Ramar
stated that all six overages were inadvertent and resulted from human error; and that, in order
to prevent recurrence of these commercial overages the station "instituted a series of procedures
and cross-checks, including screening of content and review of spot scheduling instructions...."

 3. Ramar also stated that a 30-second overage on July 16, 1992, occurred because the
station was off the air for 50 minutes between 3:00 p.m. and 3:50 p.m. due to technical
difficulties; and that the children's programming broadcast between 3:50 p.m. and 4:30 p.m.,
a period of 40 minutes, contained eight minutes of commercial matter. Ramar asserted that,
although this figure complies with the Commission's 12 minutes per hour commercial limit on
children's weekday programming when prorated for the 40 minutes of children's programming
actually broadcast, the discrete half-hour children's program broadcast between 4:00 p.m. and
4:30 p.m. contained six minutes and 30 seconds of commercial matter, which, if considered as
an isolated half-hour children's program, would exceed the prorated commercial limit of six
minutes per half-hour. Ramar argued that, in view of the "extraordinary circumstance" of the
shut-down due to technical difficulties, the 40-minute period of children's programming should
be "treat[ed]...as a single block of time" which was in compliance with the children's television
commercial limits when the amount of commercial matter contained in the 40-minute time period
is prorated according to the per-hour limit. Finally, with regard to one of the three reported
program-length commercials, Ramar stated that, during a broadcast of the program "Tale Spin"
on July 22, 1992, the station aired a commercial advertisement for a Kelloggs breakfast cereal
"in which, at the end of the commercial, certain Tale Spin characters briefly appeared and Tale
[S]pin figurines were offered as a giveaway"; that the appearance of the Tale Spin characters
"was extremely brief (approximately 3 seconds), and the figurine giveaway offer was also quite
brief (approximately 6 seconds)."

 4. In Ramar NAL, supra, the Chief of the Mass Media Bureau, pursuant to delegated
authority, considered factors discussed in Policy Statement - Standards for Assessing Forfeitures,
8 FCC Rcd 6215 (1993)("Policy Statement/Assessing Forfeitures"), and determined that a
forfeiture in the amount of $10,000 was appropriate for the six commercial overages, including
the three program-length commercials, reported in KJTV(TV)'s renewal application. Ramar
NAL, supra 9 FCC Rcd at 1831.

 5. Ramar's Response to the NAL. With regard to the 30-second overage which
occurred on July 16, 1992, because KJTV(TV) went off the air for 50 minutes due to technical
difficulties, Ramar states that the "extraordinary" circumstances surrounding that overage were
described in its renewal application; and that broadcasters should be allowed "to adapt to the
exigencies of a particular broadcast day, without adverse regulatory consequences." Ramar also
asserts that the Tale Spin program treated as a program-length commercial in Ramar NAL,
supra, did not come within the Commission's definition of program-length commercial. In
addition, Ramar reasserts that all three incidents of program-length commercials cited in Ramar
NAL were inadvertent, and that the station had taken steps to prevent their recurrence. Further,
Ramar argues that its violations were "far less egregious" than those for which the Commission
imposed only an admonition in another case. Finally, Ramar states that the Commission
established certain "upward and downward adjustment criteria" for determining the amount of
forfeitures in Forfeiture Policy Statement, supra; and argues that, although "several" downward
adjustment criteria are applicable, they were not mentioned in Ramar NAL, supra.

 Discussion

 6. Assessed Forfeiture Amount. Before we address Ramar's arguments concerning
particular children's television commercial overages on KJTV(TV), we shall address its assertion
that the aggregate violations for which a $10,000 forfeiture was assessed in Ramar NAL, supra,
were "far less egregious" than those for which the Commission imposed only an admonition in
another case. Ramar cites Idaho Independent Television, Inc. (KTRV(TV)), (Chief, Video
Services Division Letter 1800E1-LJ, dated March 28, 1994), in which the Commission
admonished that licensee for a total of six commercial overages, including one program-length
commercial, one overage of 150 seconds in duration, two overages of 90 seconds in duration
and two overages of 30 seconds in duration. Ramar asserts that overages of 30 seconds or more
are considered "serious", citing R&R Media Corporation (WTWS(TV)), 9 FCC Rcd 1715
(1994); and that a forfeiture was imposed in Ramar NAL, supra, for "only two overages" (one
"serious" overage of 30 seconds and one "negligible" overage of 15 seconds) and two program-
length commercials, "as compared with the five overages (all serious) and one program[-]length
commercial" for which only an admonition was imposed in KTRV(TV), supra. Ramar
concludes that the "only possible distinction" between its situation and that in KTRV(TV), supra,
is KJTV(TV) "broadcast two program[-] length commercials rather than one..."; that this alleged
sole distinction is "more than offset" by the "fact" that KTRV(TV)'s commercial overages were
"so much more numerous and egregious" than KJTV(TV)'s; that, pursuant to Melody Music ,
Inc. v. F.C.C., 345 F.2d 730 (D.C. Cir. 1965), the Commission is required to accord similar
treatment to parties that are similarly situated; and that, therefore, Ramar NAL, supra, should
be rescinded and replaced with, at most, a letter of admonition.

 7. Initially we note that Ramar's Response misstates the number of overages upon which
the $10,000 forfeiture was based in Ramar NAL, supra. As clearly stated in Ramar NAL, id.
9 FCC Rcd at 1831, the forfeiture was assessed because KJTV(TV) exceeded the children's
television commercial limits "on six occasions, including three program-length commercials."
Thus, Ramar is in error in asserting that the violations in KTRV(TV), supra, were "much more
numerous" than those for which the forfeiture was assessed in the instant case.

 8. Further, Ramar's Response misconceives the seriousness with which the Commission
consistently has considered and treated program-length commercials. When the Commission
adopted its children's television commercial rules and policies pursuant to the Children's
Television Act of 1990, the Commission specifically provided that, where a program is
determined to be a program-length commercial, the entire program "would count toward the
statutory commercial limits." Finally, the Commission has made it abundantly clear that,
independent of their duration, program-length commercials, by their very nature, are extremely
serious. In Children's Television Programming, id. 6 FCC Rcd at 2118, the Commission stated
that its 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." (Emphasis added.) Accordingly, in numerous cases assessing
forfeitures for violations of the children's television commercial limits, the Commission has
stated 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). Overages of this
 nature and magnitude 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.

Le Sea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977, 4978 (1995); Buffalo Management
Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959, 4960 (1995); Act III Broadcasting License
Corp. (WUTV(TV)), 10 FCC Rcd 4957, 4958 (1995).

 9. In accordance with this policy of treating program-length commercials as extremely
serious violations of the children's television commercial limitations, the Commission has
routinely assessed higher forfeitures for program-length commercials than for a significantly
greater number of conventional overages. Thus, in Channel 12 of Beaumont, Inc. (KBMT-TV),
9 FCC Rcd 1825 (1994), and Mt. Mansfield Television, Inc. (WCAX-TV), 10 FCC Rcd 8797
(1995), forfeitures of $10,000 were assessed for totals of 40 and 30 overages, respectively, of
which none were program-length commercials. In contrast, in Gannett Massachusetts
Broadcasting, Inc. (WLVI-TV), 9 FCC Rcd 1555 (1994), a forfeiture of $10,000 was assessed
for a total of seven overages, three of which were 60, 30 and 28 seconds in duration,
respectively, and four of which were program-length commercials; in WUTV(TV), supra 10
FCC Rcd at 4957-58, a forfeiture of $10,000 was assessed for a total of eight overages, one
of which was 30 seconds in duration, three of which were 15 seconds in duration, and four of
which were program-length commercials; and in Quad Cities Television (KLJB-TV), 9 FCC Rcd
1711 (1994), a forfeiture of $10,000 was assessed for a total of three overages, all which were
program-length commercials. The forfeiture amounts for the number and type of children's
television commercial limit violations specified in the latter four cases are generally consistent
with those in Ramar NAL, supra. Accordingly, Ramar's assertion that, pursuant to Melody
Music , Inc. v. F.C.C., supra, the forfeiture assessed in Ramar NAL, supra, should be
rescinded and replaced with a letter of admonition, is without merit and shall be denied.

 10. Technical Difficulties. In establishing rules and policies limiting the amount of
commercial matter which may be aired during children's programming, the Commission
specifically recognized that licensees may experience "occasional emergency scheduling
change[s]", and stated that such emergency schedule changes would be taken into consideration
in determining whether "extenuating circumstances" mitigated any resulting children's television
commercial limit violations. Upon reconsideration, the Commission, inter alia, 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.'" (Footnote
omitted.)

 11. Upon reexamination of Ramar NAL, supra, we believe that the 30-second overage
which occurred because the station was off the air due to technical difficulties for 50 minutes
on July 16, 1992, resulted from the kind of "last-minute emergency scheduling change" which
should have been considered to be an "extenuating circumstance" with regard to the resulting
violation of the children's television commercial limits. Accordingly, that 30-second overage
shall not be considered in determining the amount of any forfeiture.

 12. Program-Length Commercials. In its Response, Ramar asserts that Ramar NAL,
supra, "improperly characterized" a "brief three-second appearance of a Tail [sic] Spin character
at the end of a Kelloggs cereal commercial" as a program-length commercial; that this did not
come within the Commission's definition of program-length commercial because the product
being advertised was "a brand of Kelloggs cereal", and "no Tail [sic] Spin products were being
offered for sale or advertised"; that the appearance of the Tale Spin characters in that Kelloggs
cereal commercial "[a]t most,...constituted 'host selling'"; and that host selling "is to be the
subject of admonitions, not forfeitures", citing Children's Television Programming, id. 6 FCC
Rcd at 2127 n.147 (1991). However, these assertions misstate the record with regard to both
the description of the commercial advertisement contained in KJTV(TV)'s renewal application
and the discussion of that advertisement in Ramar NAL, supra.

 13. Exhibit 5 to KJTV(TV)'s renewal application clearly states that, in addition to the
appearance of "certain Tale Spin characters" in the cereal commercial in question, "Tale [S]pin
figurines were offered as a giveaway." (Emphasis added.) As noted in Ramar's Response, in
Children's Television Programming, supra 6 FCC Rcd at 2117, a program-length commercial
is defined as "a program associated with a product in which commercials for that product are
aired." The "Tale [S]pin figurines" offered during the cereal commercial in question are
products "related to" the Tale Spin Program. Therefore, Ramar NAL, supra, included the Tale
Spin program in question among KJTV(TV)'s program-length commercial violations specifically
because "a commercial for Kelloggs cereal aired during...[that] show contained a giveaway
promotion for Tail [sic] Spin characters." (Emphasis added.) Id., 9 FCC Rcd at 1831.

 14. The Commission has repeatedly 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 the program to which the included products relate will render
that program a program-length commercial. Indeed, the Commission has specifically ruled that
this principle applies to "Tale Spin" programs containing Kelloggs cereal advertisements which
include offers of "Tale Spin" character figurines. Accordingly, Ramar NAL, supra, correctly
includes the Tale Spin program in question among KJTV(TV)'s program-length commercial
violations.

 15. In addition to its arguments concerning the Tale Spin program-length commercial,
Ramar's Response reasserts that all three incidents of program-length commercials cited in
Ramar NAL were inadvertent, and that the station had taken steps to prevent their recurrence.
However, the Commission has repeatedly held that inadvertence and/or lack of intention to
violate the children's television commercial limits do not excuse such violations. Further, the
Commission has repeatedly held that the fact that a licensee may have instituted a plan to
eliminate future overages does not relieve that licensee of liability for prior violations. In view
of the foregoing, any forfeiture or other sanction imposed for the children's television
commercial limit violations reported in KJTV(TV)'s renewal application should be based on a
total of five violations: three program-length commercials, one overage of 30 seconds, and one
overage of 15 seconds.

 16. Adjustment Criteria. Ramar states that in Policy Statement/Assessing Forfeitures,
supra, the Commission established certain "upward and downward adjustment criteria" for
determining the amount of forfeitures; and argues that, although "several" downward adjustment
criteria are applicable in the instant case, they were not mentioned in Ramar NAL, supra. In
this regard, Ramar asserts that all of its violations were disclosed in its renewal application
"voluntarily...[and] in good faith"; that its violations were "isolated and 'minor' in nature"; and
that its "history of overall compliance" was such that the fine should be further reduced.

 17. 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, supra, 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 guidelines for assessing
forfeitures. Forfeiture Guidelines - Report and Order in CI Docket No. 95-6, FCC Rcd
(FCC 97-218, adopted June 19, 1997, released July 28, 1997)("Forfeiture Guidelines").
Forfeiture Guidelines, id., became effective on October 14, 1997. 62 Fed. Reg. 43474 (August
14, 1997). However, with regard to (i) all cases pending when Forfeiture Guidelines, supra,
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 49.

 18. In Ramar NAL, supra 9 FCC Rcd at 1831, the Commission specifically recognized
that a petition for review of Policy Statement/Assessing Forfeitures, supra, was pending in the
court of appeals. As stated in footnote 2, supra, in determining the forfeiture amount in the
instant case the Commission considered the number and duration of commercial overages at
KJTV(TV), the period of time over which the overages occurred, and whether the licensee had
established an effective program to ensure compliance with the children's television commercial
limits. Id., 8 FCC Rcd at 5082. These criteria, which were developed and applied by the
Commission in previous cases, are appropriate in analyzing violations of the children's
television commercial limits, 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. Thus, as specified in Forfeiture
Guidelines, supra at 49, the forfeiture amount in the instant case was determined in accordance
with the criteria developed and applied by the Commission in previous cases, in conformity with
the standards established in Section 503 of the Communications Act.

 19. Voluntary Disclosure. Initially we note that in the Children's Television Act of
1990, Congress not only required the establishment of limits on the amount of commercial
matter that may be included in children's television programming, but also directed that "the
Commission shall, in its review of any application for renewal of a commercial...television
broadcast license, consider the extent to which the licensee...has complied with such
standards...." Pursuant to this Congressional mandate, the Commission added a supplement to
FCC Form 303-S, Application for Renewal of License, directing the applicant to (i) state
whether or not it had complied with the children's television commercial limits; and (ii) if it had
not so complied, submit an exhibit to the renewal application listing "each segment of
programming, 5 minutes or more in duration, designed for children 12 years old and under and
broadcast during the license period which contained commercial matter in excess of the limits"
(emphasis added), including "the length of the segment, the amount of commercial matter
contained therein, and an explanation of why the limits were exceeded." Supplement to FCC
Form 303-S, Application for Renewal of License, Question 9(b) and (c). Section 73.3514 of
the Commission's Rules, 47 C.F.R. 73.3514, provides that "[e]ach application shall include
all information called for by the particular form on which the application is required to be
filed...." Section 1.17 of the Commission's Rules, 47 C.F.R. 1.17, provides that "[n]o
licensee, permittee or applicant shall...in any application ... submitted to the Commission, make
any material misrepresentation or willful material omission bearing on any matter within the
jurisdiction of the Commission."

 20. Failure to provide the information called for in the renewal application, or providing
incomplete or incorrect information, could have resulted in an additional forfeiture against
Ramar for violation of Section 1.17 of the Rules. Cf., David A. Ringer, 8 FCC Rcd 7037
(1993). Further, failure to disclose the occurrence of violations of the children's television
commercial limitations in response to the questions in the renewal application, or providing
incomplete or incorrect information, could constitute a misrepresentation or lack of candor by
the applicant, which would raise a serious question as to whether the applicant possesses the
character qualifications to be a Commission licensee. Policy Regarding Character Qualifications
in Broadcast Licensing, 102 FCC 2d 1179, 1210-11, recon. 1 FCC Rcd 421, 422
(1986)("Character Qualifications"), appeal dismissed sub nom. National Association for Better
Broadcasting v. F.C.C., No. 86-1179 (D.C. Cir. June 11, 1987).

 21. Finally, the history of overall compliance by the licensee of Commission Rules and
policies is not such as to justify forfeiture reduction.

 Conclusion

 22. Accordingly, IT IS ORDERED THAT the Response to Notice of Apparent Liability
filed by Ramar Communications, Inc., requesting that the forfeiture assessed in Ramar
Communications, Inc., supra, be reduced or eliminated, 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), Ramar Communications, Inc., licensee of Television Station KJTV(TV),
Lubbock, Texas, 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,
Ramar Communications, 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

kkjtvrd3.rel

$// RAMAR COMMS, INC., KJTV(TV) (LUBBOCK, TX) DA 97-2584 //$

$/ 300.503(b) FORFEITURES (FORFEITURE ORDER) /$
$/ 73.670 COMMERCIAL LIMITS ON CHILDREN'S PROGRAMS /$