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.

In this case, the station aired a block of programming from a children’s programming network, and that block apparently came with the commercial relating to the Hot Wheels program already inserted into that program. The problem was not discovered until after the program and related commercial had already aired several times. Even though the licensee discovered the problem and alerted the network to fix it, the FCC nevertheless found that the reliance on a program source for compliance with the Commission’s children’s television rules does not absolve the licensee for responsibility for the content of the program.

In fact, the Commission considers these program-length commercials to be more serious than a simple overage above the limits set in Section 73.670 for commercial matter in children’s programs, as the commercial featuring a character from the show makes the whole program, in the Commission’s eyes, into one big commercial, that means that the program is considered a 30-minute commercial thus far exceeding the limits imposed by the rule. Because of the FCC’s perception that these are serious matters, the fine in this case was proposed to be higher than the base fine of $8,000 that would apply to a simple overage above the commercial limits – consistent with the past cases we wrote about in the last decade.

This fine arose in the license renewal context, as TV stations must certify their compliance with the Children’s Television Rules in their renewal applications. With the TV renewal cycle now in full swing, TV stations need to carefully review their programming to make sure that none of these inadvertent violations occur, as they can lead to the big fines evident from this decision.