Federal Communications Commission__________DA 00-129 Before the Federal CommunicationsCommission Washington, D.C. 20554 In the Matter of Liability of WTTE, CHANNEL 28 LICENSEE, INC. Licensee of Television Station WTTE(TV), Columbus, Ohio Facility I.D. No. 74137 for a Forfeiture MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: January 21,2000 Released: January 28,2000 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 for forfeiture in the amount often thousand dollars ($ 10,000) issued against WTTE, Channel 28 Licensee, Inc. (WTTE-Channel 28), licensee of station WTTE(TV), Columbus, Ohio, WTTE, Channel 28 Licensee, Inc. (WTTE(TV)), 12 FCC Red 18056 (MMB 1997) (WTTE NAL); and (ii) WTTE-Channel 28's Response to WTTE NAL filed on December 4, 1997 (Response), requesting rescission of the forfeiture. The forfeiture was assessed for station WTTE(TV)' s apparent repeated violations 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. In WTTE NAL, we found that station WTTE(TV)'s record of exceeding the Commission's commercial limits on five 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), WTTE-Channel 28 was advised of its apparent liability for forfeiture in the amount of $10,000. 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. We applied these criteria to the facts of station WTTE(TV)'s case, considering the five violations reported by WTTE-Channel 28, which occurred over a period of approximately one year and 11 months and included four program-length commercials, the category of violations over which Congress expressed particular concern because 1903 ____ _____Federal Communications Commission______ DA 00-129 young children often have difficulty distinguishing between commercials and programs. Based on the number and type of violations, 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.' We noted, moreover, the Commission's statement made at the time it delayed the effective date of Section 73.670 of the Rules from October 1, 1991, until January 1, 1992, 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... ."2 In doing so, we rejected the reasons offered by WTTE-Channel 28 - human error and inadvertence on the part of the station staff and program suppliers ~ as bases for excusing station WTTE(TV)'s violations of the commercial limits. We added that, though station WTTE(TV) implemented procedures to prevent future violations of the children's television commercial limitations, this did not relieve WTTE-Channel 28 of liability for the violations which had occurred. 3. In its Response to WTTE NAL, WTTE-Channel 28 asserts that, in imposing the $10,000 forfeiture, we focused on the four program-length commercials which we determined had occurred at station WTTE(TV) during the license period at issue. However, WTTE-Channel 28 contends that it can only be fairly held culpable for airing one program-length commercial. WTTE-Channel 28 challenges our consideration of the three other program-length commercials, specifically: (1) two program-length commercials which occurred on November 28 and 30, 1994, when commercial announcements for a SEGA product containing the cartoon character Sonic the Hedgehog aired during the "Sonic the Hedgehog" program; and (2) a program-length commercial which occurred on July 12, 1995, when the title character from the children's program "Bobby's World" appeared in the background of a commercial that aired during the program "Bobby's World." First, WTTE-Channel 28 states that the "Sonic the Hedgehog" program-length commercials were beyond its control, as they involved barter commercial announcements that were scheduled and placed within the program by the program supplier. WTTE-Channel 28 maintains that it had no warning of the conflict, and was notified of the program supplier's error only after the "Sonic the Hedgehog" program-length commercials had occurred. Furthermore, WTTE-Channel 28 insists, no matter how consistently the Commission has so ruled, it is arbitrary and ill-reasoned to hold a licensee responsible for those violations resulting from errors made by program suppliers. Accordingto WTTE-Channel 28: It is one thing for the Commission to fine a licensee for an intentional, or even an inadvertent, violation resulting from commercial matter which the station has produced, sold, or scheduled. It is quite another for the Commission to fine a licensee for a commercial limit violation occurring in a network or barter program that results from commercial matter sold and scheduled by the program supplier. In such a case, the station licensee has no control over the content or the scheduling of the commercial matter. Fining the licensee in a case such as this has no deterrent 1 Pub. L. No. 101-437,104 Stat. 996-1000, codified at 47 U.S.C. Sections 303a,303b and 394. 2 Children's Television Programming, 6 FCC Red 5529, 5530n.lO(1991). 1904 , ___________ Federal Communications Commission__________DA 00-129 effect on the network or syndicator, who will receive no sanction ... [a] forfeiture only serves to unfairly penalize the local station licensee for matter over which it has no control. Response at pp. 3-4. For these reasons, WTTE-Channel 28 concludes, it cannot fairly or reasonably be assessed a forfeiture for the "Sonic the Hedgehog" program-length commercials. 4. Second, WTTE-Channel 28 contends that the "Bobby's World" incident falls outside the definition of a program-length commercial adopted by the Commission in Children's Television Programming, 6 FCC Red 2111, recon. granted in part, 6 FCC Red 5093 (1991). To this end, WTTE-Channel 28 explains that, though the character Bobby appeared in the background of the commercial at issue, the spot was for an upcoming comic book expo in the Columbus area and did not promote "Bobby's World" in any way. WTTE-Channel 28 adds that the spot "did not offer or advertise any 'Bobby's World' products even secondarily to the primary subject of the ad (i.e., a local comic book expo)." Because the commercial was not for a "Bobby's World" product, WTTE-Channel 28 argues, the broadcast of that spot during the "Bobby's World" program did not create a program-length commercial within what the Commission described as its "clear, easy to understand and apply, and narrowly tailored" definition of a program-length commercial.3 WTTE- Channel 28 maintains that, at most, the mere appearance of the Bobby character in the background of the commercial for a product unrelated to the program constituted a violation of the Commission's host-selling policy, for which the proper sanction is an admonition. In view of all of these considerations, WTTE-Channel 28 posits, it legitimately can be held responsible for only one program-length commercial and one 30-second commercial overage during a five-year license term, and no precedent exists to impose a forfeiture under these circumstances. Therefore, WTTE- Channel 28 concludes that, at worst, the facts here warrant an admonition, and that the forfeiture imposed against station WTTE(TV) should be rescinded. 5. Discussion. In determining whether a forfeiture is appropriate and, if so, the amount of that forfeiture, the Commission does not consider each violation in isolation or consider prograrh- lerigth commercials separately from violations of shorter durations.4 Rather, the Commission considers, inter alia, the total number of overages and the length of each overage/ as we did in this case. However, given Congress' concern over program-length commercials, see supra ^ 2, the Commission has made it clear that program-length commercials are extremely serious violations of the children's television commercial limits, and has routinely assessed higher forfeitures for them than for a greater number of conventional overages.6 Therefore, we disagree with WTTE- 3 Children's Television Programming, 6 FCC Red at 2118. ; 4 See, e.g., Act III Broadcasting License Corp. (WUTV(TV)), 10 FCC Red 4957 (MMB 1995), affd, 13 FCC Red 10099 (MMB 1997). 5 Id. 6 See, e.g., Channel39 Licensee, Inc. (WDZL(TV)), 12 FCC Red 14012, 14015 n.3 (1997). 1905 _________________Federal Communications Commission__________DA 00-129 Channel 28 to the extent it suggests we acted inappropriately in according greater weight to the four program-length commercials than we would have to four conventional overages in assessing the forfeiture against station WTTE(TV). 6. Furthermore, we believe we acted properly and consistent with Commission precedent in rejecting the contention that WTTE-Channel 28 should not be held responsible for the two "Sonic the Hedgehog" program-length commercials because it did not have control over the content or scheduling of the commercial matter. It is a bedrock principal that licensees are ultimately responsible for compliance with the Communications Act and the Commission's rules, regulations and policies. See Vista Point Communications, Inc., 13 FCC Red 10540 (MMB 1998), aff'd 14 FCC red 140 (MMB 1999); Choctaw Broadcasting Corporation, 12 FCC Red 8534 (1997>; J. Dominick Monahan, 6 FCC Red 1867(1991). Therefore, while errors by the program distributor may have contributed to the "Sonic the Hedgehog" program-length commercials, WTTE- Channel 28 is ultimately responsible for them. As we noted in WTTE NAL, moreover, the Commission expected that, in delaying the effective date of the commercial limits, broadcasters would refine their compliance plans. Even with the benefit of that additional tune, however, WTTE-Channel 28 apparently failed to account for errors on the part of program suppliers. We believe such errors are foreseeable and should have been taken into consideration in the course of honing a compliance plan for station WTTE(TV). The fact that WTTE-Channel 28's plan lacked adequate notification procedures and safeguards to be used with its program suppliers does not warrant a departure from Commission precedent in this case. 7. On the other hand, we agree with WTTE-Channel 28 that the "Bobby's World" incident did not constitute a program-length commercial, but instead violated the Commission's long-standing policy against host-selling, i.e, "the use of program talent to deliver commercials," including "endorsements or selling by animated cartoon characters as well as 'live' program hosts."7 The Commission has denounced host-selling because it takes unfair advantage of the trust that children place in program characters.8 Along this line, the Commission has stated that "host- selling encompasses any character endorsement not just direct vocal appeals that has the effect of confusing a child viewer from distinguishing between program and non-program material."9 For example, the Commission has determined that "advertisements featuring the same type of animation that is regularly featured in the accompanying program constitutes host-selling." 10 Based on the information before us and WTTE-Channel 28's representations, we believe the broadcast during the "Bobby's World" program of a commercial for an upcoming comic book expo containing an appearance of the character Bobby, because the commercial did not promote the 7 Children's Television Programming, 6 FCC Red at 2127 n.147, recon., 6 FCC Red at 5097; see also Actionfor Children's Television, 50 FCC 2d 1, 8, 16-17 (1974). 8 Children's Television Recon, 6 FCC Red at 5097; Actionfor Children's Television, 50 FCC 2d at 16-17. 9 WHYY, Inc. (WHYY-TV), 1 FCC Red 7123 (1992). 10 Id 1906 ________________Federal Communications Commission__________DA 00-129 "Bobby's World" program or any product associated with that program in any way even secondarily to the primary subject of the spot, constituted a host-selling violation, not a program- length commercial. Therefore, we admonish you to avoid such a situation in the future. 8. Having found the "Bobby's World" incident to be a host-selling violation, we believe that the forfeiture assessed against WTTE-Channel 28 should be adjusted to reflect one conventional overage and three, rather than four, program-length commercials. In a similar case, Northeast Kansas Broadcast Service, Inc. (KTKA-TV), 13 FCC Red 13930 (MMB 1998) (Northeast Kansas), we assessed a $7,500 forfeiture for one four-second overage and three program-length commercials, which occurred over a period of approximately two years and seven months. The licensee in Northeast Kansas attributed the four violations to inadvertence and human error, and claimed to have taken steps to prevent future violations. Compared to Northeast Kansas, the instant case involved the same number and type of overages, i.e., one conventional overage and three program-length commercials, and likewise occurred over an extended period of time, see supra J 2. Furthermore, WTTE-Channel 28 offered some of the same reasons to explain its violations as did the licensee in Northeast Kansas, and indicated that it, too, had instituted new procedures to prevent future violations. In view of these facts, we find that the violations at issue in this case are comparable to those involved in Northeast Kansas, and conclude that a comparable forfeiture should be assessed against station, WTTE(TV). Therefore, we will reduce the forfeiture assessed against station WTTE(TV) in WTTE NAL from $ 10,000 to $7,500. 9. Accordingly, IT IS ORDERED THAT WTTE, Channel 28 Licensee, Inc.'s Response to WTTE, Channel 28 Licensee, Inc. (WTTE(TV)), 12 FCC Red 18056 (MMB 1997), requesting rescission of the forfeiture assessed therein, 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), WTTE, Channel 28 Licensee, Inc. FORFEIT to the United States the sum of seven thousand, five hundred dollars ($7,500) 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, WTTE, Channel 28 Licensee, 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 1907