**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | Facility I.D. No. 36395      |
|                                  | *) |                              |
| KLGT Licensee, LLC               | ** | NAL/Acct. No. 0941420010     |
|                                  |    |                              |
| Licensee of Station WUCW(TV)[^1] | *  | FRN: 0003865078              |
|                                  | *) |                              |
| Minneapolis, Minnesota           | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**NOTICE OF APPARENT**

**LIABILITY FOR FORFEITURE**

**Adopted: January 21, 2009 Released: January 23, 2009**

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"),[^2] by the Chief, Video Division, Media Bureau pursuant to
    authority delegated under Section 0.283 of the Rules,[^3] we find
    that KLGT Licensee, LLC (the "Licensee"), licensee of Station
    WUCW(TV), Minneapolis, Minnesota (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.[^4] 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 eight thousand
    dollars (\$8,000).

**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").[^5] 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."[^6]

3.  On November 28, 2005, the Licensee filed its license renewal
    application (FCC Form 303-S) for Station WUCW(TV) (the
    "Application") (File No. BRCT-20051128ATB). 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 and a March 1, 2007 amendment to
    the Application, the Licensee indicated that between November 18,
    1999, and December 23, 2006, it violated the children's television
    commercial limits on six occasions. Of these overages, one was
    15-seconds in duration, two were thirty-seconds in duration, one was
    45-seconds in duration, one was 60-seconds in duration, and one was
    90-seconds in duration. The Licensee asserted that the 15-second
    overage occurred as a result of an equipment malfunction in the
    software program at the WB Network, and it attributed the 90-second
    overage to human error on the part of an employee of GDMX, an entity
    that provides the WB Network with program format, content
    integration, and satellite uplink services. It attributed the
    remaining four conventional overages to human error and/or
    inadvertence on the part of Station employees.

4.  Additionally, the Licensee reported that on September 24, 2002, the
    Station aired a commercial for the Gameboy Advance E-Reader during
    the "Pokemon" program. According to the Licensee's description,
    three "Pokemon" game cards were shown for approximately 1.04
    seconds. The Licensee also indicated that the "Pokemon" game cards
    were partially hidden and only the letters "MON" were identifiable.
    The Licensee stated that the "Pokemon" characters on the cards were
    not identifiable and were not verbally identified during the
    commercial. The Licensee maintained that the appearance of these
    cards could not have confused the viewer and that it does not
    believe that this occurrence violates the children's programming
    commercial limits rules.

5.  Further, the Licensee stated that on July 12, 2004, the Station
    aired a commercial for Cinnamon Toast Crunch during the "Sabrina"
    program. The Licensee indicated that the image of several DVDs that
    were being given away in boxes of Cinnamon Toast Crunch appeared at
    the end of the commercial. The Licensee stated that the image of one
    of these DVDs included the "Sabrina" character and that it was
    visible for less than two seconds. The Licensee maintained that the
    appearance of this character "without any verbal reference to the
    character or the show" would not have confused the viewer and that
    it does not believe that this incident violates the children's
    programming commercial limits rules.

6.  The remaining incident the Licensee reported was a violation of the
    Commission's host-selling policy. It occurred on December 23, 2006,
    when the Station aired a CW Network commercial for Post Cereal's
    Cocoa Pebbles during the "Xiaolin Showdown" program. According to
    the Licensee, images from Post Cereal's postopia.com website
    appeared, including images of the website's navigation bar. The
    Licensee stated that the navigation bar included a "very brief"
    appearance of characters from the "Xiaolin Showdown" program. The
    Licensee also described the steps it has taken to prevent future
    violations of the children's television commercial limits.

**III. DISCUSSION**

7.  Station WUCW(TV)'s broadcast of material that exceeded the
    children's television commercial limits constitutes an apparent
    willful and repeated violation of Section 73.670.[^7] The Licensee
    contended that the "Pokemon" game cards appeared for approximately
    1.04 seconds during the commercial for the Gameboy Advance E-Reader,
    and that the Sabrina character was visible for less than two seconds
    during the commercial for Cinnamon Toast Crunch. However, 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.[^8]

8.  Moreover, we believe that, in the context of the cognitive abilities
    of young children, there is the potential for confusion between the
    Gameboy Advance E-Reader commercial and the "Pokemon" program
    regardless whether any "Pokemon" character is identifiable given
    that three "Pokemon" game cards were shown in the commercial and the
    consequent likelihood that children may associate them with the
    program. Further, we believe that, in the context of the cognitive
    abilities of young children, there is the potential for confusion
    between the commercial for Cinnamon Toast Crunch and the "Sabrina"
    program regardless whether there was any verbal mention of the
    character or the show given the appearance of the Sabrina character
    in the commercial and the consequent likelihood that children may
    associate it with the "Sabrina" program. With respect to the
    "Xiaolin Showdown" program that aired on December 23, 2006, we agree
    with the Licensee that this incident is more akin to a host-selling
    violation, than a program-length commercial.

9.  Congress was particularly concerned about program-length commercials
    because young children often have difficulty distinguishing between
    commercials and programs.[^9] 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."[^10]

10. 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.[^11] Although the Licensee
    indicated that four of the conventional overages resulted from human
    error and/or inadvertence on the part of Station employees, this
    does not mitigate or excuse the violations. In this regard, the
    Commission has repeatedly rejected human error and inadvertence as a
    basis for excusing violations of the children's television
    commercial limits.[^12] To the extent the Licensee has argued that
    the 90-second overage and one of the program-length commercials
    resulted from the insertion of commercial matter in programming
    supplied by a program distributor or were inserted into the program
    by the Station's television network, this does not relieve it of
    responsibility for the violations. 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.[^13] Furthermore, the Licensee's implementation of policies
    to prevent subsequent violations of the Commission's children's
    television rules and policies does not relieve the Licensee of
    liability for violations which have occurred.[^14]

11. 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.[^15] 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.[^16] 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,[^17] and the Commission has so interpreted the term in the
    Section 503(b) context.[^18] 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."[^19]

12. 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.[^20] 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."[^21]

13. In this case, the Licensee failed to comply with the limits on
    commercial matter in children's programming on seven occasions,
    including two program-length commercials. Accordingly, we find that
    the Licensee is apparently liable for a forfeiture in the amount of
    \$8,000 for its apparent willful and repeated violation of Section
    73.670.

**IV. ORDERING CLAUSES**

14. 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 KLGT Licensee, LLC is hereby NOTIFIED of
    its APPARENT LIABILITY FOR FORFEITURE in the amount of eight
    thousand dollars (\$8,000) for its apparent willful and repeated
    violation of Section 73.670 of the Commission's Rules.

15. 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,* KLGT Licensee, LLC SHALL PAY the full amount of the proposed
    forfeiture or SHALL FILE a written statement seeking reduction or
    cancellation of the proposed forfeiture.

16. 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 in the caption above.  Payment by check or money order
    may be mailed to Federal Communications Commission, at P.O. Box
    979088, St. Louis, MO  63197-9000.  Payment by overnight mail may be
    sent to U.S. Bank-Government Lockbox #979088, SL-MO-C2-GL, 1005
    Convention Plaza, St. Louis, MO  63101.  Payment by wire transfer
    may be made to ABA Number 021030004, receiving bank: TREAS NYC, BNF:
    FCC/ACV\--27000001 and account number as expressed on the remittance
    instrument.  If completing the FCC Form 159, enter the NAL/Account
    number in block number 23A (call sign/other ID), and enter the
    letters "FORF" in block number 24A (payment type code).

17. 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.

18. 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.

19. 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.[^22]

20. IT IS FURTHER ORDERED that copies of this *NAL* shall be sent, by
    First Class and Certified Mail, Return Receipt Requested, to KLGT
    Licensee, LLC, c/o Pillsbury Winthrop Shaw Pittman LLP, 2300 N
    Street, N.W., Washington, D.C. 20037-1128, and to its counsel,
    Kathryn Schmeltzer, Esquire, Pillsbury Winthrop Shaw Pittman LLP,
    2300 N Street, N.W., Washington, D.C. 20037-1128.

FEDERAL COMMUNICATIONS COMMISSION

Barbara A. Kreisman

Chief, Video Division

Media Bureau

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

[^2]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.

[^3]: See 47 C.F.R. § 0.283.

[^4]: *See* 47 C.F.R. § 73.670.

[^5]: *Children's Television Programming*, 6 FCC Rcd 2111, 2118, *recon.
    granted in part*, 6 FCC Rcd 5093, 5098 (1991).

[^6]: *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).

[^7]: As indicated above, the Licensee attributed a 15-second overage to
    an equipment malfunction at the WB Network. 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 15-second
    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.

[^8]: *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").

[^9]: S. Rep. No. 227, 101^st^ Cong., 1^st^ Sess. 24 (1989).

[^10]: *Children's Television Programming,* 6 FCC Rcd at 2118.

[^11]: *Children's Television Programming,* 6 FCC Rcd at 2117-18.

[^12]: *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).

[^13]: *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).

[^14]: *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).

[^15]: 47 U.S.C. § 503(b)(1)(B); s*ee also* 47 C.F.R. § 1.80(a)(1).

[^16]: 47 U.S.C. § 312(f)(1).

[^17]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^18]: *See Southern California Broadcasting Co.*, Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991).

[^19]: 47 U.S.C. § 312(f)(2).

[^20]: *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.

[^21]: 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.

[^22]: *See* 47 C.F.R. § 1.1914.