Articles Posted in Low Power & Class A Television

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by October 10, 2017, reflecting information for the months of July, August, and September 2017.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires the station to maintain and place in the public inspection file a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A television station compliance discussed below. We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness. Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term. Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs. Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their public inspection file. The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the public inspection file by January 10, April 10, July 10, and October 10 of each year. The next Quarterly List is required to be placed in stations’ public inspection files by October 10, 2017, covering the period from July 1, 2017 through September 30, 2017. Continue reading →

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by October 10, 2017, reflecting programming aired during the months of July, August, and September 2017.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 (“Act”) 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 under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements. Specifically, stations must: (1) place in their online public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) submit FCC Form 398, which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under. Form 398 must be filed electronically with the FCC. The FCC automatically places the electronically filed Form 398 filings into the respective station’s online public inspection file. However, each station should confirm that has occurred to ensure that its online public inspection file is complete. The base fine for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Broadcasters must file their reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

Noncommercial Educational Television Stations

Because 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, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they do not need to complete FCC Form 398. They must, however, 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 available that demonstrates its efforts to meet the needs of children.

Commercial Television Stations
Commercial Limitations

The Commission’s rules require that stations limit the amount of “commercial matter” appearing in children’s programs to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend. In addition to commercial spots, website addresses displayed during children’s programming and promotional material must comply with a four-part test or they will be considered “commercial matter” and counted against the commercial time limits. In addition, the content of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. Program promos also qualify as “commercial matter” unless they promote children’s educational/informational programming or other age-appropriate programming appearing on the same channel. Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis.

For commercial stations, proof of compliance with these commercial limitations must be placed in the online 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 online public inspection file by October 10, 2017, covering programming aired during the months of July, August, and September 2017.

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. The FCC has not addressed how this approach can be utilized since the advent of online public inspection files.
  • 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 the 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. As noted above, commercial limits apply only to programs originally produced and broadcast primarily for an audience of children ages 12 and under.

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According to a newly-released Public Notice, the FCC has directed the U.S. Department of Treasury to pay all broadcasters who had winning bids in the recently concluded spectrum incentive auction.  The only exceptions are those broadcasters that failed to submit sufficient banking information to the Commission for payment to be made.  Since the FCC does not control the actual release of funds, it indicates it will deem the amounts as paid five business days from the release of yesterday’s Public Notice (ie, July 27).  Any broadcaster expecting to be paid that is not listed in the attachment to the Public Notice will want to promptly fix any issues with its banking information so that it too can receive payment.

The Public Notice also establishes the deadline for each category of auction winner to go off-air after getting paid. For the fewer than a dozen stations actually terminating service and going permanently dark, yesterday’s announcement is a major milestone, establishing their last day of operation as October 25, 2017.  These stations can actually cease operating as early as late August, but only if they start airing their required notices to viewers and sending their notices to MVPDs immediately.  Those needing a longer goodbye can ask for additional time to remain on air as long as they can show the FCC good cause for continuing to operate beyond the deadline.

The approximately 30 stations that elected to move to a high or low VHF channel obviously do not face a “go dark” deadline.  Instead, they will transition to their new channel much the same way as stations being involuntarily repacked.  In other words, these stations will start operations on their new channels according to the FCC’s previously-announced transition phase assignments.  They’ll just do so with lighter hearts and heavier pockets than repacked stations.

The majority of the stations listed in the Public Notice as being eligible for an auction payment indicated at the start of the auction (in their Form 177) that they had entered into or intended to enter into a channel sharing agreement for post-auction operation.  These stations have until January 23, 2018 to cease operating on their current channel and commence operations on their shared channel.  If a station’s “intention” to enter into a channel sharing agreement has not yet been realized, it will have until January 23, 2018 to get that done.  In addition, the FCC is allowing channel sharing stations to request up to two 90-day extensions (until July 2018) if they need it.

The timing of yesterday’s announcement effectively means that auction winners whose channel sharing partner was assigned to a new channel as part of the repack will have to transition twice—once to their sharing partner’s pre-transition channel, and a second time to their partner’s repacked channel.  Since the first transition phase testing period does not begin until September 14, 2018, even a channel sharee obtaining both 90-day extension periods would have to get special dispensation from the FCC or go dark for some period of time if it wants to avoid having to do a two-step transition.

While bidding in the first-ever broadcast incentive auction has been over for months now, today’s Public Notice is a major step in finally closing the book on that auction.  The U.S. Treasury will be sending auction payments out over the next few days, and once that is done, all eyes will be on the repack itself.  Given last week’s implosion of the FCC’s filing system under the strain of the initial round of repack construction permit applications and reimbursement claims, the repack promises to be a challenging endeavor for both broadcasters and the FCC.  However, for those broadcasters whose pockets are flush with auction payments, the repack might seem just a little less burdensome.

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by July 10, 2017, reflecting programming aired during the months of April, May, and June 2017.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 (“Act”) 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 under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements. Specifically, stations must: (1) place in their online public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) submit FCC Form 398, which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under. Form 398 must be filed electronically with the FCC. The FCC automatically places the electronically filed Form 398 filings into the respective station’s online public inspection file. However, each station should confirm that has occurred to ensure that its online public inspection file is complete. The base fine for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Broadcasters must file their reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

Noncommercial Educational Television Stations

Because 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, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they do not need to complete FCC Form 398. They must, however, 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 available that demonstrates its efforts to meet the needs of children.

Commercial Television Stations

Commercial Limitations

The Commission’s rules require that stations limit the amount of “commercial matter” appearing in children’s programs to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend. In addition to commercial spots, website addresses displayed during children’s programming and promotional material must comply with a four-part test or they will be considered “commercial matter” and counted against the commercial time limits. In addition, the content of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. Program promos also qualify as “commercial matter” unless they promote children’s educational/informational programming or other age-appropriate programming appearing on the same channel. Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis.

For commercial stations, proof of compliance with these commercial limitations must be placed in the online 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 online public inspection file by July 10, 2017, covering programming aired during the months of April, May, and June 2017. Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by July 10, 2017, reflecting information for the months of April, May, and June 2017.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires the station to maintain and place in the public inspection file a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A television station compliance discussed below. We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness. Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term. Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs. Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their public inspection file. The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the public inspection file by January 10, April 10, July 10, and October 10 of each year. The next Quarterly List is required to be placed in stations’ public inspection files by July 10, 2017, covering the period from April 1, 2017 through June 30, 2017. All TV stations, as well as commercial radio stations in the Top-50 Nielsen Audio markets that have five or more full-time employees, must post their Quarterly Lists to the online public inspection file. Continue reading →

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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others.  This month’s issue includes:

Headlines:

  • Former Broadcast Licensee Faces $144,344 Fine for Operating Kentucky LPTV Station Without a License for 18 Years
  • FCC Proposes $20,000 Fine Against California Noncommercial TV Station for Public File and Related Violations
  • FCC Agrees to Reduce Fines for Untimely Children’s Television Programming Reports Based on Inability to Pay

A “Harmless Chihuahua” No More: FCC Proposes Maximum Fine for Operating Low Power TV Station Without a License

Two individuals are facing a $144,344 proposed fine for operating a Kentucky low power TV (“LPTV”) station without a license for the last 18 years. Section 301 of the Communications Act prohibits any person from operating any apparatus for the transmission of energy, communications, or signals by radio within the United States without FCC authorization. Additionally, Section 74.765 of the FCC’s Rules requires licensees to ensure that a copy of the license is placed in the station’s records and is available for public inspection.

The FCC initially authorized construction of the station in 1987, and the station’s license application was granted in 1990. In April 1993, the FCC granted an application to renew the station’s license for a term expiring August 1, 1998. However, no subsequent license renewal application was ever filed for the station. In April 2004, the FCC sent a letter to the station stating it had not received a license renewal application, and set a 30 day deadline to prove that a renewal application had been filed before the FCC would update its CDBS database to reflect that the license had been cancelled. After receiving no response, the FCC updated CDBS to list the station’s license as “cancelled”.

The FCC later came to learn through an unrelated Experimental STA application that the station was still operating. As a result, in August 2016, FCC agents traveled to the station’s formerly authorized antenna site, where a technician confirmed that the station was, in fact, still operating. The agents then traveled to the station’s studio and spoke with an individual who identified himself as the “operations manager”. The operations manager was unable to provide the agents with evidence of a valid license to operate the station, but asserted that the station’s license renewal application had been filed in 1993, implied that the FCC lost the 1993 filing, and that, as a result, the license remained in effect. The agents informed the operations manager that a current, valid license was necessary to operate the station and that, without one, the station’s transmissions must immediately stop. The agents also issued a Notice of Unlicensed Radio Operation (“NOURO”) stating in bold, capital letters: “UNLICENSED OPERATION OF THIS RADIO STATION MUST BE DISCONTINUED IMMEDIATELY.”

In response to the NOURO, the operations manager reiterated the argument he made to the FCC agents at the station. In addition to asserting that the station never received confirmation of grant of the 1993 renewal, the response stated the station operators had never received any other communication from the FCC about the station, and CDBS showed “that the [1993] renewal was granted on 7/27/1993 without an expiration.” The response argued that the failure to file a renewal application in 1998 should therefore be excused. Further, the response indicated that despite the NOURO’s “request” to cease operations, the station remained on air so as to not deprive its viewers of “their only source of news and other events.” FCC agents returned to the station’s antenna site in September and confirmed that the station was still transmitting.

Consequently, the FCC determined that the station operators had willfully and repeatedly violated Section 301 of the Act. According to FCC records, the Media Bureau mailed the 1993 license renewal to the station’s address of record. The FCC emphasized, however, that regardless of whether the license renewal was actually received, licensees are responsible for knowing their obligations, including their duty to seek timely license renewals. In this regard, the FCC noted that license renewal reminders are “merely provided as a courtesy.” The FCC also rejected the operators’ CDBS argument because (1) CDBS did not exist in 1998, so the station could not have relied on it at the time the license renewal was due, and (2) both CDBS and the 1993 renewal authorization state that the license expired August 1, 1998.

The FCC’s base fine for operation of a station without authorization is $10,000 for each violation or each day of a continuing violation. Citing the “egregious” and “longstanding” nature of the apparent violations, the FCC proposed to fine the station operators $10,000 for each of the 22 days between the day FCC agents spoke to the station’s operations manager in August 2016, and when agents confirmed that the station was still transmitting in September 2016, for a total proposed fine of $220,000. However, because the Communications Act sets the maximum fine amount for continuing violations arising from a single act or failure to act at $144,344, the FCC capped the proposed fine at $144,344. The FCC noted that, absent the statutory maximum, an upward adjustment would have been warranted because the station was operated for more than 18 years after its license expired, and more than 12 years after the FCC declared the station’s license cancelled.

In a separate statement, FCC Commissioner Michael O’Rielly supported the proposed fine, but was appalled that the station “[got] away with operating a pirate TV station for almost twenty years.” He lamented that under past leadership the FCC had “been reduced to a sometimes annoying, sometimes sleepy, but ultimately harmless Chihuahua when it came to protecting broadcast spectrum licenses,” but hoped that pirate operators were now on notice that the FCC “can and will turn that situation around.”

California Noncommercial TV Station Licensee Faces $20,000 Proposed Fine for Public Inspection File and Related Violations

The FCC proposed a $20,000 fine against a California noncommercial educational (“NCE”) TV station licensee for public inspection file and related violations.

Section 73.3527 of the FCC’s Rules requires NCE licensees to maintain a public inspection file containing specific types of information related to station operations, and subsection 73.3527(b)(2) requires NCE stations to upload most of that information to the FCC-hosted online public inspection file. Among the materials required to be in the file are a station’s Quarterly Issues/Programs Lists, which must be retained until final FCC action on the station’s next license renewal application. Issues/Programs Lists detail programs that have provided the station’s most significant treatment of community issues during the preceding quarter. Section 73.3527 also requires stations to keep in their public file for two years from the date of broadcast a list of donors that have supported specific programs. Continue reading →

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Ever since the idea of holding an incentive auction to reclaim and repurpose broadcast spectrum for new wireless uses first surfaced, a major concern has been how to balance full power stations’ need to replicate their pre-auction signal coverage with low power television (LPTV) and TV Translator stations’ need for displacement channels in the remaining television band.  Throughout the process, the FCC has announced a number of initiatives aimed at balancing those needs.

Included among these efforts is the FCC’s creation of a new category of translator for full-power TV stations to fill in loss areas, a special filing window for LPTV, TV Translator and analog-to-digital replacement translator stations seeking displacement channels, and rules permitting LPTV and TV Translator stations to channel share, both among themselves and with full-power stations.  Until last week, stations in these secondary services have had to stand on the sidelines and wait to see how these initiatives play out.  That changed last Friday when the FCC released a detailed Public Notice outlining procedures and timelines applicable to LPTV, TV Translator, and replacement translator stations during the repack.

Most significantly, the FCC announced its intent to open a Special Displacement Window in the first quarter of 2018.  The FCC stated that it anticipates releasing a public notice in November or December of this year that will give 60 days’ warning of the opening of the Special Displacement Window, which will remain open for 30 days.

Only LPTV, TV Translator, and analog-to-digital replacement translator stations that were “operating” on April 13, 2017 will be eligible to file displacement applications in the window.  To be deemed an “operating” station, the station must have constructed its facilities and filed a license to cover application by that date.  These stations can file a displacement application in the Special Displacement Window if they are displaced by a full-power or Class A TV station being repacked in Channels 2 through 36, or if they are on a channel higher than 36 and are displaced by the flexible uses envisioned by the FCC for the portion of the broadcast band repurposed via the auction.

In the filing window, applicants will have to provide interference protection to other users in the repacked TV Band and in adjacent bands, including land mobile operations, existing LPTV, TV translator and analog-to-digital replacement translator stations, full-power and Class A TV stations that were not repacked, repacked full-power and Class A TV stations as specified in the FCC’s Closing and Reassignment Public Notice, and full-power and Class A television station facilities specified in applications filed in either of the two priority windows occurring prior to the Special Displacement Window.

Helping to balance those restrictions, displaced stations may specify as their displacement channel the pre-auction channel of a station being repacked or which relinquished its spectrum, subject to the condition that operations on the displacement channel cannot commence until the full-power or Class A TV station currently occupying the channel vacates it.  To assist stations in developing their displacement proposals, the November/December public notice announcing the Special Displacement Window will also contain updated channel availability information identifying locations and channels that displaced stations cannot propose in their displacement applications.

To avoid a “race to the courthouse” when the window opens, all applications filed in the Special Displacement Window will be deemed to have been filed on the last day of the window for purposes of determining mutual exclusivity.  In other words, an application filed on the first day of the window will have no higher processing priority than an application filed on the last day of the window.  In cases of mutual exclusivity, the parties will be given an opportunity to resolve the mutual exclusivity among themselves via engineering amendments or settlements.

If applications remain mutually exclusive after the settlement period, the FCC will give priority to any application filed by a full-power TV station for displacement of an analog-to-digital replacement translator station or for a new digital-to-digital replacement translator station.  The analog-to-digital replacement translator stations were authorized to fill in areas of a full-power station’s analog contour that were lost in the digital transition.  The digital-to-digital replacement translator stations are a new class of station intended to serve a similar role in filling in areas of a full-power TV station’s digital contour that its repacked facilities can no longer reach.

Full-power TV stations can apply for new digital-to-digital replacement translator stations beginning with the opening of the Special Displacement Window and continuing through July 13, 2021.  Whenever filed, digital-to-digital replacement translator applications will have priority over all prior new, minor change, and displacement applications filed by LPTV and TV Translator stations.  If applying this priority does not resolve mutual exclusivity among applications filed in the Special Displacement Window, the FCC will resort to conducting an auction among the applicants. Continue reading →

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To use a metaphor those headed to Vegas for the NAB Show will appreciate, two of the three wheels on the Spectrum Repack slot machine had stopped spinning, and all eyes have since been anxiously watching that third and final wheel.  The first stopped spinning on January 13, 2017 when the Reverse Auction concluded.  The second stopped on March 30, 2017 when the Assignment Phase of the Forward Auction came to an end.  The third wheel stopped this afternoon with the release of the FCC’s long-awaited Incentive Auction Closing and Channel Reassignment Public Notice.  That Public Notice formally marks the end of the Incentive Auction, and publicly reveals which stations got cherries and which stations got lemons in the auction and repack.

According to the FCC, there were 175 TV stations that sold spectrum in the auction for just over $10 Billion in total.  Of these 175, 30 are moving to a VHF channel and 133 have indicated that they will be channel sharing with a station that did not sell spectrum in the auction.  That suggests only twelve stations nationwide sold their spectrum with the intent to go dark permanently.

For those stations that did not sell spectrum in the auction, the FCC indicates that 957 of them are being involuntarily moved to new channels.  As a result, the Spectrum Repack looks like it will be every bit as complex and all-encompassing as many had feared.

In that regard, the Public Notice also locks in the deadlines broadcasters must meet for the 39-month Spectrum Repack, officially launching the rush to secure equipment and services needed by each repacked TV station to build out new transmitting facilities. The FCC had addressed in general terms many of the repack deadlines in various notices and webinars, but nearly all were geared to the release date of the Public Notice.  As a result, while we generally knew how long the FCC was allotting for various steps of the repack, they all remained moving targets until today’s release of the Public Notice.

With the Public Notice now in hand, we have assembled below the key deadlines. Continue reading →

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by April 10, 2017, reflecting programming aired during the months of January, February, and March 2017.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 (“Act”) 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 under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements. Specifically, stations must: (1) place in their online public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) submit FCC Form 398, which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under. Form 398 must be filed electronically with the FCC. The FCC automatically places the electronically filed Form 398 filings into the respective station’s online public inspection file. However, each station should confirm that has occurred to ensure that its online public inspection file is complete. The base fine for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Broadcasters must file their reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

Noncommercial Educational Television Stations

Because 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, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they do not need to complete FCC Form 398. They must, however, 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 available that demonstrates its efforts to meet the needs of children.

Commercial Television Stations

Commercial Limitations

The Commission’s rules require that stations limit the amount of “commercial matter” appearing in children’s programs to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend. In addition to commercial spots, website addresses displayed during children’s programming and promotional material must comply with a four-part test or they will be considered “commercial matter” and counted against the commercial time limits. In addition, the content of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. Program promos also qualify as “commercial matter” unless they promote children’s educational/informational programming or other age-appropriate programming appearing on the same channel. Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis.

For commercial stations, proof of compliance with these commercial limitations must be placed in the online 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 online public inspection file by April 10, 2017, covering programming aired during the months of January, February, and March 2017.

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. The FCC has not addressed how this approach can be utilized since the advent of online public inspection files.
  • 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 the 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. As noted above, commercial limits apply only to programs originally produced and broadcast primarily for an audience of children ages 12 and under.

Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2017, reflecting information for the months of January, February and March 2017.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires the station to maintain and place in the public inspection file a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A television station compliance discussed below. We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness. Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term. Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs. Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their public inspection file. The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the public inspection file by January 10, April 10, July 10, and October 10 of each year. The next Quarterly List is required to be placed in stations’ public inspection files by April 10, 2017, covering the period from January 1, 2017 through March 31, 2017. All TV stations, as well as commercial radio stations in the Top-50 Nielsen Audio markets that have five or more full-time employees, must post their Quarterly Lists to the online public inspection file. Continue reading →