Federal Communications Commission Washington, D.C. 20554 March 23, 2007 DA 07- 1388 Released: March 23, 2007 CERTIFIED MAIL – RETURN RECEIPT REQUESTED WSTR Licensee, Inc. WSTR-TV c/o Pillsbury Winthrop Shaw Pittman LLP ATTN: Kathryn Schmeltzer, Esq. 2300 N Street, N.W. Washington, D.C. 20037-1128 Re: WSTR Licensee, Inc. WSTR-TV, Cincinnati, OH Facility ID No. 11204 File No. BRCT-20050601APH Dear Licensee: This refers to your license renewal application for station WSTR-TV, Cincinnati, OH. 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 number of minutes 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. Pursuant to this statutory mandate, 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 limitations became effective on January 1, 1992. Children’s Television Programming, 6 FCC Rcd 5529, 5530 (1991). On June 1, 2005, you filed the above-referenced license renewal application for station WSTR- TV. In response to Section IV, Question 5 of that application, you certify that, during the previous license term, WSTR-TV failed to comply with the limitations on commercial matter in children’s programming specified in Section 73.670 of the Commission’s Rules. In Exhibit 19, you indicate that station WSTR-TV violated the children’s television commercial limits and 2 policies on two occasions between September 24, 2002 and October 18, 2003. First, you state that one conventional overage occurred on Saturday, October 18, 2003, and was 90 seconds in duration.1 You attribute this overage to human error. The remaining incident you reported occurred on September 24, 2002 when a commercial for the Gameboy Advance E-Reader aired during the “Pokemon” program. According to your description, three “Pokemon” game cards were shown for approximately 1.04 seconds. You also indicate that the “Pokemon” game cards were partially hidden and only the letters “MON” were identifiable. You state that the “Pokemon” characters on the cards were not identifiable and were not verbally identified during the commercial. You maintain that the de minimis appearance of these cards could not have confused the viewer and that you do not believe that this occurrence violates the children’s programming commercial limits rules. Nonetheless, you state, the licensee is disclosing this incident out of an abundance of caution. As a preliminary matter, we note 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). Thus, in Children’s Television Programming, 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.”2 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. See, e.g., Scripps Howard Broadcasting Company (KNXV-TV), 9 FCC Rcd 2547 (1994), aff’d 12 FCC Rcd 19504, 19505 (MMB 1997). With respect to the station’s broadcast of the commercial for the Gameboy Advance E-Reader, although you contend that the “Pokemon” game cards appeared for approximately 1.04 seconds during the commercial, it is well-established that the determination as to whether a particular program is a program-length commercial is not dependent on the duration of the appearance of the program-related product in the commercial announcement. The Commission has stated on 1 You also report a 15-second overage which occurred on November 18, 1999, due to equipment malfunction in the software program at the WB Network that is responsible for the insertion of network commercials. 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. Although the November 18, 1999 overage did not involve a last-minute emergency scheduling change, we believe the equipment malfunction which caused it constitutes an extenuating circumstance. Accordingly, that overage shall be considered de minimis, and shall not be considered in determining the sanction deemed appropriate for the other violations of the children’s television commercial limits reported by the licensee. 2 Children’s Television Programming, 6 FCC Rcd at 2118. 3 numerous occasions that, where a commercial announcement includes a product related to the program in which the commercial is broadcast, then the program is a program-length commercial regardless of the duration of the appearance of the program-related product in the commercial. UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10986, 10988 (1995); see also WPIX, Inc., 14 FCC Rcd 9077 (MMB 1999) (commercial for “Spirit of Mickey” home video showing brief image of Donald Duck on cover of video aired during “Quack Pack” program); Act III Broadcasting License Corp. WUTV(TV)), 10 FCC Rcd 4957 (1995), aff’d, 13 FCC Rcd 10099 (MMB 1997) (commercial for a fast food restaurant promoting a trip to Disney World as a contest prize contained a brief image of Goofy and aired during the program “Goof Troop”). Moreover, we believe that, in the context of the cognitive abilities of young children, there is the potential for confusion between the Gameboy commercial and the “Pokemon” program regardless whether any “Pokemon” character is depicted given the image of a “Pokemon” game card contained in the commercial and the consequent likelihood that children may associate it with the program. Based on these circumstances, where there is a clear potential for confusion in the minds of young children, the Commission’s program-length policy is applicable. Scripps Howard, 12 FCC Rcd at 19506. Further, although you argue that the conventional overage resulted from human error, the Commission has repeatedly rejected human error as a basis for excusing violations of the children’s television commercial limits. See, e.g., LeSea Broadcasting Corp. (WHKE(TV)), 10 FCC Rcd 4977 (MMB 1995); Buffalo Management Enterprises Corp. (WIVB-TV), 10 FCC Rcd 4959 (MMB 1995); Act III Broadcasting License Corp. (WUTV(TV)), supra; Ramar Communications, Inc. (KJTV(TV)), 9 FCC Rcd 1831 (MMB 1994). While we consider any violation of our rules limiting the amount of commercial matter in children’s programming to be significant, the violations described in your renewal application appear to have been isolated occurrences. Although we do not rule out more severe sanctions for violations of this nature in the future, we have determined that an admonition is appropriate at this time. Therefore, based upon the facts and circumstances before us, we ADMONISH you for the violations of the children’s television commercial limits rule and policies described in station WSTR-TV’s renewal application. We remind you that the Commission expects all commercial television licensees to comply with the limits on commercial matter in children’s programming. 4 Accordingly, IT IS ORDERED that, a copy of this Letter shall be sent by First Class and Certified Mail, Return Receipt Requested to the licensee at the address listed above, and to its counsel, Kathryn R. Schmeltzer, Esquire, Pillsbury Winthrop Shaw Pittman LLP, 2300 N Street, N.W., Washington, D.C. 20037-1128. Sincerely, Barbara A. Kreisman Chief, Video Division Media Bureau