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 DA  01-  849 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 April  6,  2001 
 In  Reply  Refer  to: 
 EB-  00-  IH-  0373/  MG 

 Judith  and  Garfield  Reeves-  Stevens 
 8929  Hollywood  Hills  Road 
 Los  Angeles,  CA  90046 

 Dear  Ms.  Reeves-  Stevens  and  Mr.  Reeves-  Stevens: 
 By  this  letter  we  close  our  investigation  into  an  alleged  violation  of  the  Commissions  policy 
 against  the  use  of  subliminal  perception  techniques  in  broadcasting  by  KTTV(  TV),  Los  Angeles,  CA  and 
 DirecTV. 

 Your  complaint  alleged  that  KTTV(  TV)  may  have  broadcast  a  subliminal  text  message  during  an 
 episode  of  The  X-  Files,  which  aired  on  KTTV(  TV)  between  9:  00  p.  m.  and  10:  00  p.  m.,  Pacific  time,  on 
 Sunday,  November  5,  2000.  Specifically,  you  stated  that  the  allegedly  subliminal  message  appeared 
 between  a  group  of  commercials  and  the  resumption  of  an  episode  of  The  X-  Files.  The  message  read: 
 Why  does  Al  Gore  say  one  thing  if  the  truth  is  another?  You  provided  a  tape  of  the  episode  in  question, 
 which  you  stated  that  you  received  and  recorded  from  your  satellite  service,  DirecTV,  Inc.  The  text  of  the 
 message  in  question  appears  approximately  48  minutes,  30  seconds  into  this  tape.  We  sent  letters  of 
 inquiry  to  KTTV(  TV)  and  DirecTV,  as  well  as  copies  of  the  tape  that  you  submitted  and  copies  of  a  frame-by- 
 frame  rendering  of  your  tape,  produced  by  the  Commissions  staff.  Fox  Broadcasting,  Inc.  (  Fox), 
 licensee  of  KTTV(  TV),  and  DirecTV  have  responded  to  our  inquiry.  We  provided  you  with  copies  of  these 
 responses,  in  order  to  give  you  the  opportunity  to  comment  on  them.  However,  you  did  not  file  any 
 additional  comments. 

 The  Commissions  Public  Notice,  Concerning  the  Broadcast  of  Information  by  Means  of 
 Subliminal  Perception  Techniques,  44  FCC  2d  1016,  1017  (1974)  states: 

 We  believe  that  use  of  subliminal  perception  is  inconsistent  with  the 
 obligations  of  a  licensee,  and  therefore  we  take  this  occasion  to  make  clear 
 that  broadcasts  employing  such  techniques  are  contrary  to  the  public  interest. 
 Whether  effective  or  not,  such  broadcasts  clearly  are  intended  to  be  deceptive. 

 Foxs  response  states  that  the  text  message  in  question  was  part  of  a  commercial  announcement  sponsored 
 by  Victory  2000  California  Republican  Party.  Fox  explains  that  due  to  an  unintentional  malfunction  of 
 KTTV(  TV)  s  computerized  program  automation  system,  this  text  aired  in  isolation,  without  the  rest  of  the 
 commercial  announcement  of  which  it  was  part.  Fox  further  states  and  demonstrates  that  the  commercial 
 in  its  entirety  aired  approximately  twenty-  two  minutes  later.  We  accept  Foxs  explanation  that  this  text 
 message  was  broadcast  as  a  result  of  the  inadvertent  malfunction  of  KTTV(  TV)  s  automated  system. 
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 Moreover,  based  on  the  responses  from  Fox  and  DirecTV,  we  find  that  DirecTV  retransmitted 
 KTTV(  TV)  s  signal,  including  the  miscued  text  message,  as  it  had  been  received  from  Fox. 

 Fox  has  offered  specific  information  concerning  the  malfunction  in  its  automated  system.  In  this 
 regard,  Fox  explains  that  KTTV  uses  a  fully  automated  system  to  switch  from  one  program  source  to 
 another  during  the  course  of  its  broadcast  day.  Part  of  this  system  includes  the  Profile,  which  is  a  file 
 server  that  plays  back  nonprogram  material  contained  in  KTTV(  TV)  s  program  breaks,  including 
 commercials,  public  service  announcements,  newsbreaks,  etc.  According  to  Fox,  the  Profile  is  part  of  the 
 automated  system,  and  cannot  be  manually  controlled. 

 Fox  also  explains  that  after  a  program  break,  the  Profile  cues  up  nonprogram  material  for  the  next 
 break  instantly.  Fox  asserts  that  on  rare  occasions,  the  Profile  has  not  cued  precisely,  which  results  in 
 the  cueing  of  a  few  frames  of  material  that  is  scheduled  to  air  in  the  next  break.  Fox  asserts  that  on  most 
 televisions,  this  miscued  material  is  generally  invisible,  but  that  it  may  be  observed  in  a  frame-  by-  frame 
 analysis,  and  may  be  more  readily  noticeable  when  a  record  and  replay  apparatus,  such  a  TiVo  system,  is 
 used. 

 Thus,  Fox  states  that  on  November  5,  2000,  at  approximately  9:  48  p.  m.,  during  the  final  break  in 
 The  X-  Files,  the  Profile  miscued,  such  that  at  the  end  of  a  local  newsbreak,  a  flash  frame  aired  for 
 approximately  1/  10  th  of  a  second,  consisting  of  the  beginning  of  a  political  commercial  that  was  scheduled 
 to  air  at  the  beginning  of  the  next  break.  Then  the  automated  system  switched  to  the  network  feed  of  The 
 X-  Files.  The  political  commercial,  of  which  this  flash  frame  was  part,  aired  in  its  entirety  during  the  next 
 break.  In  support  of  this  explanation,  Fox  provides  information  from  its  program  log,  as  well  as  a 
 videotape  containing  KTTV(  TV)  s  programming  as  it  aired  in  real  time  during  the  time  period  in  question, 
 as  well  as  a  frame-  by-  frame  rendering  of  the  miscue  that  resulted  in  the  airing  of  the  flash  frame.  In 
 addition,  Fox  states  that  KTTV(  TV)  s  technicians  have  adjusted  their  software  in  order  to  minimize  the 
 occurrence  of  programming  miscues. 

 Fox  also  states  that  DirecTV  obtains  KTTV(  TV)  s  signal  as  it  is  output  by  the  master  control,  as 
 automated  in  the  manner  described  above.  Fox  assumes  that  the  DirecTV  transmission  recorded  by  the 
 complainants  TiVo  system  contained  the  isolated  text  message  in  the  flash  frame  that  resulted  when 
 KTTV(  TV)  s  automated  system  miscued.  DirecTVs  response  confirms  Foxs  assumption.  DirecTV 
 states  that  it  carries  the  KTTV(  TV)  feed  as  part  of  its  local  market  television  offering  in  Los  Angeles,  and 
 transmits  the  signal  as  it  is  sent  from  the  local  television  station,  with  no  modification  other  than  for 
 adjustments  to  proper  audio  and  video  levels  and  color  representation.  DirecTV  states  that  it  does  not 
 make  any  additions  or  deletions  to  the  content  of  the  signal  sent  from  the  television  station.  You  did  not 
 comment  on  the  information  submitted  by  Fox  and  DirecTV,  and  have  not  submitted  any 
 additional  information  that  would  contradict  Foxs  explanation  for  the  appearance  of  the  miscued  text 
 message. 

 Based  upon  the  information  submitted,  including  Foxs  videotape  of  KTTV(  TV)  s  programming  during  the 
 time  period  in  question  on  November  5,  2000,  we  are  satisfied  that  KTTV(  TV),  DirecTV,  and  the 
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 officers,  directors,  and  employees  of  Fox  and  DirecTV  were  unaware  of  the  miscued  text  message  prior  to 
 airing.  Under  these  circumstances,  we  conclude  that  no  further  action  is  warranted. 

 Sincerely, 

 David  H.  Solomon 
 Chief,  Enforcement  Bureau 

 cc:  Molly  Pauker,  Esq. 
 Vice  President,  Corporate  &  Legal  Affairs 
 Fox  Television  Stations,  Inc. 
 Licensee,  KTTV(  TV),  Los  Angeles,  CA 

 David  A.  Baylor 
 Executive  Vice  President 
 DirecTV 

 Merrill  S.  Spiegel,  Esq. 
 DirecTV 
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