Client Alert: 2010 Fourth Quarter Children’s Television Programming Documentation

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by January 10, 2011, reflecting programming aired during the months of October, November and December, 2010.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 and the FCC Rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and younger; and (2) air programming responsive to the educational and informational needs of children 16 years of age and younger.

To demonstrate their compliance with these requirements, stations must: (1) place in their public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television; and (2) complete FCC Form 398, which requests information regarding the educational and informational programming aired for children 16 years of age and under. The Form 398 must be filed electronically with the FCC and placed in the public inspection file. The base forfeiture for noncompliance with the requirements of the FCC’s Children Television Programming Rule is $10,000.

In a recent series of decisions, the FCC issued fines of between $25,000 and $70,000 to stations that had failed to comply with one or more of the FCC’s children’s television requirements, with $270,000 in fines being issued in a single day.

Noncommercial Educational Television Stations

Since noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations. Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their public inspection files. Similarly, while noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they are exempt from the obligation to complete FCC Form 398. However, they must maintain records of their own in the event their performance is challenged at license renewal time. In the face of such a challenge, a noncommercial station will be required to have documentation readily available which demonstrates its efforts to meet the needs of children.

Commercial Television Stations

A. Commercial Limitations

For commercial stations, proof of compliance with the commercial limitations must be placed in the public inspection file by the tenth day of the calendar quarter following the quarter during which the commercials were aired. Consequently, this proof of compliance should be placed in your public inspection file by January 10, 2011 (covering programming aired during the months of October, November and December, 2010).

The definition of commercial matter includes promos for television programs that are not children’s educational/informational programming or other age-appropriate programming appearing on the same channel. In addition, website addresses displayed during children’s programming or promotional material must comply with a four-part test or they will be counted against the commercial time limits. In addition, the contents of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations.

Documentation to show that the station has been complying with this requirement can be maintained in several different forms:

• Stations may, but are not obligated to, keep program logs in order to comply with the commercial limits rules. If the logs are kept to satisfy the documentation requirement, they must be placed in the station’s public inspection file. The logs should be reviewed by responsible station officials to be sure they reflect compliance with both the numerical and content requirements contained in the rules.
• Tapes of children’s programs will also satisfy the rules, provided they are placed in the station’s public inspection file and are available for viewing by those who visit the station to examine the public inspection file.
• A station may create lists of the number of commercial minutes per hour aired during identified children’s programs. The lists should be reviewed on a routine basis by responsible station officials to be sure they reflect compliance with both the numerical and content requirements contained in the rule.
• The station and its network/syndicators may certify that as a standard practice, they format and air the identified children’s programs so as to comply with the statutory limit on commercial matter, and provide a detailed listing of any instances of noncompliance. Again, the certification should be reviewed on a routine basis by responsible station officials to ensure that it is accurate, and that the station did not preempt programming or take other action that might affect the accuracy of the network/syndicator certification.
• Regardless of which method a station uses to show compliance with the commercial limits, it must identify the specific programs that it believes are subject to the rules, and must list any instances of noncompliance. Commercial limits apply only to programs originally produced and broadcast primarily for an audience of children 12 and under.

B. Programming Requirements

Full power and Class A television stations must also file with the FCC the current version of FCC Form 398 (which describes the station’s educational and informational programming for children 16 years of age and under) and place a copy of it in the station’s public inspection file by the tenth day of the calendar quarter following the quarter to which it pertains.

Under the current license renewal processing guidelines, stations must air an average of at least three hours of “core programming” each week during the quarter in order to receive staff-level approval of the children’s programming portion of the station’s license renewal application. Stations that air “somewhat less” than an average of three hours per week of “core programming,” i.e., two and one-half hours, may still receive staff-level approval of their renewals if they demonstrate that they aired a package of programming that demonstrates a commitment at least equivalent to airing three hours of “core programming” per week. Stations failing to meet one of these guidelines will have their license renewal applications reviewed by the full Commission for compliance with the Children’s Television Act of 1990.

To assist stations in identifying which programs qualify as “core educational and informational” for children 16 years of age and younger, , the Commission has adopted the following definition: “core programming” is television programming that has as a significant purpose serving the educational and informational needs of children 16 years old or younger, which is at least 30 minutes in length, aired weekly on a regular basis between 7:00 a.m. and 10:00 p.m. Each core program must be identified by the E/I symbol displayed throughout the program. In addition, information identifying each core program the station airs, including an indication of the target child audience, must be provided to publishers of program guides. The licensee must also publicize the existence and location of the station’s children’s television reports in the public inspection file.

Filing of FCC Form 398 with the FCC

Form 398 must be filed electronically on a quarterly basis at the same time that it is placed in the public inspection file. As a result, full power and Class A television stations should file a Form 398 electronically with the FCC by the January 10, 2011 deadline.

Preparation of the Children’s Programming Documentation

In preparing the necessary documentation to demonstrate compliance with the children’s television rules, a station should keep the following in mind:

• FCC Form 398 and documentation concerning commercialization will be very important “evidence” of the station’s compliance when the station’s license renewal application is filed, and their preparation should be done carefully.
• Accurate and complete records of what programs were used to discuss or treat specific children’s needs and issues and what programs aired that were specifically designed for particular age groups should be preserved so that the job of completing the FCC Form 398 and creating documentation concerning commercialization is made easier.
• A station should prepare all documentation in time for it to be placed in the public inspection file by the due date. If the deadline is not met, the station should give the true date when the information was placed in the file and explain its lateness. A station should avoid creating the appearance that it was timely filed when it was not.
• These are only a few ideas as to how stations can make complying with the station’s children’s television obligations easier. Please do not hesitate to contact the Communications Practice Section for specific advice on compliance with these rules.

Class A Television Stations Only – Certification of Eligibility

Although not directly related to the requirement that Class A stations file children’s programming reports, it is important to note that Class A stations must certify that they continue to meet the FCC’s eligibility and service requirements for Class A television status under Section 73.6001 of the FCC’s Rules. While the public inspection file rule, Section 73.3526(e)(17), does not specifically state when this certification should be prepared and placed in the public inspection file, the prudent course for Class A television stations is to place that certification in the public inspection file on a quarterly basis as well.

For assistance in preparing and completing any of this documentation, please contact the lawyers in the Communications Practice Section.