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REMIN=
DER: For Full Power and Class A Television Stations=
Documents To Be In Public Inspection File By April =
10,
2010:
- 1st Q=
uarter
2010 Community Issue - Responsive Programming Lists
- Documentation of
Compliance With Children’s Advertising Limits
(Commercial
Stations Only)
FCC Filings Due By April 12, 2010*:
- 1st Q=
uarter
2010 Children’s Programming Report (FCC Form 398)
(Commercial
Stations Only)
Documents To Be In Public Inspection File By April =
12,
2010*:
- 1st Q=
uarter
2010 Children’s Programming Report (FCC Form 398)
(Commercial
Stations Only)
* As April 10, 201=
0 is a
Saturday, all FCC filing deadlines are extended until the next business d=
ay,
Monday April 12th.
=
I. &=
nbsp; Children’s
Television Programming Report (Form 398) and Related Requirements
(Commercial Television Station’s Only).
Form 398, t=
he
Children’s Television Programming Report, is utilized to document
commercial broadcasters’ compliance with the children’s
educational programming requirements during the current quarter, and to
specify what educational children’s programming will be broadcast
during the subsequent quarter. By April 12, 2010, each commercial
television station must have filed its Children’s Television
Programming Report for the 1st Quarter of 2010 with the FCC. <=
br>
Completion of Form 398. The Commission has not yet
updated its Children’s Television Programming Report (Form 398) to
reflect that all full power television stations were required to cease an=
alog
broadcasts no later than June 12, 2009. As a result, full power lic=
ensees
should not respond to Questions 2 through 6 of the Report (relating to an=
alog
programming broadcast). Similarly, full power television stations
should respond “no” to Questions 7(b) and 7(c) (relating to
whether the information provided with regard to analog programming also
applies to the station’s digital programming), and will be required=
to
include an explanatory exhibit. The Children’s Television
Programming Report filing system should automatically prompt the filer for
such an exhibit when the application is filed. For all programming report=
ed
in response to Question 10, we recommend that you include an indication of
the channel on which that the programming was broadcast at the end of the
program title (e.g., Channel 35.2).
Please note that the requirement to provide to publishers of program guid=
es
information identifying each “core” program (including an
indication of the program’s target child audience) applies to core
programming broadcast on all free, over-the-air streams, including multic=
ast
streams.
=
;“Core”
Programming and the Three-Hour Processing Guideline for Broadcasters.
Broadcasters are required to broadcast “core” educational and
informational children’s programming and have the opportunity to ea=
rn
an automatic “pass” at license renewal time on their
children’s educational programming performance if they broadcast an
average of three hours of such programming per week throughout the license
term.
In brief, a “core” program is a regularly scheduled we=
ekly
program that furthers the educational and information needs of children 16
years and younger that is at least 30 minutes in duration, aired between =
the
hours of 7:00 a.m. and 10:00 p.m., has education as a significant purpose=
, is
identified as a children’s educational and informational program to
publishers of program guides and on the air, and whose educational object=
ive
and target audience age are listed in the station’s Form 398
Children’s Television Programming Report.
Broadcasters must broadcast an average of at least three hours per week of
“core” educational programming on a station’s primar=
y
free digital program stream. Any free, non-primary digital
program stream must also air 30 minutes of “core” educational=
and
informational children’s programming per week for every 1 to 28 hour
segment of video programming broadcast per week. At least 50% of the
core programming counted toward meeting the additional programming
requirement cannot consist of program episodes that aired within the prev=
ious
seven days on the station’s main program stream or another of the
station’s free digital program streams.
Obligation to Reschedule Core Programming and Preemption Limitation=
.
For purposes of the definition of core programming, a question arose some
years ago, particularly in the case of West Coast affiliates of major
networks whose weekend sports events often preempt their children’s
programming, as to how often a weekly children’s educational program
may be preempted and still qualify as “regularly scheduled.”&=
nbsp;
In 1997 and 1998 letter rulings, the FCC permitted ABC, CBS and NBC
affiliates to count children’s programs that were preempted by spor=
ts
events toward the three-hour guideline if certain rescheduling practices =
were
observed. In its Second Report and Order released in late Se=
ptember
2006, the FCC adopted a policy consistent with its former procedures.&nbs=
p;
Under these rules, each network seeking preemption flexibility must file =
with
the FCC Media Bureau annually by August 1st a request outlining
its expected number of preemptions and its plan to reschedule preempted
programs and notify the public of the schedule changes. When a
particular episode is preempted, the station must be certain to: (i)
reschedule the program to its “second home”; (ii) air an
announcement at the time the episode was originally scheduled to inform
viewers as to when the program has been rescheduled; and (iii) inform pro=
gram
guide publishers.
In addition, all stations may preempt a core children’s program to
cover “breaking news” without having to reschedule the preemp=
ted
program.
With respect to preemptions not covered by the preceding paragraphs, we
recommend that you not count a weekly program as “regularly
scheduled” if it has been preempted more than once in the quarter.
If your educational programming schedule changes mid-quarter, however, you
may still be able to count your programs as “regularly
scheduled”; in such cases, please contact our office to review the
circumstances. In any event, we suggest that all stations acquire s=
ufficient
additional half-hours of educational programming to be sure of meeting the
three-hour processing guideline.
“Core” Programming Public Information Initiatives.<=
/b>
Question 9(a) requires Licensees to certify that their station identified=
, on
the air, each program that is specifically designed to educate and inform
children, and that they identified such programs, as well as the
programs’ target age group, to publishers of television program
guides. The program guides to which this information was sent is re=
ported
in response to Question 9(b).
E/I Symbol Requirement in Effect. All commercial a=
nd
noncommercial television broadcast licensees must identify core
programming with the same symbol, “E/I.” The
“E/I” symbol must be displayed throughout the program (but no=
t during
advertising) in order for the program to qualify as core.
Publicizing the Children’s Television Programming Reports.
Question 15 of Form 398 inquires whether the licensee has made the public
aware of the existence and location of its Children’s Television
Programming Reports by means of on-air announcements, as required by the
FCC’s rules. The importance of complying with this requirement
was highlighted by a February 2010 Forfeiture Order issued by the FCC, wh=
ich
assessed an $8,000 fine against a station for failing to publicize the
location of its Children’s Television Reports on-air (although the
station had posted the Reports on its website). If your station has=
not
promoted the existence and location of its Children’s Television
Programming Reports, we suggest that you contact this office.
In response to inquiries, the FCC staff has informally approved broadcast=
ing
such announcements on the same timetable as renewal application announcem=
ents
are made -- once per day, two times a month, on the 1st and 16th of the
month. We recommend that announcements also be rotated among day pa=
rts,
with half being aired from 6 p.m. to 11 p.m. (5 p.m. to 10 p.m. Central a=
nd
Mountain time), and the other half divided equally among the 9 a.m. to 1 =
p.m.,
1 p.m. to 5 p.m., and 5 p.m. to 7 p.m. time periods.
You may, of course, broadcast these announcements more often than twice a
month, but we do not recommend airing them less frequently than once per
month. To be safe, follow the twice-per-month schedule outlined abo=
ve.
You may wish to include the FCC or other online location of your
electronically filed Reports in the on-air announcements. Identifyi=
ng
your children’s programming liaison in the announcements is also
optional. The following is an acceptable bare-bones on-air
announcement: “Station [call letters]-TV mainta=
ins
quarterly reports on its children’s educational and informational
programming at our studios at [street address], [city=
],
[state].”
Children’s Programming Liaison. Note tha=
t at
Question 16, Form 398 requires you to identify your “children’=
;s
programming liaison.” This person must be based at the sta=
tion
(not at a distant headquarters office), and must be the individual actual=
ly
responsible for carrying out the licensee’s Children’s Televi=
sion
Act responsibilities. A Program Director is an appropriate
children’s programming liaison; a receptionist is not.
Placement of Form 398 in the Public Inspection File. A
copy of the completed Form 398 for the 1st Quarter of 2010 mus=
t be
placed in your public inspection file by April 12, 2010. Keep the
signed original in your non-public files. The Children’s
Television Programming Reports must be maintained separately from other
portions of the station’s public inspection file, including the
quarterly reports of compliance with the children’s commercial
limits.
II. Records Verifying
Compliance With Children’s Advertising Limits
By April 10, 2010, commercial television stations must also place=
in
their public inspection files documentation verifying that they complied =
(or
did not comply) with the children’s television advertising
limits during the first quarter of 2010. This documentation must
identify the programs that were subject to the limits, and must reflect a=
ll
instances of non-compliance. The commercial limits – 10.5
minutes per hour on weekends, and 12 minutes per hour on weekdays –
apply pro rata to all programming of five minutes or longer
originally produced and broadcast primarily for children ages 12 and
under.
The FCC has approved several methods for documenting compliance with the
commercial limits. In all cases, a mere certification that th=
ere
were no violations of the limits during the calendar quarter just ended is
not adequate. The first method – placing all programm=
ing
logs or tapes in the public inspection file – is probably impractic=
al
for most licensees, because of the sheer bulk of such records. A se=
cond
acceptable means of documentation is listing the number of commercial min=
utes
per hour aired during each episode of every children’s program
broadcast during the quarter, a method that will probably add at most a f=
ew
pieces of paper per quarter to your public file. A responsible stat=
ion
official should review and approve these lists in writing on a routine
basis. Contact us if you need an appropriate grid form for listing
commercial time in this manner. This form must specify the date, ti=
me,
program name, and number of commercial minutes for each airing of each
children’s program segment of five minutes or longer throughout the
quarter. In addition, any instances where program-related character=
s or
products appeared in spots aired within or adjacent to the related program
(“program-length children’s commercials”) must be ident=
ified
and explained.
A final method of demonstrating compliance with the children’s
television commercial limits is through documentation certifying that, as=
to
each children’s program broadcast, the network or syndicator and=
the station, as a routine practice, format (and air) the program so as to
comply with the commercial limits. Each program that is subject to =
the
limits must be identified, and a detailed list of all overages, includ=
ing
any program-length commercials, must be supplied. If the station
receives a certification of compliance from its affiliated network and/or
from program syndicators about the formatting of children’s
programming, it must also keep documentation capable of showing that no
commercials in excess of the statutory limits were added by the station. =
We
recommend that the certification should explain how the station utilizes
information received from the network and/or syndicators to determine what
may be added locally; describe the prescreening or other procedures utili=
zed
by the station to assure that spots for program-related products are not
aired within the related programs, creating program-length commercials;
identify what safeguards are in place to assure that master control opera=
tors
and other personnel do not alter the pre-log; and describe the traffic
manager’s procedures for checking compliance and ascertaining
discrepancies. When completed, the traffic manager or other respons=
ible
employee should certify the statement in writing as accurate. Conta=
ct
us if you need assistance in preparing this statement.
Whatever method you utilize, we recommend that you retain program logs
throughout the license term to back up the documents you have placed in y=
our
public file, since commercial television licensees must maintain records
sufficient to substantiate that they have complied with the commercial
limits.
All commercial television licensees are subject to unannounced, off-air
monitoring and counting of the commercial matter contained in their
programming originally produced and broadcast for an audience of children=
12
years old and under. Audited licensees found in violation of the
commercial limits can expect substantial forfeitures.
In initiating these off-air audits, the FCC listed the causes of
over-commercialization most frequently cited by broadcasters in their ren=
ewal
applications, in order to help improve the compliance rate. The rea=
sons
include human error; inadvertence; scheduling changes or errors; mechanic=
al
errors; the broadcast of special news and weather reports; the inability =
of
the station to prescreen satellite-delivered programming; the inclusion of
commercials in programming provided by the source or producer of the
programming; misunderstanding of the FCC’s rules; and commercial
“make goods.” In most instances, these reasons for
noncompliance with the children’s commercial limits will not excuse=
or
mitigate noncompliance. Therefore, we strongly urge all
commercial television station licensees to take extra steps to ensure
compliance with the children’s television advertising limits, and to
exercise care in documenting their compliance with those limits.
III. Community Issue-Responsive
Programming Lists
Finally, the FCC requires that within ten days after the end of e=
ach
calendar quarter, each commercial and noncommercial television sta=
tion
must prepare and place in its local public inspection file a list of the
programs that provided the most significant treatment of community issues
during the preceding three-month period. NOTE: Because =
this
document is not filed with the FCC, the deadline for its placement in the
public file remains April 10, 2010. The list should include=
a
brief narrative statement that identifies the issues that were given
significant treatment and describes the programs in which the issues were
treated. The program descriptions must include, but are not
limited to, the da=
te, time and title of =
each
program, and the duration of each responsive programming segment.
Note, although the FCC adopted a requirement in 2008 that all television
stations replace their quarterly Community Issue – Responsive
Programming Lists with a Standard Television Disclosure Form – FCC =
Form
355, that requirement is still not effective. Our office will advise
you of further developments regarding FCC Form 355.
You should keep several things in mind as you compile the quarterly
issue-responsive programming lists for your station. First, =
care
should be taken to list only those programs that actually represent the
“most significant programming treatment of community
issues.” Second, the FCC has indicated that licensees =
who
document significant programming directed to five to ten community issues
during each quarter are, as a general matter, likely to be able to
demonstrate compliance with the issue-responsive programming
obligation. Third, in the event that a station is required to
demonstrate such compliance in response to a petition to deny or FCC inqu=
iry,
it will be permitted to rely only upon listed and unlisted programming th=
at
is supported by documentation prepared “reasonably
contemporaneously” with the subject programming. The FCC will=
not
consider “unsupported recollection.” Thus, as described
below, all issue-responsive programming should be documented even =
if
it is not included in the quarterly listing. Finally, each
station is required to retain the issue-responsive programming lists in i=
ts
public inspection file until the FCC’s grant of its next license
renewal application (meaning the renewal application which is due at the =
end
of the term during which the documents were placed in the file).
The maintenance of issue-responsive programming lists is required under t=
he
FCC’s public inspection file rule. Significantly, under the
FCC’s forfeiture schedule, the base penalty for failure to comply w=
ith
this rule is a $10,000 forfeiture (which may be adjusted up or down).&nbs=
p;
Additionally, when a television station licensee files its license renewal
application with the FCC, the licensee must certify that it placed all
required documents, including all quarterly reports, in its public inspec=
tion
file on a timely basis. A licensee cannot truthfully make th=
is
certification if the station did not prepare an issue-responsive programm=
ing
list for each quarter and place it in the public inspection file by the
designated deadline. Therefore, great care should be taken to ensure
your station’s compliance with this quarterly public inspection file
requirement.
IV. Recommendations Relati=
ng
to Both Children’s and Issue Responsive Programming Records
Although not required to do so, licensees may wish to maintain
records of all non-Form 398 children’s educational programming they
broadcast, as well as a separate list of all “less significant̶=
1;
issue-responsive programming aired. In the event of a renewal
challenge, or failure to meet the FCC’s three-hour educational
programming processing guideline, these records would help demonstrate the
full extent of a station’s responsiveness to the educational and
informational needs of children and to community issues. If maintai=
ned,
such records need not be kept in the licensee’s public file.
Additional supporting records (e.g., ascertainment methodology and
results, and for children’s programming, documentation of the
educational nature of the programming selected) relating to children̵=
7;s
or issue-responsive programming, although not required to be either
maintained or submitted, could be extremely useful in the event that
questions are raised about the adequacy of the station’s
performance. For this reason, we strongly urge licensees to maintain
such records.
We highly recommend that you send us your quarterly Children’s
Television Programming Report, commercial limits compliance certification=
or
other documentation, and issue-responsive programming list for review and
analysis, as each document plays a critical part in the license renewal
process. Moreover, non-compliance with the commercial limits still
occurs at a high percentage of stations, and can result in substantial
monetary fines. Finally, issue-responsive programming lists provide=
one
of the very few remaining means by which a station’s entitlement to
renewal of its license can be gauged in the event that a petition to deny=
is
filed. Therefore, it is critically important that stations comply w=
ith each
of these requirements in a proper and timely manner.
Many licensees have received substantial FCC fines for failing to pla=
ce
issue-responsive programming lists, records of compliance with the
children’s commercial limits, and/or Children’s Television
Programming Reports in their public inspection files on a timely basis.&n=
bsp;
Others have been admonished or fined for exceeding the hourly
children’s commercial limits, failing to broadcast announceme=
nts
regarding the existence and location of their Children’s Television
Programming Reports, failing to identify core programming as such on the =
air,
or failing to notify publishers of program guides of their core
children’s programs and the target age of each core program
series. We therefore strongly recommend that you review your compli=
ance
in each of these areas at the earliest possible moment.
Please do not hesitate to call us with any questions about these ongo=
ing
record-keeping and related obligations.
March 12, 2010
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