**DA 06-406**

**Released: February 24, 2006**

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

Channel 39, Inc.

WBZL(TV)

2055 Lee Street

Hollywood, FL 33020

Re: Channel 39, Inc.

WBZL(TV), Miami, FL

Facility ID No. 10203

File No. BRCT-20040930APN

Dear Licensee:

This refers to your license renewal application for station WBZL(TV),
Miami, FL.

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 September 30, 2004, you filed the above-referenced license renewal
application for station WBZL(TV). In response to Section IV, Question 5
of that application, you certify that, during the previous license term,
WBZL(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
WBZL(TV) violated the children's television commercial limits and
policies on two occasions between September 24, 2002, and October 20,
2003, and describe the corrective measures taken subsequently to prevent
future violations. You indicate that one conventional overage occurred
on October 20, 2003, during the 2:00 p.m. to 3:00 p.m. clock hour, and
lasted ten seconds. You attribute this overage to human error.

You also indicate that, in your view, another instance did not
constitute a commercial overage, but that you are nonetheless reporting
it because the station prefers to completely document its efforts to
comply with the limits on commercial matter in children's programming.
Specifically, you state that on September 24, 2002, station WBZL(TV)
aired a WB Network commercial for the Nintendo GameBoy E-Reader, during
the "Pokemon" program. You assert that station WBZL(TV) was not warned,
and did not know until after broadcast, when the 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 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. You attribute this
incident to formats or errors which occurred in the programming supplied
by the WB Network. Finally, you state that station WBZL(TV) wishes to
avoid any question regarding this issue, and consequently, the licensee
has adopted a policy to ensure that the GameBoy 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."[^1] 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)
*(Scripps Howard)*, *aff'g* 9 FCC Rcd 2547 (MMB 1994).

With this in mind, we disagree with Channel 39, Inc. (Channel 39) and
the WB Network that the broadcast of the commercial for the Nintendo
GameBoy E-Reader during the "Pokemon" program does not constitute a
program-length commercial. Though Channel 39 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 Scripps Howard,* 12 FCC Rcd at 19506.

Although Channel 39 argues 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))*, 10 FCC
Rcd 4957 (MMB 1995); *Ramar Communications, Inc. (KJTV(TV))*, 9 FCC Rcd
1831 (MMB 1994). Moreover, the fact that the program-length commercial
was inserted into the program by station WBZL(TV)'s national television
network does not relieve Channel 39 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).
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 Channel 39 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).

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 WBZL(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.

Accordingly, IT IS ORDERED that, a copy of this Letter shall be sent by
First Class and Certified Mail, Return Receipt Requested to Channel 39,
Inc. at the address listed above, and to its counsel, Jennifer Tatel,
Esquire, Sidley Austin Brown & Wood LLP, 1501 K Street, N.W.,
Washington, D.C. 20005.

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

[^1]: 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.