**DA 06-327**

**Released: February 13, 2006**

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

Meredith Corporation

WHNS(TV)

1716 Locust Street

Des Moines, IA 50309-3203

Re: Meredith Corporation

WHNS(TV), Greenville, SC

Facility ID No. 72300

File No. BRCT-20040802AKF

Dear Licensee:

This refers to your license renewal application for station WHNS(TV),
Greenville, SC.

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). 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." *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). The commercial limits became
effective on January 1, 1992. *Children's Television Programming,* 6 FCC
Rcd 5529, 5530 (1991).

On August 2, 2004, you filed the above-referenced license renewal
application for station WHNS(TV). In response to Section IV, Question 5
of that application, you certify that, during the previous license term,
station WHNS(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 25 to that application, you indicate that
station WHNS(TV) violated the children's television commercial limits
and/or policies on four occasions between July 8, 1998, and October 20,
2001. Of those four overages, three were 30 seconds in duration. You
attribute the conventional overages to human error and inadvertence and
describe corrective measures taken by station WHNS(TV) following these
violations.

The fourth incident you report occurred on July 8, 1998, when station
WHNS(TV) aired a commercial for a Buena Vista Television video product,
"The Spirit of Mickey," during "Quack Pack," a program in which Donald
Duck is a character. According to your description, this commercial
contained a still image of the VHS box cover of the video. You indicate
that an image of Donald Duck is visible on this box cover for
approximately two seconds. Other than the appearance of Donald Duck on
the box cover, you maintain, there is no relationship between the "Quack
Pack" program and the product. For these reasons, you argue that the
appearance of Donald Duck on the videotape during the "Quack Pack"
program arguably constitutes a host-selling violation rather than a
program-length commercial. You state that co-owned television station
KPDX(TV), Vancouver, Washington, also aired the "Spirit of Mickey"
commercial during the "Quack Pack" program and note that in renewing
KPDX(TV)'s license, the then Mass Media Bureau (Bureau) found that the
broadcast of this commercial during the "Quack Pack" program constituted
a program-length commercial. *Letter to Meredith Corporation
(KPDX(TV))*, MMB Admonition dated December 21, 1999 *(Meredith
Corporation)*. You disagree with the Bureau's conclusion and assert that
the advertisement improperly utilized Donald Duck in a host-selling
arrangement. By way of explanation for the occurrence in this case, you
indicate that Buena Vista Television notified station WHNS(TV) of the
potential problem after the close of business on July 7, 1998, and that
the station's staff did not view the notification until the start of the
business day on July 8, 1998 after the "Quack Pack" program had aired at
8:00 a.m.

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."[^1] 6 FCC Rcd at 2118. 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),* 12 FCC Rcd 19504, 19505 (MMB 1997),
*aff'g* 9 FCC Rcd 2547 (MMB 1994).

With this in mind, we disagree with Meredith Corporation (Meredith) that
the broadcast of the commercial for the video "The Spirit of Mickey"
during the "Quack Pack" program does not constitute a program-length
commercial. Meredith asserts that other than the appearance of Donald
Duck on the box, there is no relationship between the "Quack Pack"
program and "The Spirit of Mickey" video, and that consequently, the
appearance of Donald Duck on the video constitutes a host-selling
violation rather than a program-length commercial. However, as we stated
in *Meredith Corporation*, "the presence of Donald Duck on the home
video cover suggests his appearance in 'The Spirit of Mickey' video
itself," and "such a product containing Donald Duck as a character
relates to the television program in which Donald Duck also appears as a
character." *Id*. at 3. Moreover, although Meredith contends that an
image of Donald Duck is visible on the video appeared for approximately
two 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. (KBKH-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 (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"). Based on
these circumstances, where there is a clear potential for confusion in
the minds of young children, the Commission's program-length commercial
policy is applicable. 12 FCC Rcd at 19506.

Regarding the reasons given for the violation, the fact that the
program-length commercial at issue here occurred because the commercial
was inserted into the program by the program's distributor does not
absolve Meredith 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 our children's
television rules and policies will not excuse or mitigate violations
which do occur. *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). The reasons
Meredith cites for the conventional overages, human error and
inadvertence, do not mitigate or excuse the violations. In fact, the
Commission has repeatedly rejected human error and inadvertence as bases
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))*, 10 FCC Rcd
4957 (MMB 1995); *Ramar Communications, Inc. (KJTV(TV))*, 9 FCC Rcd 1831
(MMB 1994). Nor do corrective actions which have been taken to prevent
subsequent violations of the children's television rules and policies
relieve the licensee of liability for the violations which have
occurred. *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).

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 WHNS(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, Kevin P. Latek, Esquire, Dow,
Lohnes & Albertson, PLLC, 1200 New Hampshire Avenue, N.W., Suite 800,
Washington, D.C. 20036.

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

[^1]: 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." *Children's
    Television Programming (Recon.),* 6 FCC Rcd at 5099. To prevent
    confusion, the Commission "specifically note\[d\] that intervening
    commercial matter will not suffice as a separation device." *Id.* at
    5099 n.89.