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KLGT Licensee, LLC

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Released: December 31, 1969

Federal Communications Commission

DA 09-88

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

KLGT Licensee, LLC
)
Facility I.D. No. 36395
Licensee of Station WUCW(TV)1
)
NAL/Acct. No. 0941420010
Minneapolis, Minnesota
)
FRN: 0003865078

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


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).

Federal Communications Commission


DA 09-88

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


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
(continued....)
2

Federal Communications Commission


DA 09-88

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


(...continued from previous page)
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, 101st Cong., 1st Sess. 24 (1989).
10 Children's Television Programming, 6 FCC Rcd at 2118.
11 Children's Television Programming, 6 FCC Rcd at 2117-18.
3

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DA 09-88

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


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); see 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, 97th 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.
4

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DA 09-88

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 12th 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


22 See 47 C.F.R. 1.1914.
5

Federal Communications Commission


DA 09-88

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
6

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