Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
Here are some of the regulatory developments of significance to broadcasters from the past two weeks, with links to where you can go to find more information as to how these actions may affect your operations.
We kicked off our summary of last week’s regulatory actions for broadcasters with the news of several millions of dollars in fines imposed on over 100 television stations for apparent “program-length commercials” in children’s programming. Last week’s Notice of Apparent Liability, a unanimous decision by all four FCC Commissioners, stemmed from a Hot Wheels Super Ultimate Garage ad that was aired a total of 11 times during a Team Hot Wheels TV program which ran 8 times during November and December of 2018. The same programming was provided by Sinclair Broadcast Group to both commonly owned stations and stations owned by other companies. Two years ago, the same program was the subject of a $20,000 fine on a station in Baltimore, apparently when the issue was first discovered and reported to the FCC (see our article about that fine here). Given the number of stations on which the proposed fines were imposed last week, and the number of issues discussed in the Notice, we thought that we should give the Notice a more extensive look.
First, it is worth discussing the FCC’s concerns with what they term “program-length commercials.” The Commission has, for almost 30 years, had a policy against “program-length commercials” – programs that feature characters who are also featured in a commercial that runs during the program. The FCC has been concerned that children may not perceive the difference between a program and a commercial that runs in that program if both feature the same characters. The entire program can be perceived as a commercial for the product. If the whole program is perceived as promoting the product, then the program would exceed the commercial limits in children’s programming as set by Congress and incorporated in Section 73.670 of the rules – 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays.
Continue Reading A Closer Look at Multi-Million Dollar Proposed Fines for Program-Length Commercials in Children’s Television
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
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Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
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The FCC’s Video Division yesterday issued a Notice of Apparent Liability to a Baltimore TV station for airing a commercial for a Hot Wheels product in eight showings of the program “Team Hot Wheels.” The Commission has, for almost 30 years, had a policy against what they term “program-length commercials” – programs that feature characters who are also featured in a commercial that runs during the program. The FCC has been concerned that children may not perceive the difference between a program and a commercial that runs in that program if both feature the same characters. If the whole program is perceived as promoting the product, then the program would exceed the commercial limits in children’s programming set by Congress and incorporated in Section 73.670 of the rules – 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays.
A decade ago, this was a significant issue. On one day in 2010, the FCC issued seven Notices of Apparent Liability, seeking fines of as much as $70,000 for these violations (see our article here). Even before that, we noted how stations can inadvertently find themselves in these situations when featured characters unexpectedly pop up in commercials for products other than those that are directly for products featuring those characters. So, where a cartoon character appears on an ad for a video game, that can make the entire program a commercial – even though the broadcaster may not have realized until after the fact that the character would be featured in the video game commercial. In this week’s case, the facts are a little different, but still emphasize the care that TV broadcasters need to exert to ensure that nothing is aired that could make a program into a program-length commercial.
Continue Reading FCC Proposes $20,000 Fine for TV Station Program-Length Commercial in Children’s Programming
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.Continue Reading FCC Increasing Fines for Violations of Children’s Programming Rules – Fines As High as $70,000 Per Station Issued
On Friday, the FCC showed released two decisions – both dealing with a handful of inadvertent violations of the Commission’s rules on advertising directed to children. In one case, a licensee admitted in its license renewal application 4 violations of the rules and was fined $8,000. In another, the licensee admitted 8 violations, received no fine at all, instead being only admonished for its errors. Why the difference?
The FCC justified the difference in treatment based on the nature of the violations. In reality, the station that did not receive any fine actually broadcast more commercial material in excess of the limits on the amount of advertising permitted in children’s program than did the station that was fined. The reason – “program length commercials.” These are instances where, in a commercial message, a character from the surrounding program appears. In that situation, the FCC considers the entire program as a commercial, and thus the violation is considered much more serious than a mere overage in the time limits on commercial material in children’s programs. The station that received the fine had 3 program length commercials, while the station that was not fined simply ran more commercial matter than permitted by the rules – and did not have any program length commercials. But are these distinctions really justified?Continue Reading Plan Your Inadvertent Errors Carefully – A Fine for Children’s Television Violations May be at Stake
