**DA 06-24**

**Released: January 9, 2006**

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

WMMF License, LLC

WWAZ-TV[^1]

500 South Chinowth Road

Visalia, CA 93277

Re: WMMF License, LLC

WWAZ-TV, Fond du Lac, WI

Facility ID No. 60571

File No. BRCT-20050801CYT

Dear Licensee:

This refers to your license renewal application for station WWAZ-TV,
Fond du Lac, WI.

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

On August 1, 2005, you filed the above-referenced license renewal
application for station WWAZ-TV. In response to Section IV, Question 5
of that application, you certify that, during the previous license term,
WWAZ-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 to that application, you indicate that station
WWAZ-TV exceeded the children's television commercial limits on April
14, 2001, when a commercial with content advertising Nana Puddin'
products aired during the program "The Nana Puddin' Show." You attribute
the violation to inadvertence and state that the commercial was included
in the program provided by FamilyNet. Finally, you describe the
corrective measures taken by station WWAZ-TV to ensure future compliance
with the commercial limits.

In *Children's Television Programming (Recon.), supra,* 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."[^2] In order to ensure that there was no confusion, the
Commission "specifically note\[d\] that intervening commercial matter
will not suffice as a separation device."[^3] The Commission, moreover,
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.[^4]

Although you indicate that the program-length commercial was included in
the program provided by FamilyNet, this does not relieve WWAZ-TV 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). Moreover, you claim that the violation resulted
from inadvertence. However, inadvertence does not mitigate or excuse the
violation. In fact, the Commission has repeatedly rejected inadvertence
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))*, 10 FCC Rcd 4957 (MMB 1995); *Ramar Communications,
Inc. (KJTV(TV))*, 9 FCC Rcd 1831 (MMB 1994). Furthermore, corrective
actions may have been taken to prevent subsequent violations of the
children's television rules and policies, but that, too, does not
relieve WWAZ-TV 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
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 WWAZ-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.

In evaluating an application for license renewal, the Commission's
decision is governed by Section 309(k) of the Communications Act of
1934, as amended (Act), 47 U.S.C. § 309(k). Section 309(k) provides that
if, upon consideration of the application and pleadings, we find that
(1) the station has served the public interest, convenience, and
necessity; (2) there have been no serious violations of the
Communications Act or the Commission's Rules; and (3) there have been no
other violations which, taken together, constitute a pattern of abuse,
we are to grant the renewal application.[^5] If, however, the licensee
fails to meet that standard, the Commission may deny the application --
after notice and opportunity for a hearing under Section 309(e) of the
Act -- or grant the application "on terms and conditions that are
appropriate, including a renewal for a term less than the maximum
otherwise permitted."[^6]

On balance, we find that WWMF License, LLC's violation of Section 73.670
does not constitute a "serious violation" of the Commission's rules
warranting designation for evidentiary hearing. Moreover, we find no
evidence of violations that, when considered together, evidence a
pattern of abuse. Further, we find that station WWAZ-TV served the
public interest, convenience, and necessity during the subject license
term.

Accordingly, IT IS ORDERED that, a copy of this Letter shall be sent by
First Class and Certified Mail, Return Receipt Requested to WMMF
License, LLC at the address listed above, and to its counsel, John G.
Johnson, Jr., Esquire, Paul, Hastings, Janofsky & Walker LLP, 875 15^th^
Street, N.W., Washington, D.C. 20005.

Finally, IT IS ORDERED that, the application of WMMF License, LLC, for
renewal of license for station WWAZ-TV, Fond du Lac, Wisconsin
(BRCT-20050801CYT), IS HEREBY GRANTED.

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

[^1]: The Commission's records indicate that on October 19, 2004, the
    station's call sign was changed from WMMF-TV to WWAZ-TV.

[^2]: 6 FCC Rcd 5099.

[^3]: *Id.* at 5099 n.89.

[^4]: 6 FCC Rcd at 2118.

[^5]: 47 U.S.C. § 309(k)(1). The renewal standard was amended to read as
    described by Section 204(a) of the Telecommunications Act of 1996,
    Pub. L. No. 104-104, 110 Stat. 56 (1996). S*ee Order, Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, 11 FCC Rcd 6363 (1996).

[^6]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).