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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 IN REPLY REFER TO: 1800C1-SD 94120063 February 10, 1997 Released: February 12, 1997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED KCOP Television, Inc. Licensee, KCOP-TV 915 N. La Brea Avenue Hollywood, CA 90048 Dear Licensee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR A FORFEITURE ("NAL") in the amount of fifteen thousand dollars ($15,000) pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. 503(b), under authority delegated to the Chief of the Mass Media Bureau by Section 0.283 of the Commission's Rules, 47 C.F.R. 0.283. This proceeding concerns apparently repeated violations of the Commission's rule limiting the amount of commercial matter that may be aired during 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 amount 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 of commercial time per hour on weekends and 12 minutes of commercial time per hour on weekdays. The Commission also stated that the entire duration of a program associated with a product, in which commercials for that product are aired (a "program-length commercial") would be counted as commercial matter for the purpose of the children's television commercial limits. Finally, the Commission reaffirmed its long-standing policy against "host-selling" ("the use of program talent to deliver commercials," including "endorsements or selling by animated cartoon characters as well as 'live' program hosts"). Children's Television Programming, 6 FCC Rcd 2111, 2118, 2127 n.147, recon. granted in part, 6 FCC Rcd 5093, 5098 (1991). The commercial limitations became effective on January 1, 1992. Children's Television Programming, 6 FCC Rcd 5529, 5530 (1991). Congress is particularly concerned about program-length commercials because young children often have difficulty distinguishing between commercials and programs. S. Rep. No. 227, 101st Cong., 1st Sess. 24 (1989). Similarly, the effect of host-selling "is to interweave the program and the commercial, exacerbating the difficulty children have distinguishing between the two." Action for Children's Television, 50 FCC 2d 1, 16 (1974). On October 25, 1994, the Mass Media Bureau's Enforcement Division sent you a letter of inquiry regarding a complaint which alleged possible policy and rule violations during your March 1994, airing of the children's program "Sonic the Hedgehog." The letter directed your attention to two situations involving both the Commission's program-length commercial rule and its host-selling policy. The first involved an advertisement for "Honey Nut Cheerios" which featured the Sega Genesis game "Sonic the Hedgehog" and Sega Genesis products in general during the "Sonic the Hedgehog" program. The second involved the apparent promotion of the Sonic the Hedgehog character in a "Honey Nut Cheerios" cereal commercial in which the character of Sonic the Hedgehog appeared throughout the spot, which aired during the "Sonic the Hedgehog" program. You responded to the Commission by letter dated December 1, 1994. Honey Nut Cheerios: Promotion of Sega Genesis Products The Honey Nut Cheerios commercial heavily promoted the Sonic the Hedgehog videogame and Sega Genesis products in general. In the Honey Nut Cheerios commercial, the HoneyBee of "Honey Nut Cheerios" is playing the Sonic the Hedgehog Sega videogame. The Sega Genesis game system and Sega Genesis games are also advertised at the end of the commercial. Thus, the Honey Nut Cheerios commercial centers around Sega Genesis' Sonic the Hedgehog videogame, while the entire Sega Genesis system is promoted at the end of the advertisement. You state in your response letter dated December 1, 1994, that the station broadcast the Honey Nut Cheerios commercial featuring the Sega Genesis games nine times from March 14 to April 4, 1994. You argue that although the Honey Nut Cheerios commercial aired during the Sonic the Hedgehog program, the product being advertised was Honey Nut Cheerios cereal and not Sega Genesis games. Therefore, you assert, the Sonic the Hedgehog program does not come within the Commission's definition of the program-length commercial. You further state that the commercial was broadcast due to "inadvertent human error" and despite instructions it not be aired. Finally, you state that you have initiated a new procedure for ensuring that the appropriate personnel are alerted to any commercial restrictions in the future. The Commission has repeatedly held that, where a commercial announcement is primarily for a product otherwise unrelated to a program (e.g. a breakfast cereal), but that announcement also includes references to or offers of products which are related to the program, the broadcast of that commercial announcement during the program to which the included products relate will render that program a program-length commercial. The Sonic the Hedgehog game and Sega Genesis products are clearly related to the Sonic the Hedgehog program in which the advertisement was aired. Accordingly, these Honey Nut Cheerios advertisements featuring the Sega Genesis/Sonic the Hedgehog products turn the subject 30-minute "Sonic the Hedgehog" programs into program-length commercials, causing KCOP-TV to have exceeded the limits on commercial matter in children's programming on those nine occasions. Therefore, pursuant to 47 U.S.C. 503(b), you are hereby advised of your apparent liability for a forfeiture in the amount of fifteen thousand dollars ($15,000) for your apparent repeated violations of 47 C.F.R. 73.670, by airing the program-length commercials described above on nine occasions, beginning March 14, 1994, and ending April 4, 1994. The amount specified was reached after consideration of the factors set forth in Section 503(b)(2) of the Communications Act, including "the nature, circumstances, extent, gravity of the violation, and any history of prior offenses." 47 U.S.C.503(b)(2)(D). In particular, we have considered the number of instances of commercial overages, the nature of the overages, the period of time over which such overages occurred, the reasons the overages occurred, and KCOP-TV's history of prior offenses. In this instance, we have a relatively large number of violations caused by the licensee's apparent inability to keep station personnel informed of the commercial instructions to be entered into the program log. The only reason for the cited violations proffered by KCOP-TV, human error, does not justify or excuse such violations. The Commission has consistently and repeatedly rejected human error, inadvertence and/or misunderstanding as a basis for excusing violations of the children's television commercial limits. Your implementation of a plan designed to prevent future violations of the Commission's children's television commercial limitations does not relieve you of liability for violations which have occurred. With respect to your "history of prior offenses," the Commission, in 1989, drafted a cautionary letter for KCOP-TV's violation of the host-selling policy. See Letter from Edythe Wise, Enforcement Division, Mass Media Bureau, (May 15, 1989). The Commission also admonished you for violation of the program-length commercial rule in 1994. See Letter from Barbara Kreisman, Video Services Division, Mass Media Bureau, (April 18, 1994). Overall your history of repeated violations combined with the nine addressed here, demonstrate an ongoing disregard for the Commission's children's television commercial limit rules and policies, warranting the instant forfeiture. Honey Nut Cheerios: Promotion of the Sonic the Hedgehog Character We also ADMONISH you for nine host-selling violations based on the promotion of the Sonic the Hedgehog character throughout the Honey Nut Cheerios commercial aired during the Sonic the Hedgehog program. Host-selling is a practice the Commission has denounced because it takes unfair advantage of the trust that children place in program characters. Action for Children's Television, 50 FCC 2d 1, 8, 16-17 (1974). The Commission's policy is that any appearance by a program character in an otherwise unrelated commercial constitutes host-selling. UTV of San Francisco, Inc. (KBHK-TV), 10 FCC Rcd 10986 (1995). As the Commission stated in a May 15, 1989, letter to KCOP Television, Inc., this policy would prohibit the depiction of a cartoon character, such as Sonic the Hedgehog, in a children's program to sell a product in a commercial aired in close proximity to that program. In view of all the circumstances, we believe the above-described advertisement was a violation of our host-selling policy. We therefore ADMONISH you to avoid such situations in the future. With respect to this forfeiture proceeding, you are afforded a period of thirty (30) days from the release date of this NAL "to show, in writing, why a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent." 47 C.F.R. 1.80(f)(3). Other relevant provisions of Section 1.80 of the Commission's Rules are summarized in the attachment to this letter. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau