Federal Communications Commission Washington, D.C. 20554 October 14, 2008 DA 08-2292 Released: October 14, 2008 CERTIFIED MAIL – RETURN RECEIPT REQUESTED WCWB Licensee, LLC WPMY(TV) c/o Kathryn Schmeltzer, Esq. Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, N.W. Washington, D.C. 20037-1128 Re: WCWB Licensee, LLC WPMY(TV), Pittsburgh, Pennsylvania Facility ID No. 73907 File No. BRCT-20070329ABJ Dear Licensee: This refers to your license renewal application for station WPMY(TV), Pittsburgh, Pennsylvania. In the Children’s Television Act of 1990, Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S.C. §§ 303a, 303b and 394, Congress directed the Commission to adopt rules, inter alia, limiting the number of minutes of commercial matter that commercial television stations may air during children’s programming, and to consider in its review of television license renewal applications 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 which limits the amount of commercial matter which may be aired by such stations 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.1 In addition, the Commission reiterated its long-standing policy against “host-selling,” i.e, “the use of program talent to deliver 1 Children’s Television Programming, 6 FCC Rcd 2111, 2118, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). 2 commercials,” including “endorsements or selling by animated cartoon characters as well as ‘live’ program hosts.”2 On March 29, 2007, you filed the above-referenced license renewal application for station WPMY(TV). In response to Section IV, Question 5 of that application, you certify that, during the previous license term, WPMY(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 state that on September 11, 2000, station WPMY(TV) aired a Warner Brothers Network (“WB Network”) commercial for Mattel during the WB Network’s “Max Steel” program. You report that during the commercial, an image of the Max Steel character was visible for one half of a second. You opine that, at most, the incident may have violated the Commission’s broadcast host-selling policy. You assert, however, that you should not be sanctioned for this incident because station WPMY(TV) was “not involved in the selection, planning, or approval of the network commercials aired” during the “Max Steel” program.3 In Children’s Television Programming (Recon.), the Commission stated that, in order 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.”4 To ensure that there was no confusion, the Commission “specifically note[d] that intervening commercial matter will not suffice as a separation device.”5 The Commission made it clear in Children’s Television Programming, that program-length commercials, by their very nature, are extremely serious, 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.”6 Similarly, the Commission has denounced the practice of host-selling because it takes unfair advantage of the trust that children place in program characters.7 The Commission has stated, moreover, 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.”8 Although you assert that the overage was inserted into the program by the station’s television network, this contention does not relieve you of responsibility for the violation. In this regard, 2 Id. at 2127 n.147, 6 FCC Rcd at 5097; see also Action for Children’s Television, 50 FCC 2d 1, 8, 16-17 (1974). 3 In support of this argument, you cite, Complaints Against Various Television Licensees Concerning Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show, 19 FCC Rcd 19230 ¶25 (2004). 4 6 FCC Rcd at 5099. 5 Id. at 5099 n.89. 6 Children’s Television Programming, 6 FCC Rcd at 2118. 7 Children’s Television Recon., 6 FCC Rcd at 5097; Action for Children’s Television, 50 FCC 2d at 16-17. 8 WHYY, Inc. (WHYY-TV), 7 FCC Rcd 7123 (1992). 3 the Commission has consistently held that a licensee’s reliance on a program’s source or producer for compliance with the Commission’s children’s television rules and policies will not excuse or mitigate violations which do occur.9 While we consider any violation of our rules limiting the amount of commercial matter in children’s programming to be significant, the program-length commercial and/or host-selling violation described in your renewal application appears to have been an isolated occurrence. 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 violation of the children’s television commercial limits rule and policies described in station WPMY(TV)’s renewal application. 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 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 9 See, e.g., Max Television of Syracuse, L.P. (WSYT(TV)), 10 FCC Rcd 8905 (MMB 1995); Mt. Mansfield Television, Inc. (WCAX-TV), 10 FCC Rcd 8797 (MMB 1995); Boston Celtics Broadcasting Limited Partnership (WFXT(TV)), 10 FCC Rcd 6686 (MMB 1995).