**DA 07-1222**

**Released: March 9, 2007**

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

Hearst-Argyle Stations, Inc.

KQCA(TV)

c/o Brooks Pierce McLendon Humphrey & Leonard, LLP

P.O. Box 1800

Raleigh, North Carolina 27602

Re: Hearst-Argyle Stations, Inc.

KQCA(TV), Stockton, California

Facility ID No. 10242

File No. BRCT-20060809AAP

Dear Licensee:

This refers to your license renewal application for station KQCA(TV),
Stockton, California.

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").[^1]

On August 9, 2006, you filed the above-referenced license renewal
application for station KQCA(TV). In response to Section IV, Question 5
of that application, you certify that, during the previous license term,
KQCA(TV) failed to comply with the limits on commercial matter in
children's programming specified in Section 73.670 of the Commission's
Rules. In Exhibit 19, you indicate that station KQCA(TV) violated the
children's television commercial limits and policies on August 24, 2002,
and September 24, 2002. First, you state that one conventional overage
occurred on August, 24, 2002, and was 30-seconds in duration. You
attribute this incident to human error and describe corrective measures
taken to prevent future violations.

Second, you report that on September 24, 2002, station KQCA(TV) aired a
WB Television Network commercial for the Gameboy Advance E-Reader,
during the "Pokemon" program. According to your description, the
commercial contained "fleeting partial images of three Pokemon game
cards" displayed as three cards within a six card fan arrangement. You
state that the partially hidden "Pokemon" cards were visible for
approximately 1.04 seconds and that "Pokemon" is not mentioned in the
audio of the commercial. In addition, you indicate that only the letters
"MON" were visible and that no "Pokemon" characters were discernible.
You assert that this incident differs from the instances in which the
Commission has concluded that a program constitutes a program-length
commercial. Specifically, you argue that in previous cases, the
commercials depicted characters for a longer period of time than the
"Pokemon" game cards were shown in this case. Consequently, you contend,
the characters in prior cases were more recognizable than the "Pokemon"
cards in this case. You argue that even if the "Pokemon" game cards had
been visible for more than one second, they were not identifiable in the
commercial for the Gameboy Advance E-Reader because no "Pokemon\"
characters were shown, no more than half of each card was displayed and
only the letters "MON" were visible. You also indicate that the
"Pokemon" episode in which the Gameboy Advance E-Reader commercial
appeared did not contain any "Pokemon" game cards. Thus, you opined that
this incident does not constitute a program-length commercial because
children would not perceive any linkage between the "Pokemon" program
and the Gameboy Advance E-Reader commercial.

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, 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.[^3]

With respect to the station's broadcast of the commercial for the
Gameboy Advance E-Reader, although you assert that the "Pokemon" game
cards appeared for 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 numerous occasions that,
where a commercial announcement includes a product related to the
program in which the commercial is broadcast, the program is a
program-length commercial regardless of the duration of the appearance
of the program-related product in the commercial.[^4] Moreover, you
acknowledge that the commercial contained images of three "Pokemon" game
cards. 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 shown given the images of "Pokemon" game cards contained in
the commercial and the consequent likelihood that children may associate
it with the program.

Although you indicate that the 30-second overage resulted from human
error, this does not mitigate or excuse the violations. In this regard,
the Commission has repeatedly rejected human error and inadvertence as a
basis for excusing violations of the children's television commercial
limits.[^5] 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 KQCA(TV) of liability for
violations which have occurred.[^6]

Based upon the record before us, 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 admitted violations of Section 73.670 of the
Rules described in station KQCA(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
Hearst-Argyle Stations, Inc. at the address listed above, and to Mark J.
Prak, Esquire, Brooks Pierce McLendon Humphrey & Leonard, LLP, P.O. Box
1800, Raleigh, North Carolina 27602.

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

[^1]: *Children's Television Programming*, 6 FCC Rcd 2111, 2118, *recon.
    granted in part*, 6 FCC Rcd 5093, 5098 (1991).

[^2]: *Children's Television Programming,* 6 FCC Rcd at 2118.

[^3]: *See, e.g.,* *Scripps Howard Broadcasting Company (KNXV-TV),* 12
    FCC Rcd 19504, 19505 (MMB 1997) *(Scripps Howard)*, *aff'd* 9 FCC
    Rcd 2547 (MMB 1994).

[^4]: *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").

[^5]: *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).

[^6]: *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).