• January 2012 Television Deadlines: Issue-Responsive Programming Lists, Children’s Television Programming Reports, And Children’s Advertising Documentation
  • December 28, 2011
  • Law Firm: Lerman Senter PLLC - Washington Office
  • 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.