**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | Facility I.D. No. 69571      |
|                                  | *) |                              |
| Tribune Television Holdings,     | ** | NAL/Acct. No. 0741420048     |
| Inc.                             |    |                              |
|                                  | *  | FRN: 0005263884              |
| Licensee of Station KMYQ(TV)     | *) |                              |
|                                  | ** |                              |
| Seattle, Washington              |    |                              |
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+----------------------------------+----+------------------------------+

**NOTICE OF APPARENT**

**LIABILITY FOR FORFEITURE**

**Adopted: June 14, 2007 Released: June 22, 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 Tribune Television Holdings, Inc. (the "Licensee"), licensee of
    Station KMYQ(TV), Seattle, Washington (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 October 2, 2006, the Licensee filed its license renewal
    application (FCC Form 303-S) for Station KMYQ(TV) (the
    "Application") (File No. BRCT-20061002BCI). In response to Section
    IV, Question 5 of the Application, the Licensee stated that, during
    the previous license term, it 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 September 25, 2000, and April 8, 2005, it violated the
    children's television commercial limits on seven occasions. Of these
    overages, one was 30 seconds in duration, one was 60 seconds in
    duration, and four were program-length commercials. The Licensee
    stated that the 60-second overage occurred when the entity that
    provides the WB Network program with format, content integration,
    and satellite uplink services incorrectly inserted commercial
    content into a children's program. The Licensee attributed three of
    the program-length commercials to an error on the part of the
    national buying service which provided the commercials to the
    Station. The Licensee indicated that one program-length commercial
    and the 30 second overage were caused by human error and/or
    inadvertence. In addition, the Licensee described corrective
    measures taken by the Station to ensure future compliance with the
    children's television commercial limits.

4.  The Licensee also stated that the Station aired a commercial for the
    Nintendo GameBoy E-Reader, during the "Pokemon" program. The
    Licensee indicated that the Station 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. The Licensee stated that, the
    image, in which only the letters "MON" are visible for just over one
    second, does not depict any "Pokemon" character. According to the
    Licensee's description, the "Pokemon" card appears as the third of
    six cards arranged in the shape of a fan during the display and
    "Pokemon" is not mentioned in the audio of the commercial. The
    Licensee maintained that it had been its good faith judgment that
    the program-length commercial policy was 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.

**III. DISCUSSION**

5.  Station KMYQ(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. 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.[^5] 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 its
    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 in children's programming.

6.  Congress was particularly concerned about program-length commercials
    because young children often have difficulty distinguishing between
    commercials and programs.[^6] 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."[^7]

7.  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.[^8] The reasons the Licensee
    cited for one program-length commercial and the 30 second overage,
    inadvertence and human error, do not mitigate or excuse them. The
    Commission has repeatedly rejected inadvertence and human error as
    bases for excusing violations of the children's television
    commercial limits.[^9] The remaining violations were attributed to
    errors on the part of a national buying service or the Station's
    television network. However, 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.[^10] Nor does the
    Licensee's implementation of policies to prevent subsequent
    violations of the Commission's children's television rules and
    policies relieve it of liability for violations which have
    occurred.[^11]

8.  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]

9.  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]

10. 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**

11. 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 Tribune Television Holdings, 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.

12. 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,* Tribune Television Holdings, Inc. SHALL PAY the full amount
    of the proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

13. 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.

14. 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.

15. 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.

16. 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]

17. IT IS FURTHER ORDERED that copies of this *NAL* shall be sent, by
    First Class and Certified Mail, Return Receipt Requested, to Tribune
    Television Holdings, Inc., 1813 Westlake Avenue, North, Seattle,
    Washington 98109, 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]: *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").

[^6]: S. Rep. No. 227, 101^st^ Cong., 1^st^ Sess. 24 (1989).

[^7]: *Children's Television Programming,* 6 FCC Rcd at 2118.

[^8]: *Id.* at 2117-18.

[^9]: *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).

[^10]: *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).

[^11]: *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).

[^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.