A Look at This Week’s Changes to the FCC’s KidVid Rules

At its July 2019 Open Meeting this week, the FCC voted to make several changes to its Children’s Television Programming rules.  It released its final Order adopting the changes this afternoon.  Although characterized by Commissioner O’Rielly as “modest” changes, the revised rules are likely to alter television broadcasters’ compliance efforts in several significant respects, including the time at which the programming is aired, the type of programming that qualifies as educational, and how a broadcaster demonstrates compliance with the revised rules.

By way of background, the Children’s Television Act of 1990 (CTA) directed the FCC to adopt rules to limit the amount of advertising aired during children’s television programming, and to review at license renewal time the extent to which each television station “has served the educational and informational needs of children through the licensee’s overall programming, including programming specifically designed to serve such needs.”  The FCC subsequently adopted a license renewal “safe harbor” for stations airing an average of at least three hours of “core” children’s programming per week.  To qualify as “core”, the programming must meet a number of requirements, which include having as a significant purpose serving the educational and informational needs of children, being regularly scheduled and at least 30 minutes in length, and airing between 7 a.m. and 10 p.m.  To be able to monitor a station’s compliance, the FCC requires each full power and Class A TV station to file a Children’s Television Programming Report detailing its service to children’s viewing needs on a quarterly basis.

With the advent of digital television, the FCC added to its rules a requirement that TV stations engaged in multicasting must also meet the three-hour weekly average for each additional stream of programming broadcast.

In adopting this week’s changes, the FCC modified the time periods during which core children’s programming can be aired, the amount needed to meet the processing guidelines, and the process by which a broadcaster can demonstrate its compliance with the CTA and the FCC’s rules.

For example, the FCC expanded the time period during which educational children’s television programming can be aired and still be counted towards the FCC’s guidelines.  Previously, if a broadcaster intended to have its educational children’s television programming count towards the safe harbor license renewal processing guideline of 3 hours per week, the programming had to be aired between 7:00 a.m. and 10:00 p.m.  However, some broadcasters, especially those network affiliates in the Pacific time zone, ran into frequent issues of having their educational children’s programming preempted by live sporting events, and several commenters noted that children are often awake at an earlier hour, especially during the summer.  In light of these considerations, the FCC expanded the time period by one hour, so that eligible programming can be aired between 6:00 a.m. and 10:00 p.m. once the rule changes go into effect.

Under the new rules, broadcasters will still be able to meet their children’s programming obligations by airing three hours of core programming per week, as averaged over a six-month period, but now have two other options as well.  These include (i) airing 26 hours per quarter of core programming, plus an additional 52 hours of programming throughout the year that is at least 30 minutes in length, but which is not provided on a regularly-scheduled basis, such as educational specials or other non-weekly programming; or (ii) airing 26 hours per quarter of core programming, plus an additional 52 hours of programming throughout the year that is not aired on a regularly scheduled basis, but which may be shorter than 30 minutes, such as PSAs or interstitials.  Also, under any scenario, broadcasters will be permitted to count as regularly-scheduled any children’s educational program episode that was preempted but made good within seven days before or after the date it was originally scheduled to air.

Among the other revisions made by the FCC, two stand out.  First, the FCC substantially lessened the burden on broadcasters by eliminating the quarterly Children’s Television Programming Report requirement and replacing it with an annual report.  Second, the FCC voted to eliminate the requirement that broadcasters run an additional three hours of core children’s programming for each multicast channel transmitted.  The FCC determined that the CTA did not require such additional children’s programming, that the programming costs to broadcasters were unnecessary, and that those costs discouraged the offering of multicast channels and the additional programming they provide.  The FCC will also permit a TV station to relocate up to 13 hours per quarter of regularly-scheduled core programming from its primary stream to one of its multicast streams.

The rules will become effective 30 days after their publication in the Federal Register, except for those that require review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (most notably the changes to the Children’s Television Programming Report).  OMB approval typically takes much longer than Federal Register publication.

So TV stations should start revising their children’s programming plans now, but will need to hold off a little longer before those plans can be implemented.