On Friday, the FCC released seven Notices of Apparent Liability for violations of children’s programming rules, proposing forfeitures (i.e. fines) of $25,000 to $70,000 per station. Most of the violations cited were overages of the commercial limits, which restrict stations to broadcasting 10.5 minutes per hour of commercial material during childrens programming on weekends and 12 minutes per hour on weekdays. Many of these overages were for durations of 15 seconds each. In one case, the FCC found a Pokemon program to be a program length commercial (discussed below) where a Pokemon game card with the letters "MON" was displayed for one second in a Nintendo GameBoy commercial during the show. In addition to overages of the commercial limits, other cited violations included failing to provide program guide publishers with information regarding the target child audience of core programs; failing to update the public file regarding compliance; and failing to publicize the existence and location of the station’s children’s television programming reports, in addition to the program length commercial issue described above.
The largest fine, for $70,000, was issued in a case where most of the violations were for "program length commercials", in which a commercial for a memorabilia website shown during a "Yu-Gi-Oh" television program contained a "very brief" reference to Yu-Gi-Oh trading cards. A program length commercial occurs when an advertisement contains a mention of a character or product that is associated with the program in which the ad appears. In these situations, the Commission fears that children will not be able to perceive the difference between the programming and the commercial, and thus treats the entire program as a commercial. In so doing, the station is considered to have exceeded the commercial limits by the entire length of the program less the number of commercial minutes allowed. This is done even if the commercial image of the character or other program-related material is fleeting. We’ve written about the difference in treatment between a commercial overage and program length commercial before, and this case makes clear just how seriously the Commission considers the latter and how costly this can be to the offending station.
A number of lessons can be drawn from this latest group of FCC decisions: First, human error is no excuse for violating the children’s programming rules. All of these violations were deemed "willful," meaning a conscious act, "irrespective of any intent to violate the law." Second, it is no excuse that the violation originates at the network level. Individual stations remain responsible for programming aired on their stations. Third, an otherwise de minimus violation becomes significant if repeated on multiple occasions. And in the case of program length commercials, there does not appear to be any de minimus exception. Fourth, the FCC is admittedly bumping up forfeitures levied in previous renewal cycles, stating that previously issued forfeitures of lower amounts "have not had a sufficient deterrent effect."
While the FCC has always taken violations of children’s programming rules very seriously, the Commission has now taken the additional step of increasing forfeitures above the base forfeiture amounts set forth in the Forfeiture Policy Statement as a means of deterring future violations. Since human error is no shield from a forfeiture, TV stations and cable programmers must increase their vigilance against violations of all aspects of the children’s programming rules.