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WXOW-WQOW Television, Inc.

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Released: July 21, 2014
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Federal Communications Commission

Washington, D.C. 20554

July 21, 2014

DA 14-1024

Released: July 21, 2014

WXOW-WQOW Television, Inc.

P.O. Box 909

Quincy, IL 62306

Re:

WXOW(TV)

La Crosse, WI

Facility ID No. 64549

FRN: 0005012216

Dear Licensee:

This letter refers to your license renewal application for WXOW(TV), La Crosse, Wisconsin (the

“Station”)1 and hereby admonishes the Station for its failure to comply with the limits on commercial

matter in children’s programming.

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.2

The commercial limitations became effective on January 1,

1992.3

On August 1, 2013, you filed the above-referenced license renewal application for the Station. In

response to Section IV, Question 5 of that application, you attached an exhibit which admitted to potential

violations of our children’s commercial time limits.4

The exhibit included a memorandum from the CW

Network to affiliates which reported that, on December 23, 2006, the Station aired a commercial (for Post

Cereal’s Cocoa Pebbles) during the “Xiaolin Showdown” program that contained glimpses of characters

from the program on the screen. The appearance is described as “small, fleeting, and confined to a small

1 File No. BRCDT-20130801AFH. (“WXOW Renewal”)

2 Children’s Television Programming, MM Docket Nos. 90-570 and 83-670, Report and Order, 6 FCC Rcd 2111,

2118, ¶ 44 recon. granted in part, 6 FCC Rcd 5093, 5098, ¶ 28 (1991).

3 Children’s Television Programming, MM Docket Nos. 90-570 and 83-670, Order, 6 FCC Rcd 5529 (1991).

4 WXOW Renewal, Exhibit 22.

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area of the picture.” The memorandum stated that the CW Network’s technology used to review

children’s commercials prior to air proved inadequate. The memorandum describes this commercial as

“an apparent violation of the FCC’s children’s advertising rules.”

Based on the memorandum provided by the network describing the commercial, it appears that

this incident is an example of “host-selling.” Host-selling involves program-related characters promoting

any product during the program in question and is a practice that the Commission has denounced because

it takes unfair advantage of the trust that children place in such characters.5

In this regard, the

Commission has stated that “host-selling encompasses any character endorsement - not just direct vocal

appeals - that has the effect of confusing a child viewer from distinguishing between program and non-

program material.”6

For example, the Commission has determined that “advertisements featuring the

same type of animation that is regularly featured in the accompanying program constitutes host-selling.”7

Based on the information before us, we believe the commercial broadcast on December 23, 2006, violated

the Commission's host-selling policy.

You argue that the images did not appear during the commercial portion of the spot but during a

portion of the material promoting a contest, relying on WDBD License Corp.

as support for the

proposition that this did not represent a violation of the commercial limits requirements.8

We disagree,

and agree with the network’s memorandum and other CW Network affiliates that this commercial

violated the commercial limits requirements.9

We do not believe that there is a clear distinction between

the commercial and promotional portions of the spot. Moreover, unlike in WDBD License Corp., the

images of characters here did not merely identify the product prize in a free contest.

The fact that the commercial was inserted into the program by the Station’s television network

does not relieve the Licensee 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.10

Furthermore, while corrective actions may have been taken to prevent future violations, this does not

relieve the Licensee of the violations which have occurred.11

Although 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 a violation 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 this violation of the

children’s television commercial limits rule and policies described in the Station’s renewal application.

5 WVTV Licensee, Inc., Forfeiture Order, 25 FCC Rcd 3741, 3743 (Vid. Div. 2010).

6 WHYY, Inc., Admonishment Letter, 7 FCC Rcd 7123 (MMB 1992).

7 Id. at ¶ 2 (citing KCOP Television, Inc., Admonishment Letter (MMB rel. May 15, 1989)).

8 WXOW Renewal, Exhibit 22 at p. 2 (citing WDBD License Corp., Notice of Apparent Liability for Forfeiture, 15

FCC Rcd. 1151, 1155 (2000)).

9 See e.g., Atlanta Television Station WUPA, Inc., Admonishment Letter, 28 FCC Rcd 7233 (Vid. Div. 2013).

10 See, e.g., WTXX, Inc., Admonishment Letter, 22 FCC Rcd 11968 (Vid. Div. 2007); Max Television of Syracuse,

L.P., Notice of Apparent Liability for Forfeiture, 10 FCC Rcd 8905 (MMB 1995).

11 See International Broadcasting Corp., Memorandum Opinion and Order, 19 FCC 2d 793, 794 (1969) (permitting

mitigation as an excuse based upon corrective action following a violation would “tend to encourage remedial rather

than preventive action.”).

2

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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.

Sincerely,

Barbara A. Kreisman

Chief, Video Division

Media Bureau

cc:

Stephen Hartzell

Brooks, Pierce, et al.

P.O. Box 1800

Raleigh, North Carolina 27602

3

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