January 10, 2014 Quarterly Television Deadlines: Issue-Responsive Programming Lists, Children’s Television Programming Reports, and Children’s Advertising Documentation

This memo highlights the January 10, 2014 quarterly deadlines applicable to all full power and Class A TV Stations.

Documents That Must Be Uploaded Into Each Station’s Online Public Inspection File By January 10, 2014:

  • Issue-Responsive Programming List for programming broadcast between October 1 and December 31, 2013 (all Commercial and Noncommercial Stations)
  • 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)

As a reminder, uploaded documents no longer need to be kept in paper form or made available for public inspection at the station.

FCC Filing Due By January 10, 2014:

  • 4th Quarter 2013 Children’s Programming Report (FCC Form 398) (Commercial 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 upload into its online public inspection file a list of the programs that provided the most significant treatment of community issues during the preceding three-month period. The listing is to include a brief narrative statement that identifies the issues that were given significant treatment and describes the programs in which the issues were treated. Each program description must include, at a minimum, the date, time and title of each program and the duration of each responsive programming segment; other information, such as identification of a guest appearing on the program, may also be included. There is no prescribed FCC form on which this information is to be presented.

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 compliance with the programming obligations in response to the filing of a petition to deny or an FCC inquiry, the station will be permitted to rely only upon listed and unlisted programming that is supported by documentation prepared “reasonably contemporaneously” with the broadcast of the subject programming; the FCC will not consider “unsupported recollection.” For this reason, 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 online 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 uploaded to the public file). 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 has placed/uploaded all required documents, including all quarterly reports, in its public inspection file on a timely basis. Since the FCC’s online public inspection file system now tracks when each document is uploaded, a failure to meet the deadline will be more apparent than previously was the case; any omission or late filing will be evident from even a cursory review of the online public file. Therefore, you should take great care to ensure your station’s timely compliance with this aspect of the quarterly public inspection file requirements.

II. Children’s Television Programming Report (Form 398) and Related Requirements (Commercial Television Stations Only)

Completion of Form 398. The FCC requires that within ten days after the end of each calendar quarter, each commercial television station must file a Children’s Television Programming Report (FCC Form 398) with Commission. The Children’s Television Programming Report documents a commercial broadcaster’s compliance with the children’s educational programming requirements during the preceding quarter and specifies what educational children’s programming will be broadcast during the subsequent quarter. Once filed electronically with the Commission, a copy of each station’s report will automatically be imported into the station’s online public file. Thus, stations will not need to upload a separate copy to their online public inspection file.

The Commission has not yet updated its Children’s Television Programming Report to reflect that all full power television stations were required to cease analog broadcasts in June 2009. Full power licensees operating in digital mode do not need to respond to Questions 2 through 6 of the Report concerning 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 report is filed. For all programming reflected in response to Question 10, we recommend that you include at the end of the program title an indication of the channel on which that programming was broadcast (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 with respect to their presentation of children’s educational programming, if they broadcast an average of three hours of such programming per week throughout the license term.

A “core” children’s educational program is: (i) a regularly scheduled weekly program that furthers the educational and information needs of children 16 years and younger; (ii) one that runs at least 30 minutes in duration; (iii) aired between the hours of 7:00 a.m. and 10:00 p.m.; (iv) one that has education as a significant purpose; (v) identified as a children’s educational and informational program to publishers of program guides and on the air; and (vi) identified in FCC Form 398 by its educational objective and the age of its target audience.

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 multicast program stream must also air 30 minutes of core educational and informational children’s programming per week for every one- to 28-hour segment of video programming broadcast per week. No more than 50% of the core programming counted toward meeting the additional programming requirement on a multicast channel can consist of program episodes that aired within the previous seven days on the station’s main program stream or on another of the station’s free multicast program streams.

Obligation to Reschedule Core Programming and Preemption Limitation.

For purposes of qualification as core programming, particularly in the case of West Coast affiliates of major networks when weekend sports events often preempt children’s programming, a question arose years ago concerning 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 the Second Report and Order released in 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 by August 1 of each year 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, under these procedures an affiliated 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.

A core children’s program preempted to cover “breaking news” does not need to be rescheduled and will still qualify as a core program for purposes of the quarterly report.

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, unless the preempted episodes were broadcast in a designated “second home,” an announcement of the rescheduling was broadcast at the time the program was originally supposed to air, and program guide publishers were informed of the rescheduling if time permitted. 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 recommend that all stations acquire sufficient additional half-hours of educational programming to satisfy the three hour processing guideline.

Public Information of Core Programming. Question 9(a) of Form 398 requires a licensee to confirm that its station identified each core program to publishers of the television program guides listed 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 symbol “E/I.” The “E/I” symbol must be displayed throughout the program (but not during advertising or underwriting) 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 the station’s website). If your station has not promoted the existence and location of its Children’s Television Programming Reports since uploading the reports to the FCC’s online public file, we suggest that you contact our office.

In response to inquiries, the FCC staff has informally approved broadcasting these types of announcements on the same timetable as renewal application announcements are made – once a day, two times a month, on the 1st and 16th of the month. We recommend that announcements also be rotated among dayparts, 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 should include the address of the FCC’s online public file during such on-air announcements. The following is an acceptable bare-bones on-air announcement: “Station [Call Letters]-TV maintains quarterly reports regarding its children’s educational and informational programming in the station’s online public file available at www.fcc.gov.”

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. Identifying your children’s programming liaison in an on-air announcement is optional.

III. Records Verifying Compliance With Children’s Advertising Limits (Commercial Television Stations Only)

Within ten days after the end of each calendar quarter, commercial television stations must also upload to their online public inspection files documentation verifying that they complied (or did not comply) with the children’s television advertising limits during the previous quarter. 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. This obligation also applies to multicast channels. As a consequence, your station may need to obtain information from their multicast stream program providers and supplement their records with information about any commercial material that has been locally inserted.

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 – uploading 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. This document 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 responsible station official should review and approve these lists in writing on a routine basis. Contact us if you need a sample grid form appropriate for listing commercial time in this manner.

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: (i) explain how the station utilizes information received from the network and/or syndicators to determine what may be added locally; (ii) 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; (iii) identify what safeguards are in place to assure that master control operators and other personnel do not alter the pre-log; and (iv) describe the traffic manager’s procedures for checking compliance and ascertaining discrepancies. When completed, the traffic manager or other responsible employee should sign the statement to certify in writing that it is accurate and complete. 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 the FCC to assess 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 offered 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 the insertion of 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. Such supporting records (for example, documents identifying ascertainment methodology and results, and for children’s programming, documents describing the educational nature of the programming selected) relating to children’s or issue-responsive programming, although not required to be either maintained or submitted to the FCC, could be useful in the event that questions are raised about the adequacy of the station’s programming performance. As a consequence, we strongly urge licensees to consider maintaining records of this nature. If maintained, these records need not be uploaded to the station’s public file.

We recommend that you send us your quarterly Children’s Television Programming Report, commercial limits compliance certification or other appropriate documentation, and issue-responsive programming list for review and analysis, since each of these documents plays a critical part in the license renewal process. In the Commission’s experience, non-compliance with the commercial limits still occurs at a significant number of stations, and, when identified, substantial monetary fines are assessed. Finally, as the issue-responsive programming lists can now be readily compared through access to the online public files of other stations, it is likely that the nature and amount of the programming reflected could become even more central to whether a station has done “enough” to merit renewal of its license. Therefore, it is of critical importance that every station complies with each of these requirements in a proper and timely manner.

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 what specific information is to be uploaded to the online public inspection file or how often such documentation must be placed in the file to meet these qualifying obligations. We recommended that your station retain either program logs demonstrating satisfaction of these 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 recordkeeping and related obligations.

Categories: Broadcast and Media

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