July 2011 Television
Deadlines:
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REMINDER: For Full Power
and Class A Television Stations Documents To Be In Public Inspection File By July 10,
2011:
FCC Filings Due By Monday, July 11, 2011:*
Documents To Be In Public Inspection File By Monday, July
11, 2011:*
*As July 10, 2011 is a Sunday, all FCC filing deadlines are extended until
the next business day, Monday, July 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 July 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 July 11, 2011, each commercial
television station must have filed its Children’s Television Programming
Report for the 2nd 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 2nd
Quarter of 2011 must be placed in your public inspection file by July 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 July 11, 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 2nd 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. June 8, 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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