**DA 07-1594**

**Released: April 4, 2007**

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

KUPN Licensee, LLC

KVMY(TV)[^1]

c/o Pillsbury Winthrop Shaw Pittman LLP

ATTN: Kathryn Schmeltzer, Esq.

2300 N Street, N.W.

Washington, D.C. 20037-1128

Re: KUPN Licensee, LLC

KVMY(TV), Las Vegas, NV

Facility ID No. 10179

File No. BRCT-20060531AGC

Dear Licensee:

This refers to your license renewal application for station KVMY(TV),
Las Vegas, NV.

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.[^2] The commercial limitations
became effective on January 1, 1992.[^3]

On May 31, 2006, you filed the above-referenced license renewal
application for station KVMY(TV). In response to Section IV, Question 5
of that application, you certify that, during the previous license term,
KVMY(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, you indicate that station KVMY(TV) violated the
children's television commercial limits and policies on September 24,
2002 and November 18, 1999. First, you state that one conventional
overage occurred on November 18, 1999 and was 15 seconds in duration.

Second, you report that on September 24, 2002 station KVMY(TV) aired a
commercial for the Gameboy Advance E-Reader aired during the "Pokemon"
program. According to your description, three "Pokemon" game cards were
shown for approximately 1.04 seconds. You also indicate that the
"Pokemon" game cards were partially hidden and only the letters "MON"
were identifiable. You state that the "Pokemon" characters on the cards
were not identifiable and were not verbally identified during the
commercial. You maintain that the appearance of these cards could not
have confused the viewer and that you do not believe that this
occurrence violates the children's programming commercial limits rules.

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.[^4]
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."[^5] 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.[^6]

With respect to the station's broadcast of the commercial for the
Gameboy Advance E-Reader, although you contend that the "Pokemon" game
cards appeared for approximately 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, then the program is a
program-length commercial regardless of the duration of the appearance
of the program-related product in the commercial.[^7] 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 identifiable given the image of a "Pokemon" game card
contained in the commercial and the consequent likelihood that children
may associate it with the program.

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 appears to have been an
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 KVMY(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 the licensee
at the address listed above, and to its counsel, Kathryn R. Schmeltzer,
Esquire, Pillsbury Winthrop Shaw Pittman LLP, 2300 N Street, N.W.,
Washington, D.C. 20037-1128.

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

[^1]: On June 19, 2006, the Station's Call Sign was changed from
    KVWB(TV) to KVMY(TV).

[^2]: *Children's Television Programming*, 6 FCC Rcd 2111, 2118, *recon.
    granted in part*, 6 FCC Rcd 5093, 5098 (1991).

[^3]: *Children's Television Programming,* 6 FCC Rcd 5529, 5530 (1991).

[^4]: S. Rep. No. 227, 101^st^ Cong., 1^st^ Sess. 24 (1989).

[^5]: *Children's Television Programming,* 6 FCC Rcd at 2118.

[^6]: *See, e.g.,* *Scripps Howard Broadcasting Company (KNXV-TV),* 9
    FCC Rcd 2547 (1994), *aff'd* 12 FCC Rcd 19504, 19505 (MMB 1997).

[^7]: *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").