**DA 04-3455**

**Released: October 29, 2004**

> Facility I.D. No. 30576

In reply refer to: 1800E2-KH

**[CERTIFIED MAIL -- RETURN RECEIPT REQUESTED]{.underline}**

WBDC Broadcasting, Inc.

Licensee, Station WBDC-TV

2121 Wisconsin Avenue, NW

Suite 350

Washington, DC 20007

Dear Licensee:

This refers to your license renewal application for station WBDC-TV,
Washington, DC (BRCT-20040601AYY).

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, 2004, you filed the above-referenced license renewal
application for station WBDC-TV. In response to Section IV, Question 5
of that application, you certify that, during the previous license term,
station WBDC-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 to that application, you indicate that
station WBDC-TV violated the children's television commercial limits and
policies on two occasions between November 16, 1999, and April 15, 2004,
and describe the corrective measures taken subsequently to prevent
future violations. You state that one conventional overage was 45
seconds in duration and the other one was 30 seconds in duration. You
attribute the two conventional overages to formats or errors which
occurred in the programming supplied by the station's national
television network, The WB Network ("WB Network").

You also indicate that, in your view, another instance did not
constitute a commercial overage, but that you nonetheless reported it in
your quarterly certification as a matter of prudence and full
disclosure.[^1] You state that this incident occurred on September 24,
2002, when station WBDC-TV aired a WB Network commercial for the
Nintendo GameBoy E-Reader, during the "Pokemon" program. You assert that
station WBDC-TV was not warned, and did not know until after broadcast,
when WB Network brought the matter to the licensee's attention, that the
commercial contained a "fleeting, obscured image" of a "Pokemon" game
card. You state that, the image, in which only the letters "MON" are
visible for just over one second, does not depict any "Pokemon"
character. According to your description, the "Pokemon" card appears as
three of six cards arranged in the shape of a fan during the display and
"Pokemon" is not mentioned in the audio of the commercial. You maintain
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, you
contend that the WB Network expressed its belief that the GameBoy
commercial does not violate the Commission's rules or policies of the
Children's Television Act's commercial time limits. You argue that this
"brief" display of three letters from the word "Pokemon" in a commercial
for an unrelated product in a quickly moving video display that contains
no reference to "Pokemon" does not violate the Commission's rules.
Although disclosure is not legally necessary in this case, you assert,
you are nevertheless reporting this incident because the WB Network
brought the matter to Station WBDC-TV's attention and you prefer to
document your compliance efforts concerning advertising in children's
programs. Finally, you state that Station WBDC-TV wishes to avoid any
question regarding this issue, and consequently, the licensee has
adopted a policy to ensure that the E-Reader commercial will not air in
the future in or adjacent to the "Pokemon" program.

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, 101^st^ Cong., 1^st^ 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] 6 FCC Rcd at 2118. 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),* 12 FCC Rcd 19504, 19505 (MMB 1997),
*aff'g* 9 FCC Rcd 2547 (MMB 1994).

With this in mind, we disagree with WBDC Broadcasting Inc. (WBDC) and
Tribune Company (Tribune), its ultimate corporate parent, that the
broadcast of the commercial for the Nintendo GameBoy E-Reader during the
"Pokemon" program does not constitute a program-length commercial.
Though WBDC contends that the image appears appeared for just over 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. *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 my
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. *See Id.* at 19506.

Regarding the reasons given for the commercial overages, the fact that
both commercial overages at issue here were the result of formats or
errors which occurred in the programming supplied by Station WBDC-TV's
national television network does not absolve WBDC of responsibility for
the violations. Similarly, the fact that the program-length commercial
was inserted into the program by station's WBDC-TV's national television
network does not relieve WBDC of responsibility for the violation. In
this regard, 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. *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); *WRGB
Broadcasting, Inc.,* MMB Admonition dated August 10, 1994. Moreover, to
the extent WBDC suggests that the conventional overages 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))*, 10 FCC
Rcd 4957 (MMB 1995); *Ramar Communications, Inc. (KJTV(TV))*, 9 FCC Rcd
1831 (MMB 1994). Furthermore, corrective actions may have been taken to
prevent subsequent violations of the children's television rules and
policies, but that, too, does not relieve WBDC of liability for the
violations which have occurred. *See, e.g., WHP Television, L.P.
(WHP-TV)*, 10 FCC Rcd 4979, 4980 (MMB 1995); *Mountain States
Broadcasting, Inc. (KMSB-TV)*, 9 FCC Rcd 2545, 2546 (MMB 1994); *R&R
Media Corporation WTWS(TV))*, 9 FCC Rcd 1715, 1716 (MMB 1994); *KEVN,
Inc.* *(KEVN-TV)*, 8 FCC Rcd 5077, 5078 (MMB 1993); *International
Broadcasting Corp.*, 19 FCC 2d 793, 794 (1969). However, 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 WBDC-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.

> Sincerely,
>
> Barbara A. Kreisman
>
> Chief, Video Division
>
> Media Bureau

cc: Clark Wadlow, Esq.

[^1]: You report that, pursuant to grant of an assignment application,
    Tribune Company, the ultimate corporate parent of WBDC Broadcasting,
    Inc., became the ultimate owner of WBDC-TV on November 16, 1999.
    Moreover, you state that, as part of the assumption of control, WBDC
    assumed responsibility for a reporting condition imposed in the
    station's renewal of license, requiring it to submit quarterly
    certifications concerning station WBDC-TV's compliance with the
    limits on commercial matter set forth in Section 73.670 of the
    Commission's rules.

[^2]: 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." *Children's
    Television Programming (Recon.),* 6 FCC Rcd at 5099. To prevent
    confusion, the Commission "specifically note\[d\] that intervening
    commercial matter will not suffice as a separation device." *Id.* at
    5099 n.89.