*Pages 1--3 from Microsoft Word - 8078.doc* DA 01- 849 Federal Communications Commission Washington, D. C. 20554 April 6, 2001 In Reply Refer to: EB- 00- IH- 0373/ MG Judith and Garfield Reeves- Stevens 8929 Hollywood Hills Road Los Angeles, CA 90046 Dear Ms. Reeves- Stevens and Mr. Reeves- Stevens: By this letter we close our investigation into an alleged violation of the Commission’s policy against the use of subliminal perception techniques in broadcasting by KTTV( TV), Los Angeles, CA and DirecTV. Your complaint alleged that KTTV( TV) may have broadcast a subliminal text message during an episode of The X- Files, which aired on KTTV( TV) between 9: 00 p. m. and 10: 00 p. m., Pacific time, on Sunday, November 5, 2000. Specifically, you stated that the allegedly subliminal message appeared between a group of commercials and the resumption of an episode of The X- Files. The message read: “Why does Al Gore say one thing if the truth is another?” You provided a tape of the episode in question, which you stated that you received and recorded from your satellite service, DirecTV, Inc. The text of the message in question appears approximately 48 minutes, 30 seconds into this tape. We sent letters of inquiry to KTTV( TV) and DirecTV, as well as copies of the tape that you submitted and copies of a frame-by- frame rendering of your tape, produced by the Commission’s staff. Fox Broadcasting, Inc. (“ Fox”), licensee of KTTV( TV), and DirecTV have responded to our inquiry. We provided you with copies of these responses, in order to give you the opportunity to comment on them. However, you did not file any additional comments. The Commission’s Public Notice, Concerning the Broadcast of Information by Means of “Subliminal Perception” Techniques, 44 FCC 2d 1016, 1017 (1974) states: We believe that use of subliminal perception is inconsistent with the obligations of a licensee, and therefore we take this occasion to make clear that broadcasts employing such techniques are contrary to the public interest. Whether effective or not, such broadcasts clearly are intended to be deceptive. Fox’s response states that the text message in question was part of a commercial announcement sponsored by Victory 2000 California Republican Party. Fox explains that due to an unintentional malfunction of KTTV( TV) ’s computerized program automation system, this text aired in isolation, without the rest of the commercial announcement of which it was part. Fox further states and demonstrates that the commercial in its entirety aired approximately twenty- two minutes later. We accept Fox’s explanation that this text message was broadcast as a result of the inadvertent malfunction of KTTV( TV) ’s automated system. 1 Federal Communications Commission DA 01- 849 2 Moreover, based on the responses from Fox and DirecTV, we find that DirecTV retransmitted KTTV( TV) ’s signal, including the miscued text message, as it had been received from Fox. Fox has offered specific information concerning the malfunction in its automated system. In this regard, Fox explains that KTTV uses a fully automated system to switch from one program source to another during the course of its broadcast day. Part of this system includes the Profile, which is a file server that plays back nonprogram material contained in KTTV( TV) ’s program breaks, including commercials, public service announcements, newsbreaks, etc. According to Fox, the Profile is part of the automated system, and cannot be manually controlled. Fox also explains that after a program break, the Profile cues up nonprogram material for the next break instantly. Fox asserts that “on rare occasions,” the Profile has not cued precisely, which results in the cueing of a few frames of material that is scheduled to air in the next break. Fox asserts that on most televisions, this miscued material is generally invisible, but that it may be observed in a frame- by- frame analysis, and may be more readily noticeable when a record and replay apparatus, such a TiVo system, is used. Thus, Fox states that on November 5, 2000, at approximately 9: 48 p. m., during the final break in The X- Files, the Profile miscued, such that at the end of a local newsbreak, a flash frame aired for approximately 1/ 10 th of a second, consisting of the beginning of a political commercial that was scheduled to air at the beginning of the next break. Then the automated system switched to the network feed of The X- Files. The political commercial, of which this flash frame was part, aired in its entirety during the next break. In support of this explanation, Fox provides information from its program log, as well as a videotape containing KTTV( TV) ’s programming as it aired in real time during the time period in question, as well as a frame- by- frame rendering of the miscue that resulted in the airing of the flash frame. In addition, Fox states that KTTV( TV) ’s technicians have adjusted their software in order to minimize the occurrence of programming miscues. Fox also states that DirecTV obtains KTTV( TV) ’s signal as it is output by the master control, as automated in the manner described above. Fox assumes that the DirecTV transmission recorded by the complainants’ TiVo system contained the isolated text message in the flash frame that resulted when KTTV( TV) ’s automated system miscued. DirecTV’s response confirms Fox’s assumption. DirecTV states that it carries the KTTV( TV) feed as part of its local market television offering in Los Angeles, and transmits the signal as it is sent from the local television station, with no modification other than for adjustments to proper audio and video levels and color representation. DirecTV states that it does not make any additions or deletions to the content of the signal sent from the television station. You did not comment on the information submitted by Fox and DirecTV, and have not submitted any additional information that would contradict Fox’s explanation for the appearance of the miscued text message. Based upon the information submitted, including Fox’s videotape of KTTV( TV) ’s programming during the time period in question on November 5, 2000, we are satisfied that KTTV( TV), DirecTV, and the 2 Federal Communications Commission DA 01- 849 3 officers, directors, and employees of Fox and DirecTV were unaware of the miscued text message prior to airing. Under these circumstances, we conclude that no further action is warranted. Sincerely, David H. Solomon Chief, Enforcement Bureau cc: Molly Pauker, Esq. Vice President, Corporate & Legal Affairs Fox Television Stations, Inc. Licensee, KTTV( TV), Los Angeles, CA David A. Baylor Executive Vice President DirecTV Merrill S. Spiegel, Esq. DirecTV 3