**DA 08-2292**

**Released: October 14, 2008**

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

WCWB Licensee, LLC

WPMY(TV)

c/o Kathryn Schmeltzer, Esq.

Pillsbury Winthrop Shaw Pittman LLP

2300 N Street, N.W.

Washington, D.C. 20037-1128

Re: WCWB Licensee, LLC

WPMY(TV), Pittsburgh, Pennsylvania

Facility ID No. 73907

File No. BRCT-20070329ABJ

Dear Licensee:

This refers to your license renewal application for station WPMY(TV),
Pittsburgh, Pennsylvania.

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 commercial 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 by such
stations 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.[^1] In addition, the Commission reiterated its long-standing
policy against "host-selling," *i.e,* "the use of program talent to
deliver commercials," including "endorsements or selling by animated
cartoon characters as well as 'live' program hosts."[^2]

On March 29, 2007, you filed the above-referenced license renewal
application for station WPMY(TV). In response to Section IV, Question 5
of that application, you certify that, during the previous license term,
WPMY(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 state that on September 11, 2000, station
WPMY(TV) aired a Warner Brothers Network ("WB Network") commercial for
Mattel during the WB Network's "Max Steel" program. You report that
during the commercial, an image of the Max Steel character was visible
for one half of a second. You opine that, at most, the incident may have
violated the Commission's broadcast host-selling policy. You assert,
however, that you should not be sanctioned for this incident because
station WPMY(TV) was "not involved in the selection, planning, or
approval of the network commercials aired" during the "Max Steel"
program.[^3]

In *Children's Television Programming (Recon.),* the Commission stated
that, in order 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."[^4] To
ensure that there was no confusion, the Commission "specifically
note\[d\] that intervening commercial matter will not suffice as a
separation device."[^5] The Commission made it clear in *Children's
Television Programming*, that program-length commercials, by their very
nature, are extremely serious, 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."[^6] Similarly,
the Commission has denounced the practice of host-selling because it
takes unfair advantage of the trust that children place in program
characters.[^7] The Commission has stated, moreover, that "host-selling
encompasses any character endorsement -- not just direct vocal appeals
-- that has the effect of confusing a child viewer from distinguishing
between program and non-program material."[^8]

Although you assert that the overage was inserted into the program by
the station's television network, this contention does not relieve you
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 the Commission's children's television
rules and policies will not excuse or mitigate violations which do
occur.[^9]

While we consider any violation of our rules limiting the amount of
commercial matter in children's programming to be significant, the
program-length commercial and/or host-selling violation described in
your renewal application appears to have been an isolated occurrence.
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 violation of the
children's television commercial limits rule and policies described in
station WPMY(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 the licensee
at the address listed above, and to its counsel, Kathryn 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]: *Children's Television Programming,* 6 FCC Rcd 2111, 2118, *recon.
    granted in part,* 6 FCC Rcd 5093, 5098 (1991).

[^2]: *Id.* at 2127 n.147, 6 FCC Rcd at 5097; *see also Action for
    Children's Television,* 50 FCC 2d 1, 8, 16-17 (1974).

[^3]: In support of this argument, you cite, *Complaints Against Various
    Television Licensees Concerning Their February 1, 2004, Broadcast of
    the Super Bowl XXXVIII Halftime Show,* 19 FCC Rcd 19230 ¶25 (2004).

[^4]: 6 FCC Rcd at 5099.

[^5]: *Id.* at 5099 n.89.

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

[^7]: *Children's Television Recon*., 6 FCC Rcd at 5097; *Action for
    Children's Television*, 50 FCC 2d at 16-17.

[^8]: *WHYY, Inc. (WHYY-TV),* 7 FCC Rcd 7123 (1992).

[^9]: *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).