Reminder of Quarterly Television Programming Reports Due July 10, 2015

This memo highlights the July 10, 2015 quarterly deadlines applicable to all full power and Class A television stations.

Documents That Must Be Uploaded Into Each Station’s Online Public Inspection File By July 10, 2015:

  • Issue-Responsive Programming List for programming broadcast between April 1 and June 30, 2015 (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 July 10, 2015:

  • 2nd Quarter 2015 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 any guest appearing on the program may also be included. There is no FCC form on which this information must be presented.

You should keep several things in mind as you compile the quarterly issue-responsive programming lists for your station:

  • Be careful to compile information on all issue-responsive programming, but list only those programs that actually represent the “most significant programming treatment of community issues.”
  • 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.
  • If a station is required to demonstrate compliance with the programming obligations in response to a petition to deny or FCC inquiry, it will be permitted to rely only upon listed and unlisted programming which is supported by documentation prepared “reasonably contemporaneously” with the broadcast of the programming. The FCC will not consider “unsupported recollection.” Accordingly, all issue-responsive programming should be documented.
  • 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. 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).

In connection with the filing of a license renewal application, the licensee must certify that it placed/uploaded all required documents, including all quarterly programming reports, in its public inspection file on a timely basis. The FCC’s online public inspection file system tracks the precise date when each document is uploaded, so any failure to meet the deadline can be noted from even a cursory review of the online public file. It is important that your station comply 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)

The FCC requires that within ten days after the end of each calendar quarter, each commercial television station must file Form 398, the Children’s Television Programming Report, with the Commission. This 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. The Commission will automatically import a copy of each station’s report into its online public file. Stations no longer need to upload a separate copy to their online public inspection file.

Completion of Form 398. The Commission has not updated the Children’s Television Programming Report to reflect that all full power television stations were required to cease analog broadcasts in June 2009. As a result, full power licensees do not need to respond to Questions 2 through 6 of the Report, which relate to the broadcast of analog programming. 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 FCC filing system should automatically prompt the filer for such an exhibit when the Report is filed. For all programming identified 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 (for example, 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 TV Broadcasters.

All commercial licensees are required to broadcast “core” educational and informational children’s programming. A core program is defined as a regularly scheduled weekly program that:

  • furthers the educational and informational needs of children 16 years and younger;
  • runs at least 30 minutes in duration;
  • is aired between the hours of 7 a.m. and 10 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
  • identifies the educational objective and target audience age of each program listed in the station’s Form 398 Children’s Television Programming Report.

A licensee 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 1-to-28 hour segment of total video programming broadcast each 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.

If there is an average of three hours of core programming broadcast per week throughout the license term, the Commission’s rules provide that the Media Bureau shall deem the station to have met its obligations with respect to the presentation of children’s educational programming. However, the Media Bureau stated in a Consent Decree adopted in December 2014 that a station that carries less than three hours of core programming in two or more quarters during a license term cannot “make up” this deficiency by the carriage of more than three hours of such programming in other quarters during the term. If the number of hours of children’s programming broadcast each week varies significantly, we recommend that you carefully monitor the scheduling of these programs so that the weekly average of such programming meets the required three hour minimum throughout each quarter.

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 these instances, each network seeking preemption flexibility is required to 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.

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: (i) the preempted episodes were broadcast in a designated “second home;” (ii) an announcement of the rescheduling was broadcast at the time the program was originally supposed to air; and (iii) 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 suggest 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” on all such programming broadcast on the primary channel and on any multicast channel, including foreign-language programming. The “E/I” symbol must be displayed throughout the program (but not during advertising) in order for the program to qualify as core. A Notice of Apparent Liability for Forfeiture in the amount of $3,000 was issued in October 2014 to a station that did not comply with this requirement because the program distributor did not have English language graphic insertion capability.

Publicizing the Children’s Television Programming Reports. Question 15 of Form 398 asks whether the licensee has broadcast on-air announcements, as required, to advise the public of the existence and location of its Children’s Television Programming Reports. 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 our office.

Although the FCC rules do not specify a schedule for such announcements, the FCC staff has informally approved broadcasting these 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 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 wish to include the FCC or other online location of your electronically filed Children’s Television Programming Reports in these 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 in the Station’s online public file available at” If you are still required to maintain a paper public inspection file because of a long-pending renewal application, please contact us regarding the text of this announcement.

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 would generally not be.

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 into 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. Thus, stations may need to obtain information from their multicast stream program providers and supplement it with information about any commercial material that is 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. 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: (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 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 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, the records need not be uploaded to the licensee’s public file. However, 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, could be extremely useful in the event that questions are raised about the adequacy of the station’s performance. As a consequence, we strongly urge licensees to consider maintaining records of this nature.

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. 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 be readily compared through online access, it is likely that the nature and amount of the programming reflected will become even more central to whether a station has done “enough” to merit renewal of its license. Therefore, it is critically important that every station 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 on an on-going basis.

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 both of the Class A eligibility requirements: (i) the broadcast of a minimum of 18 hours per day; and(ii) the broadcast of 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 into the public inspection file or how often such documentation must be placed in the file with regard to these qualifying obligations. We recommend 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: Media