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'Fleeting' Defense Of Kids Ad Doesn't Get Tribune Off FCC's Hook

The FCC Friday proposed fining two Tribune stations a total of $23,000, one fine for violating commercial limits in kids advertising and the other for failing to maintain proper public files.

KMYQ Seattle faced the biggest fine, $15,000, for two overages of 30 and 60 seconds, plus four program-length commercials, with the station unsuccessfully trying to use the “fleeting” defense more familiar on the indecency and profanity regulation front.. 

The FCC takes a particularly dim view of program-length commercials pointing out that kids have a tough time separating programming from advertising. The commission treats as a program-length commercial any show featuring an ad with a character from that show in it. In this case, it was the now-famous Nintendo Gameboy E-Reader ad in the Pokemon program on the now-defunct WB.

In that ad, there is a fleeting, partially obscured, Pokemon game card, but that has been enough for the FCC to propose fining a bunch of stations that aired the show, which was a national ad buy on The WB.

KMYQ put up several arguments for why it should not be fined over the fleeting Pokemon, including that the WB had said it did not violate FCC rules. And, in a novel argument, it even invoked an FCC indecency decision, which invocation resulted in the unusual appearance of a four-letter word in an FCC notice of apparent liability for kids TV violations.

The licensee, said the FCC, “cited the Commission’s conclusion in Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, 21 FCC Rcd 2664 (2006) (“Omnibus Order”), that a broadcast of The Amazing Race 6 did not violate indecency restrictions. Specifically, in the Omnibus Order, the Commission considered whether a momentary showing of the phrase “Fuck Cops!” written on the side of a train during an episode of “The Amazing Race 6” was indecent. The Commission found that the program was not indecent under the three principal factors that comprised the Commission’s contextual analysis of this incident.”

While the FCC’s fleeting profanities policy may have been smacked down by a federal court, fleeting ad placements are apparently still off limits. The FCC said the indecency precedent was not on point since “it did not deal with the commingling of program content and commercial matter in children’s programming.”

WXIN Indianapolis faces an $8,000 fine. It was cited for not filing all of its irequired ssues/programs list in its public files--it said some records were lost in a move to a new facility. 

Stations are required to address issues of public importance and document those efforts where the public can find them. It was also cited for airing a program-length commercial because it had run a commercial for a Kirby Nintendo video game in the Kirby children’s program, which the station attributed to a scheduling error.

Both stations volunteered the violations in their applications for license renewal.