**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | Facility I.D. No. 73881      |
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| WPIX, Inc.                       | ** | NAL/Acct. No. 0741420045     |
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| Licensee of Station WPIX(TV)     | *  | FRN: 0002850147              |
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| New York, New York               | ** |                              |
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**NOTICE OF APPARENT**

**LIABILITY FOR FORFEITURE**

**Adopted: July 11, 2007 Released: July 13, 2007**

By the Chief, Video Division, Media Bureau:

**I. INTRODUCTION**

1.  In this *Notice of Apparent Liability for Forfeiture ("NAL")* issued
    pursuant to Section 503(b) of the Communications Act of 1934, as
    amended (the "Act"), and Section 1.80 of the Commission's Rules (the
    "Rules"),[^1] by the Chief, Video Division, Media Bureau pursuant to
    authority delegated under Section 0.283 of the Rules,[^2] we find
    that WPIX, Inc. (the "Licensee"), licensee of Station WPIX(TV), New
    York, New York (the "Station"), apparently willfully and repeatedly
    violated Section 73.670 of the Rules, by failing to comply with the
    limits on commercial matter in children's programming.[^3] Based
    upon our review of the facts and circumstances before us, we
    conclude that the Licensee is apparently liable for a monetary
    forfeiture in the amount of fifteen thousand dollars (\$15,000).

**II. BACKGROUND**

2.  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 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 during children's programming to 10.5 minutes per
    hour on weekends and 12 minutes per hour on weekdays. The Commission
    also stated that a program associated with a product, in which
    commercials for that product are aired, would cause the entire
    program to be counted as commercial time (a "program-length
    commercial").[^4]

3.  On February 1, 2007, the Licensee filed its license renewal
    application (FCC Form 303-S) for Station WPIX(TV) (the
    "Application") (File No. BRCT-20070201BPA). In response to Section
    IV, Question 5 of the Application, the Licensee stated that, during
    the previous license term, the Station failed to comply with the
    limits on commercial matter in children's programming specified in
    Section 73.670 of the Rules. In Exhibit 19, the Licensee indicated
    that between December 23, 2000, and December 23, 2006, the Station
    exceeded the children's television commercial limits on eight
    occasions. Specifically, the Licensee reported that the Station
    exceeded the children's television commercial limits by 30 seconds
    on two occasions. The Licensee maintained that one of these overages
    resulted from human error by a Station employee and the other
    overage was caused by human error on the part of an employee of
    GDMX, an entity that provides the WB Network with program format,
    content integration, and satellite uplink services.

4.  The Licensee reported that on five occasions in September 2002, the
    Station aired a WB Network commercial for the Nintendo GameBoy
    E-Reader, during the "Pokemon" program. The Licensee claimed that
    one of these commercials aired as a result of a network buy by the
    WB Network and the remaining four instances were the result of local
    sales. The Licensee asserted that the Station did not know until
    after broadcast, when the WB Network brought the matter to its
    attention, that the commercial contained a "fleeting, obscured
    image" of a "Pokemon" game card. The Licensee stated that, the
    image, in which only the letters "MON" are visible for just over one
    second, did not depict any "Pokemon" character. According to the
    Licensee's description, the "Pokemon" card appeared as the third of
    six cards arranged in the shape of a fan during the display and
    "Pokemon" was not mentioned in the audio of the commercial. The
    Licensee maintained that the program-length commercial policy is
    inapplicable in this case because there is no likelihood that
    children would perceive any linkage between the "Pokemon" program
    and the GameBoy commercial. Further, the Licensee contended that the
    WB Network expressed its belief that the GameBoy commercial does not
    violate the Commission's rules or policies or the Children's
    Television Act's commercial time limits. Additionally, in support of
    its assertion that this incident does not violate the Commission's
    children's television commercial limits, the Licensee cited the
    Commission's conclusion in *Complaints Regarding Various Television
    Broadcasts Between February 2, 2002 and March 8, 2005,* 21 FCC Rcd
    2664 (2006) ("*Omnibus Order*"), that a broadcast of "The Amazing
    Race 6" did not violate indecency restrictions. Specifically, in the
    *Omnibus Order*, the Commission considered whether a momentary
    showing of the phrase "Fuck Cops!" written on the side of a train
    during an episode of "The Amazing Race 6" was indecent. The
    Commission found that the program was not indecent under the three
    principal factors that comprised the Commission's contextual
    analysis of this incident.

5.  The eighth and remaining incident the Licensee reported occurred on
    December 23, 2006, when the Station aired a commercial containing a
    brief appearance of "Xiaolin Showdown" characters during the
    "Xiaolin Showdown" program. Based on the Licensee's description, a
    view of a "postopia.com" web site page was displayed, and the
    display included a banner across the top of the screen that depicted
    "Xiaolin" characters. Further, the Licensee stated that the banner
    was "no more than a tenth of the screen height." The Licensee
    indicated that the CW Network "mistakenly included" this commercial
    in the "Xiaolin Showdown" program.

**III. DISCUSSION**

6.  Station WPIX(TV)'s record during the last license term of exceeding
    the Commission's commercial limits on seven occasions constitutes an
    apparent willful and repeated violation of Section 73.670. We note
    that five of the overages were program-length commercials.[^5] With
    respect to the Station's broadcast of the commercial for the
    Nintendo GameBoy E-Reader, although the Licensee contended that the
    "Pokemon" game card appeared for one second 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 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.[^6] 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. Although the Licensee cited a case in support of assertion
    that this incident does not violate the children's television
    commercial limits, that case is inapposite since it did not deal
    with the commingling of program content and commercial matter.

7.  Congress was particularly concerned about program-length commercials
    because young children often have difficulty distinguishing between
    commercials and programs.[^7] Given this congressional concern, 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."[^8]

8.  The number and magnitude of overages at issue here 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.[^9] The reason the Licensee cited
    for the conventional overages, human error, does not mitigate or
    excuse them. The Commission has repeatedly rejected human error as a
    basis for excusing violations of the children's television
    commercial limits.[^10] To the extent that the Licensee argues that
    the remaining violations were caused by errors which occurred in the
    programming supplied by the Station's television network or were
    inserted into the program by the Station's television network, this
    contention does not relieve it of responsibility for the violations.
    The Commission has consistently held that a licensee's reliance on a
    program's source or producer for compliance with our children's
    television rules and policies will not excuse or mitigate violations
    which do occur.[^11]

9.  This *NAL* is issued pursuant to Section 503(b)(1)(B) of the Act.
    Under that provision, any person who is determined by the Commission
    to have willfully or repeatedly failed to comply with any provision
    of the Act or any rule, regulation, or order issued by the
    Commission shall be liable to the United States for a forfeiture
    penalty.[^12] Section 312(f)(1) of the Act defines willful as "the
    conscious and deliberate commission or omission of \[any\] act,
    irrespective of any intent to violate" the law.[^13] The legislative
    history to Section 312(f)(1) of the Act clarifies that this
    definition of willful applies to both Sections 312 and 503(b) of the
    Act,[^14] and the Commission has so interpreted the term in the
    Section 503(b) context.[^15] Section 312(f)(2) of the Act provides
    that "\[t\]he term 'repeated,' when used with reference to the
    commission or omission of any act, means the commission or omission
    of such act more than once or, if such commission or omission is
    continuous, for more than one day."[^16]

10. The Commission's *Forfeiture Policy Statement* and Section
    1.80(b)(4) of the Rules establish a base forfeiture amount of
    \$8,000 for violation of Section 73.670.[^17] In determining the
    appropriate forfeiture amount, we may adjust the base amount upward
    or downward by considering the factors enumerated in Section
    503(b)(2)(D) of the Act, including "the nature, circumstances,
    extent and gravity of the violation, and, with respect to the
    violator, the degree of culpability, any history of prior offenses,
    ability to pay, and such other matters as justice may require."[^18]

11. In this case, an upward adjustment is justified in light of the
    number and nature of the commercial overages. Accordingly, we find
    that the Licensee is apparently liable for a forfeiture in the
    amount of \$15,000 for its apparent willful and repeated violation
    of Section 73.670.

**IV. ORDERING CLAUSES**

12. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, and Section 1.80 of the
    Commission's Rules, that WPIX, Inc. is hereby NOTIFIED of its
    APPARENT LIABILITY FOR FORFEITURE in the amount of fifteen thousand
    dollars (\$15,000) for its apparent willful and repeated violation
    of Section 73.670 of the Commission's Rules.

13. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    Rules, that, within thirty (30) days of the release date of this
    *NAL,* WPIX, Inc. SHALL PAY the full amount of the proposed
    forfeiture or SHALL FILE a written statement seeking reduction or
    cancellation of the proposed forfeiture.

14. Payment of the proposed forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. The payment must include the NAL/Acct. No. and FRN No.
    referenced above. Payment by check or money order may be mailed to
    Federal Communications Commission, at P.O. Box 358340, Pittsburgh,
    Pennsylvania 15251-8340. Payment by overnight mail may be sent to
    Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
    Pennsylvania 15251. Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account number
    911-6229.

15. The response, if any, must be mailed to Office of the Secretary,
    Federal Communications Commission, 445 12^th^ Street, S.W.,
    Washington, D.C. 20554, ATTN: Barbara A. Kreisman, Chief, Video
    Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No.
    referenced above.

16. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the respondent
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting practices ("GAAP"); or (3) some other reliable
    and objective documentation that accurately reflects the
    respondent's current financial status. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

17. Requests for full payment of the forfeiture proposed in this *NAL*
    under the installment plan should be sent to: Associate Managing
    Director- Financial Operations, 445 12th Street, S.W., Room 1-A625,
    Washington, D.C. 20554.[^19]

18. IT IS FURTHER ORDERED that copies of this *NAL* shall be sent, by
    First Class and Certified Mail, Return Receipt Requested, to WPIX,
    Inc., 220 East 42^nd^ Street, New York, New York 10017, and to its
    counsel, R. Clark Wadlow, Esquire, Sidley Austin Brown & Wood LLP,
    1501 K Street, N.W., Washington, D.C. 20005.

FEDERAL COMMUNICATIONS COMMISSION

Barbara A. Kreisman

Chief, Video Division

Media Bureau

[^1]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.

[^2]: See 47 C.F.R. § 0.283.

[^3]: *See* 47 C.F.R. § 73.670.

[^4]: *Children's Television Programming*, 6 FCC Rcd 2111, 2118, *recon.
    granted in part*, 6 FCC Rcd 5093, 5098 (1991).

[^5]: From the Licensee's description of the "Xiaolin Showdown"
    commercial, it appears that this incident is more akin to a
    violation of the Commission's "host-selling" policy, rather than a
    program-length commercial.

[^6]: *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").

[^7]: S. Rep. No. 227, 101^st^ Cong., 1^st^ Sess. 24 (1989).

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

[^9]: *Id.* at 2117-18.

[^10]: *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., supra;
    Ramar Communications, Inc. (KJTV(TV))*, 9 FCC Rcd 1831 (MMB 1994).

[^11]: *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).

[^12]: 47 U.S.C. § 503(b)(1)(B); s*ee also* 47 C.F.R. § 1.80(a)(1).

[^13]: 47 U.S.C. § 312(f)(1).

[^14]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^15]: *See Southern California Broadcasting Co.*, Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991).

[^16]: 47 U.S.C. § 312(f)(2).

[^17]: *See Forfeiture Policy Statement and Amendment of Section 1.80(b)
    of the Rules to Incorporate the Forfeiture Guidelines*, Report and
    Order, 12 FCC Rcd 17087, 17113-15 (1997) *("Forfeiture Policy
    Statement"),* *recon. denied*, 15 FCC Rcd 303 (1999); 47 C.F.R. §
    1.80(b)(4), note to paragraph (b)(4), Section I.

[^18]: 47 U.S.C. § 503(b)(2)(D); *see also Forfeiture Policy Statement,*
    12 FCC Rcd at 17100-01; 47 C.F.R. § 1.80(b)(4); 47 C.F.R. §
    1.80(b)(4), note to paragraph (b)(4), Section II.

[^19]: *See* 47 C.F.R. § 1.1914.