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July 2010 Deadlines: Responsive Programming Lists and |
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REMINDER:
For Full Power and Class A Television Stations Documents To Be In Public Inspection File By July 10,
2010:
FCC Filings Due By July 12, 2010:*
Documents To Be In Public Inspection File By July 12,
2010:*
* As July 10, 2010 is a
Saturday, all FCC filing deadlines are extended until the next business day,
Monday July 12th. I. Children’s Television Programming
Report (Form 398) and Related Requirements (Commercial Television Station’s
Only). Form 398, the
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 July 12, 2010, each commercial television station must have filed its
Children’s Television Programming Report for the 2nd Quarter of
2010 with the FCC. 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 analog
broadcasts no later than June 12, 2009. As a result, full power
licensees should not respond to Questions 2 through 6 of the Report (relating
to analog 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 reported 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 guides 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 multicast 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 earn 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 weekly 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 objective 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 primary 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 previous 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.” In 1997 and 1998
letter rulings, the FCC permitted ABC, CBS and NBC affiliates to count
children’s programs that were preempted by sports events toward the
three-hour guideline if certain rescheduling practices were observed.
In its Second Report and Order released in late September 2006, the
FCC adopted a policy consistent with its former procedures. 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 program guide publishers. In addition, all
stations may preempt a core children’s program to cover “breaking news”
without having to reschedule the preempted 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 sufficient additional half-hours of
educational programming to be sure of meeting the three-hour processing
guideline. “Core”
Programming Public Information Initiatives. 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 reported in response to Question 9(b). E/I Symbol
Requirement in Effect. All commercial and 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
not 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, which 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 broadcasting such
announcements on the same timetable as renewal application announcements 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 parts,
with half being aired from 6 p.m. to 11 p.m. (5 p.m. to
10 p.m. Central and 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 above. You may wish to
include the FCC or other online location of your electronically filed Reports
in the on-air announcements. Identifying 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
maintains quarterly reports on its children’s educational and informational
programming at our studios at [street address], [city],
[state].” Children’s
Programming Liaison. Note that at Question 16, Form 398 requires you to
identify your “children’s programming liaison.” This person must be
based at the station (not at a distant headquarters office), and must
be the individual actually responsible for carrying out the licensee’s
Children’s Television 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 2nd
Quarter of 2010 must be placed in your public inspection file by July 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 July 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 second quarter of
2010. This documentation must identify the programs that were
subject to the limits, and must reflect all 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 there were no
violations of the limits during the calendar quarter just ended is not
adequate. The first method – placing all programming logs or
tapes in the public inspection file – is probably impractical for most
licensees, because of the sheer bulk of such records. A second
acceptable means of documentation is listing the number of commercial minutes
per hour aired during each episode of every children’s program broadcast
during the quarter, a method that will probably add at most a few pieces of
paper per quarter to your public file. A responsible station 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, time, 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 characters or products appeared in spots
aired within or adjacent to the related program (“program-length children’s
commercials”) must be identified 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, including 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 utilized 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 operators 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 responsible employee should certify
the statement in writing as accurate. Contact 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 your 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 renewal applications, in order
to help improve the compliance rate. The reasons include human error;
inadvertence; scheduling changes or errors; mechanical 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 each calendar quarter, each commercial
and noncommercial television station 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 July 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 date, 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 inquiry, it will be permitted to rely only upon listed and unlisted
programming that 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 its 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 the FCC’s public
inspection file rule. Significantly, under the FCC’s forfeiture
schedule, the base penalty for failure to comply with this rule is a $10,000
forfeiture (which may be adjusted up or down). 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 inspection file on a timely
basis. A licensee cannot truthfully make this certification if the
station did not prepare an issue-responsive programming 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 Relating 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 significant” 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
maintained, 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 children’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 with each of these
requirements in a proper and timely manner. Many licensees
have received substantial FCC fines for failing to place 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. Others have been admonished or
fined for exceeding the hourly children’s commercial limits, failing to
broadcast announcements 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
compliance in each of these areas at the earliest possible moment. Please do not
hesitate to call us with any questions about these ongoing record-keeping and
related obligations. June 29, 2010 |
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This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advice. We would be pleased to provide additional details or advice about specific situations if desired. Copyright © 2010, Lerman Senter PLLC 2000 K Street NW,
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