April 2011 Television
Deadlines:
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REMINDER: For Full Power
and Class A Television Stations Documents To Be In Public Inspection File By April 10,
2011:
FCC Filings Due By Monday, April 11, 2011:*
Documents To Be In Public Inspection File By Monday,
April 11, 2011:*
*As April 10, 2011 is a Sunday, all FCC filing deadlines are extended until
the next business day, Monday, April 11, 2011. I. Community
Issue-Responsive Programming Lists (All Television Stations). 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 April 10, 2011. 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. II. Children’s
Television Programming Report (Form 398) and Related Requirements (Commercial
Television Stations 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 April 11, 2011, each commercial television station must have filed its
Children’s Television Programming Report for the 1st Quarter of 2011 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 1st
Quarter of 2011 must be placed in your public inspection file by April 11,
2011. 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. III.
Records Verifying Compliance With Children’s Advertising Limits (Commercial
Television Stations Only). By April 10,
2011, 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 2011. 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. IV.
Recommendations Relating to Both Children’s and Issue-Responsive
Programming Record. 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. March 17, 2011 |
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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 © 2011, Lerman Senter PLLC 2000 K Street NW,
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