**DA 07- 1388**

**Released: March 23, 2007**

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

WSTR Licensee, Inc.

WSTR-TV

c/o Pillsbury Winthrop Shaw Pittman LLP

ATTN: Kathryn Schmeltzer, Esq.

2300 N Street, N.W.

Washington, D.C. 20037-1128

Re: WSTR Licensee, Inc.

WSTR-TV, Cincinnati, OH

Facility ID No. 11204

File No. BRCT-20050601APH

Dear Licensee:

This refers to your license renewal application for station WSTR-TV,
Cincinnati, OH.

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, 2005, you filed the above-referenced license renewal
application for station WSTR-TV. In response to Section IV, Question 5
of that application, you certify that, during the previous license term,
WSTR-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 WSTR-TV violated the
children's television commercial limits and policies on two occasions
between September 24, 2002 and October 18, 2003. First, you state that
one conventional overage occurred on Saturday, October 18, 2003, and was
90 seconds in duration.[^1] You attribute this overage to human error.

The remaining incident you reported occurred on September 24, 2002 when
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 *de minimis* 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.
Nonetheless, you state, the licensee is disclosing this incident out of
an abundance of caution.

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] 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),* 9 FCC Rcd 2547 (1994), *aff'd* 12 FCC Rcd 19504, 19505 (MMB
1997).

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. *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 may 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. *Scripps Howard,* 12 FCC Rcd at 19506.

Further, although you argue 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))*, *supra; Ramar Communications, Inc. (KJTV(TV))*, 9 FCC Rcd
1831 (MMB 1994).

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 WSTR-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]: You also report a 15-second overage which occurred on November 18,
    1999, due to equipment malfunction in the software program at the WB
    Network that is responsible for the insertion of network
    commercials. In *Children's Television Programming,* the Commission
    specifically recognized that licensees may experience "occasional
    emergency scheduling change\[s\]," which would be taken into
    consideration in determining whether "extenuating circumstances"
    mitigated any resulting children's television commercial limits
    violations 6 FCC Rcd at 2126 n.123. On reconsideration, the
    Commission affirmed this policy, stating that "where the facts
    demonstrate that a slight overage is caused by a last-minute
    emergency scheduling change, we will consider such a lapse to be
    '*de minimis*.'" *Children's Television Programming (Recon.),* 6 FCC
    Rcd at 5096. Although the November 18, 1999 overage did not involve
    a last-minute emergency scheduling change, we believe the equipment
    malfunction which caused it constitutes an extenuating circumstance.
    Accordingly, that overage shall be considered *de minimis*, and
    shall not be considered in determining the sanction deemed
    appropriate for the other violations of the children's television
    commercial limits reported by the licensee.

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