January 2012 Television
Deadlines:
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REMINDER: For Full Power and Class A
Television Stations FCC Filings
Due by January 10, 2012: ·
4th Quarter 2011 Children’s Programming Report
(FCC Form 398) (Commercial Stations Only) Documents to
Be in Public Inspection File by January 10, 2012: ·
Community Issue-Responsive Programming List
for programming broadcast between October 1 – December 31, 2011 ·
4th Quarter 2011 Children’s Programming Report
(FCC Form 398) (Commercial Stations Only) ·
Documentation of Compliance with Children’s
Advertising Limits (Commercial Stations Only) ·
Documentation That the Station Continues to
Meet Class A Eligibility Requirements (Class A TV Stations Only) 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. 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. 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 that 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). 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 a
commercial broadcaster’s compliance with the children’s educational
programming requirements during the preceding quarter, and to specify what
educational children’s programming will be broadcast during the subsequent
quarter. Not later than January 10, 2012, each commercial
television station must have filed its Children’s Television Programming
Report for the Fourth 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 in
June 2009. As a result, full power licensees should not respond to
Questions 2 through 6 of the Report, which relate to the broadcast of
analog programming. 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 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 educational objective and target audience age of
which 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 when
weekend sports events often preempt 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 of the rescheduled program date
and time. 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)
of Form 398 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. 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 Fourth Quarter of 2011 must be placed in your
public inspection file by January 10, 2012. 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
January 10, 2012, 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 4th 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 strongly recommend that you review your compliance
in each of these areas at the earliest possible time. V.
Documentation of Continued
Class A Eligibility. Class A
television stations must maintain documentation in their public inspection
files demonstrating that they continue to meet the Class A eligibility
requirements to both: (i) broadcast a
minimum of 18 hours per day; and (ii) broadcast an average of at
least three hours per week of locally produced programming each
quarter. The FCC’s rules do not indicate the specific information that
is to be placed in the public inspection file or how often such documentation
must be placed in the file. It is recommended that stations retain
either program logs demonstrating that they fulfill the requirements or a
certification by station management with actual knowledge of the station’s
operation detailing how the station fulfills the Class A eligibility
requirements on a quarterly basis. Please do not
hesitate to call us with any questions about these ongoing record-keeping and
related obligations. December 22, 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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