Articles Posted in Low Power & Class A Television

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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 January 10, 2017, reflecting programming aired during the months of October, November, and December 2016.

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 January 10, 2017, covering programming aired during the months of October, November, and December 2016.

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.

Programming Requirements

To assist stations in identifying which programs qualify as “educational and informational” for children 16 years of age and under, and determining how much of that programming they must air to comply with the Act, the Commission has adopted a definition of “core” educational and informational programming, as well as license renewal processing guidelines regarding the amount of core educational programming aired.

The FCC defines “core programming” as television programming that has as a significant purpose serving the educational and informational needs of children 16 years old or under, which is at least 30 minutes in length, and which is aired weekly on a regular basis between 7:00 a.m. and 10:00 p.m. Each core program must be identified by an E/I symbol displayed throughout the program. In addition, the licensee must provide information identifying each core program that it airs, including an indication of the program’s target child audience, 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. The FCC has not prescribed a specific manner of publicizing this information, but enforcement actions indicate that the FCC expects the effort to include an on-air component. We suggest placing an announcement on the station website and periodically running on-air announcements.

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 show 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.

FCC Form 398 is designed to provide the public and the Commission with the information necessary to determine compliance with the license renewal processing guidelines. The report captures information regarding the preemption of children’s programming, and requires stations to create an addendum to the form called a “Preemption Report” which provides information on: (1) the date of each preemption; (2) if the program was rescheduled, the date and time the rescheduled program aired; (3) the reason for the preemption; and (4) whether promotional efforts were made to notify the public of the time and date that the rescheduled program would air.

Filing of FCC Form 398

Form 398 must be filed electronically on a quarterly basis. As a result, full power and Class A television stations should file a Form 398 electronically by January 10, 2017.

Preparation of the 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; preparation of these documents should be done carefully.
  • Accurate and complete records of what programs were used to meet the educational and informational needs of children 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 children’s television requirements easier. Please do not hesitate to contact the attorneys in the Communications Practice for specific advice on compliance with these rules or for assistance in preparing any of this documentation.

Class A Television Stations Only

Although not directly related to the requirement that Class A television stations file children’s programming reports, it is important to note that Class A television 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 relevant subsection of 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, we believe that since Section 73.6001 assesses compliance on a quarterly basis, the prudent course for Class A television stations is to place the Class A certification in the public inspection file on a quarterly basis as well.

A PDF version of this article can be found at 2016 Fourth Quarter Children’s Television Programming Documentation.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by January 10, 2017, reflecting information for the months of October, November, and December 2016.

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 January 10, 2017, covering the period from October 1, 2016 through December 31, 2016. 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. Note that, effective as of June 24, 2016, the website for the new online public inspection file for both TV and radio stations is https://publicfiles.fcc.gov/.

Stations should keep the following in mind:

  • Stations should maintain routine outreach to the community to learn of various groups’ perceptions of community issues, problems, and needs. Stations should document the contacts they make and the information they learn. Letters to the station regarding community issues should be made a part of the station’s database.
  • There should be procedures in place to organize the information that is gathered and bring it to the attention of programming staff with a view towards producing and airing programming that is responsive to significant community issues. This procedure and its results should be documented.
  • Stations should ensure that there is some correlation between the station’s contacts with the community, including letters received from the public, and the issues they have identified in their Quarterly Lists. A station should not overlook significant issues. In a contested license renewal proceeding, while the station may consider what other stations in the market are doing, each station will have the burden of persuading the FCC that it acted “reasonably” in deciding which issues to address and how.
  • Stations should not specify an issue for which no programming is identified. Conversely, stations should not list programs for which no issue is specified.
  • Under its former rules in this area, the FCC required a station to list five to ten issues per Quarterly List. While that specific rule has been eliminated, the FCC has noted that such an amount will likely demonstrate compliance with the station’s issue-responsive programming obligations. However, the FCC has noted that some licensees may choose to concentrate on fewer than five issues if they cover them in considerable depth. Conversely, the FCC has noted that other broadcasters may address more than ten issues in a given quarter, due perhaps to program length, format, etc.
  • The Quarterly Lists should reflect a wide variety of significant issues. For example, five issues affecting the Washington, DC community might be: (1) the fight over statehood for the District of Columbia; (2) fire code violations in DC school buildings; (3) clean-up of the Anacostia River; (4) reforms in the DC Police Department; and (5) proposals to increase the use of traffic cameras on local streets. The issues should change over time, reflecting the station’s ongoing ascertainment of changing community needs and concerns.
  • Accurate and complete records of which programs were used to discuss or treat which issues should be preserved so that the job of constructing the Quarterly List is made easier. The data retained should help the station identify the programs that represented the “most significant treatment” of issues, e.g., duration, depth of presentation, frequency of broadcast, etc.
  • The listing of “most significant programming treatment” should demonstrate a wide variety in terms of format, duration (long-form and short-form programming), source (locally produced is presumptively the best), time of day (times of day when the programming is likely to be effective), and days of the week. Stations should not overlook syndicated and network programming as ways to address issues.
  • Stations should prepare each Quarterly List in time for it to be placed in their public inspection file on or before the due date. If the deadline is not met, stations should give the true date when the document was placed in the public inspection file and explain its lateness. Stations should avoid creating the appearance that a document was timely placed in the public inspection file when it was not.
  • Stations should show that their programming commitment covers all three months within each quarter.

These are just some suggestions that can assist stations in meeting their obligations under the FCC’s rules. The requirement to list programs providing the most significant treatment of issues may persuade a station to review whether its programming truly and adequately educates the public about community concerns.

Attached is a sample format for a “Quarterly Issues/Programs List” to assist stations in filling out the Quarterly List. Please do not hesitate to contact the attorneys in the Communications Practice for specific advice on how to ensure your compliance efforts in this area are adequate.

Class A Television Stations Only

Class A television 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 relevant subsection of 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, we believe that since Section 73.6001 assesses compliance on a quarterly basis, the prudent course for Class A television stations is to place the Class A certification in the public inspection file on a quarterly basis as well.

A PDF version of this article can be found at 2016 Fourth Quarter Issues/Programs List Advisory for Broadcast Stations.

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Noncommercial stations caught a break today.  For many years, broadcast stations filed annual ownership reports on the anniversary date of their license renewal deadline.  Since those deadlines varied from state to state (and even between radio and TV in the same state), determining whether a station had filed its reports on time could be challenging.  That task was further complicated by the fact that a licensee owning stations in multiple states could elect to consolidate the filing of its ownership reports for all stations on the license renewal date for any one state in which it had a station.

Ultimately, the FCC concluded that the reports didn’t need to be filed annually, and made them biennial.  The result was that it became even more difficult for the FCC to keep track of whether a station had filed on time.  In fact, a licensee that had consolidated its ownership report filing date across multiple states might not even be filing in the same year as the FCC would normally expect.

Ultimately, the FCC gave up and decided to adopt a unified national deadline for commercial TV and radio stations in 2009.  At the same time, it expanded the list of entities that were required to file the reports (previously, sole proprietorships, general partnerships composed only of individuals, and LPTV licensees were exempt).  It set November 1 of odd-numbered years as the consolidated filing deadline, and indicated that it planned to eventually adopt a unified national deadline for noncommercial stations as well.

However, the FCC quickly discovered that given the increased complexity of the reports, and the fact that the information reported in them was required to reflect a station’s ownership as of October 1 of that same year, broadcasters were having trouble generating all of the required ownership reports in just 30 days.  The FCC also had some teething pains with the new electronic form, with the result that the November 1, 2009 deadline ended up being extended multiple times, ultimately resulting in a deadline for the 2009 reports of July 8, 2010.

After that painful ordeal, the FCC in 2011 permanently moved the commercial station deadline to December 1 of odd-numbered years, providing stations with a 61-day period to file the reports.  Perhaps because of how difficult and drawn out the process of establishing a unified deadline for commercial stations had been, the FCC moved very slowly in establishing the promised unified deadline for noncommercial stations.  It wasn’t until January 8, 2016 that the FCC moved forward on that front, adopting an Order creating a new online form (FCC Form 2100, Schedule 323-E) and establishing a unified national deadline for noncommercial stations to file it.  Because the new form had to be approved by the Office of Management and Budget (and that approval published in the Federal Register) before it could be used, it has still not gone into effect, meaning that throughout 2016, noncommercial stations have continued to file on a state-by-state basis using the old form.  It therefore seemed likely that a lot of noncommercial stations would end up filing two sets of ownership reports in 2017—one set on a station’s license renewal anniversary, and one set on the likely December 1, 2017 unified filing date.

Thankfully, the FCC announced this afternoon that it would not be burdening noncommercial stations with dual filings in 2017, releasing an Order suspending all 2017 biennial ownership reporting deadlines for noncommercial stations and announcing that 2017 will indeed be the year that noncommercial stations will finally have a common ownership reporting deadline.  That deadline will be December 1 of odd-numbered years, the same as the deadline for commercial stations.

That’s good news for noncommercial stations in general, and particularly for those with limited resources to make such filings.  Consider it an early Christmas gift from the FCC.

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The next Quarterly List for months of July, August and September must be placed in stations’ public inspection files by October 10, 2016.

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, 2016, covering the period from July 1, 2016 through September 30, 2016. All TV stations must post their Quarterly Lists to the online public inspection file. Additionally, commercial radio stations in the Top-50 Nielsen Audio markets that have five or more full-time employees are now required to post their Quarterly Lists to the online public inspection file as a result of the FCC’s January 2016 decision to extend the online public file requirement to broadcast radio stations. Note that, effective as of June 24, 2016, the website for the new online public inspection file for both TV and radio stations is https://publicfiles.fcc.gov/.

Stations should keep the following in mind:

  • Stations should maintain routine outreach to the community to learn of various groups’ perceptions of community issues, problems, and needs. Stations should document the contacts they make and the information they learn. Letters to the station regarding community issues should be made a part of the station’s database.
  • There should be procedures in place to organize the information that is gathered and bring it to the attention of programming staff with a view towards producing and airing programming that is responsive to significant community issues. This procedure and its results should be documented.
  • Stations should ensure that there is some correlation between the station’s contacts with the community, including letters received from the public, and the issues they have identified in their Quarterly Lists. A station should not overlook significant issues. In a contested license renewal proceeding, while the station may consider what other stations in the market are doing, each station will have the burden of persuading the FCC that it acted “reasonably” in deciding which issues to address and how.
  • Stations should not specify an issue for which no programming is identified. Conversely, stations should not list programs for which no issue is specified.
  • Under its former rules in this area, the FCC required a station to list five to ten issues per Quarterly List. While that specific rule has been eliminated, the FCC has noted that such an amount will likely demonstrate compliance with the station’s issue-responsive programming obligations. However, the FCC has noted that some licensees may choose to concentrate on fewer than five issues if they cover them in considerable depth. Conversely, the FCC has noted that other broadcasters may address more than ten issues in a given quarter, due perhaps to program length, format, etc.
  • The Quarterly Lists should reflect a wide variety of significant issues. For example, five issues affecting the Washington, DC community might be: (1) the fight over statehood for the District of Columbia; (2) fire code violations in DC school buildings; (3) clean-up of the Anacostia River; (4) reforms in the DC Police Department; and (5) proposals to increase the use of traffic cameras on local streets. The issues should change over time, reflecting the station’s ongoing ascertainment of changing community needs and concerns.
  • Accurate and complete records of which programs were used to discuss or treat which issues should be preserved so that the job of constructing the Quarterly List is made easier. The data retained should help the station identify the programs that represented the “most significant treatment” of issues, e.g., duration, depth of presentation, frequency of broadcast, etc.
  • The listing of “most significant programming treatment” should demonstrate a wide variety in terms of format, duration (long-form and short-form programming), source (locally produced is presumptively the best), time of day (times of day when the programming is likely to be effective), and days of the week. Stations should not overlook syndicated and network programming as ways to address issues.
  • Stations should prepare each Quarterly List in time for it to be placed in their public inspection file on or before the due date. If the deadline is not met, stations should give the true date when the document was placed in the public inspection file and explain its lateness. Stations should avoid creating the appearance that a document was timely placed in the public inspection file when it was not.
  • Stations should show that their programming commitment covers all three months within each quarter.

A PDF version of this article can be found at 2016 Third Quarter Issues/Programs List Advisory for Broadcast Stations.

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Just before the Labor Day weekend, the FCC issued its Report and Order launching the annual regulatory fee payment process for Fiscal Year 2016.  The FCC has also opened the “Fee Filer” system that must be used to pay regulatory fees.  More information and FAQs about the FY 2016 regulatory fees can be found here.

Payment in full of regulatory fees must be made by 11:59 p.m. Eastern Time on September 27, 2016. Late payment of regulatory fees will result in a 25% penalty and “red light” status, which restricts the FCC’s processing of a late payer’s applications until payment of the fees and penalties has been made.  The FCC specifically reminded participants in the ongoing TV broadcast Incentive Auction that they must pay regulatory fees for FY 2016 if they held a license or construction permit as of October 1, 2015 (and will be liable for next year’s fees if they hold a license or CP as of October 1, 2016).  The FCC also noted that payment of regulatory fees is required before Incentive Auction participants can receive any proceeds resulting from the auction, although given the pace at which the auction is proceeding, that seems unlikely to be an issue until well into next year.

As expected, regulatory fees for broadcast stations generally increased over last year, and the total fees assessed rose from $339,844,000 in FY 2015 to $384,012,497 in FY 2016.  Although the fees assessed for “operational expenses” remained the same as last year, the FCC (in a move which some might find ironic) assessed an additional $44,168,497 to offset FCC “facilities reduction costs.”  According to the FCC, those costs reflect the one-time expense of reducing the FCC’s office footprint and/or moving the FCC to a new location, and are required by Congress to be collected.

Despite the increase in total fees, middle market TV stations caught a break, with fees for stations in markets 51-100 falling from $16,275 last year to $15,200 this year. Fees for TV stations in markets 1-10, on the other hand, took the biggest jump — going from $46,825 to $60,675.

As for radio, rates increased over last year for most, but not all, stations.  In light of comments asserting that the regulatory fees proposed by the FCC last May were too burdensome for small independent radio stations, the FCC reduced the fees in the two lowest population tiers for AM and FM broadcasters.  Stations located in markets with populations of more than 3 million, previously the highest of the radio fee tiers, have been split into two groups by the FCC: (1) markets of 3,000,000-6,000,000, and (2) markets over 6,000,000.  Charts showing the regulatory fees for the various TV and radio groups are below:

Broadcast Television and TV/FM Translators and Boosters

Markets 1-10 $60,675
Markets 11-25 $45,675
Markets 26-50 $30,525
Markets 51-100 $15,200
Remaining Markets $5,000
Construction Permits $5,000
Satellite TV Stations (all markets) $1,750
Low Power TV, Class A TV, TV/FM Translators & Boosters $455

 

Broadcast Radio (AM and Full Power FM)

Population AM Class A AM Class B AM Class C AM Class D FM Classes A, B1 & C3 FM Classes B, C, C0, C1 & C2
25,000 or fewer $990 $715 $620 $685 $1,075 $1,250
25,001-75,000 $1,475 $1,075 $925 $1,025 $1,625 $1,850
75,001-150,000 $2,200 $1,600 $1,375 $1,525 $2,400 $2,750
150,001-500,000 $3,300 $2,375 $2,075 $2,275 $3,600 $4,125
500,001-1,200,000 $5,500 $3,975 $3,450 $3,800 $6,000 $6,875
1,200,001-3,000,000 $8,250 $5,950 $5,175 $5,700 $9,000 $10,300
3,000,001-6,000,000 $11,000 $7,950 $6,900 $7,600 $12,000 $13,750
Greater than 6,000,000 $13,750 $9,950 $8,625 $9,500 $15,000 $17,175

In addition, initial AM Construction Permits were assessed a $620 regulatory fee per station for FY 2016, with initial FM Construction Permits drawing a regulatory fee of $1,075 per station.

Finally, the FCC rejected a proposal by the Puerto Rico Broadcasters Association to reduce regulatory fees for stations located in Puerto Rico by 30% to reflect the economic hardships being experienced there.  The FCC responded that individual stations in Puerto Rico may request waivers of regulatory fees if they believe their conditions warrant such relief, but the Commission was unwilling to reduce the fees on a blanket basis.

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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 11, 2016, reflecting programming aired during the months of April, May, and June 2016.

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.

Note: Broadcasters may no longer use the KIDVID link to file their reports. Instead, broadcasters must now 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, 2016, covering programming aired during the months of April, May, and June 2016.

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.

Programming Requirements

To assist stations in identifying which programs qualify as “educational and informational” for children 16 years of age and under, and determining how much of that programming they must air to comply with the Act, the Commission has adopted a definition of “core” educational and informational programming, as well as license renewal processing guidelines regarding the amount of core educational programming aired.

The FCC defines “core programming” as television programming that has as a significant purpose serving the educational and informational needs of children 16 years old or under, which is at least 30 minutes in length, and which is aired weekly on a regular basis between 7:00 a.m. and 10:00 p.m. Each core program must be identified by an E/I symbol displayed throughout the program. In addition, the licensee must provide information identifying each core program that it airs, including an indication of the program’s target child audience, 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. The FCC has not prescribed a specific manner of publicizing this information, but enforcement actions indicate that the FCC expects the effort to include an on-air component. We suggest placing an announcement on the station website and periodically running on-air announcements.

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 show 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.

FCC Form 398 is designed to provide the public and the Commission with the information necessary to determine compliance with the license renewal processing guidelines. The report captures information regarding the preemption of children’s programming, and requires stations to create an addendum to the form called a “Preemption Report” which provides information on: (1) the date of each preemption; (2) if the program was rescheduled, the date and time the rescheduled program aired; (3) the reason for the preemption; and (4) whether promotional efforts were made to notify the public of the time and date that the rescheduled program would air.

Filing of FCC Form 398

Form 398 must be filed electronically on a quarterly basis. As a result, full power and Class A television stations should file a Form 398 electronically by Monday, July 11, 2016.

Preparation of the 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; preparation of these documents should be done carefully.
  • Accurate and complete records of what programs were used to meet the educational and informational needs of children 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 children’s television requirements easier. Please do not hesitate to contact the attorneys in the Communications Practice for specific advice on compliance with these rules or for assistance in preparing any of this documentation.

Class A Television Stations Only

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 relevant subsection of 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, we believe that since Section 73.6001 assesses compliance on a quarterly basis, the prudent course for Class A television stations is to place the Class A certification in the public inspection file on a quarterly basis as well.

A PDF of this article can be found at 2016 Second Quarter Children’s Television Programming Documentation.

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In a Public Notice released today, the FCC has taken the next steps towards implementing the expanded online public inspection file, which is set to go live on June 24th.  Specifically, the FCC announced that on June 13, 2016 at 1:00 p.m. Eastern Time, it will hold an online demonstration on using the new online public file.  In addition, the FCC publicized the Internet address for the new online public file, which licensees must use to create the required link from their websites to the online public file.

As we previously described in Neither Sleet Nor Snow Can Keep the Radio Public File from Going Online and All New Online Public File for TV, Radio, Cable and Satellite Coming June 24th, the FCC adopted a Report and Order in January 2016 extending the online public inspection file requirement to broadcast and satellite radio licensees and cable and satellite television operators.  That requirement is currently applicable only to full power and Class A television stations.  Pursuant to a phased-in schedule, commercial radio stations that have five or more employees and are located in the Top 50 Nielsen Audio markets, as well as satellite radio licensees, cable systems with 1000 or more subscribers, and DBS operators, must begin using the new system on June 24, 2016.  While commercial radio stations not included in this group as well as all noncommercial radio stations are exempt from the new online public file requirement until March 1, 2018, they are allowed to voluntarily commence use of the new system sooner.  Because these exempt stations are permitted to transition early, the demonstration should be of interest to all radio station licensees.  The demonstration will take place in the Commission Meeting Room, but can be viewed live at https://www.fcc.gov/news-events/events/2016/06/demonstration-expanded-online-public-inspection-file-interface.

Today’s Public Notice also notes that the website address where the new online public file will be hosted will be https://publicfiles.fcc.gov/.  Once a station has transitioned to the online public file, it must provide a link to the new online public inspection file from the home page of the station’s website, if it has one.  Full power and Class A television stations that already have such a link will need to update that link to reflect the new website address.

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Television broadcasters have had to comply with an online Public Inspection File requirement since 2012.  This past January, the FCC announced that it would expand the online Public File requirement to certain broadcast radio, satellite radio, cable system, and DBS operators.  Today, the FCC released a Public Notice announcing the effective date of that new obligation.  It also announced that it has established a new filing system, the Online Public Inspection File (“OPIF”), for use by these newly-covered entities, as well as by television broadcasters who until now have been using the existing online Broadcast Public Inspection File (“BPIF”).

The entities that are newly covered by the online Public File requirement will begin use of the new system in two “waves,” with larger entities going first and having a phase-in period, and smaller entities going later, but having no phase-in period.  There are lots of dates to keep track of, which include:

  • To Be Announced:  FCC Webinar Demonstrating Use of OPIF
  • June 24, 2016:  Public Inspection File documents (including Political File documents) created on or after this date must be uploaded to OPIF by the “first wave” of newly-covered entities:
    • Commercial radio stations that have five or more full-time employees and are located in the Top 50 Nielsen Audio markets
    • DBS providers
    • SDARS licensees
    • Cable systems with 1,000 or more subscribers (except with respect to the Political File, for systems with fewer than 5,000 subscribers)
  • June 24, 2016:  OPIF use by full-power and Class A television stations becomes mandatory and BPIF use is disabled
    • The FCC says it will transition television stations’ existing documents from the BPIF to the OPIF automatically by this date
  • December 24, 2016:  Public Inspection (but not Political) File documents created prior to June 24, 2016 must be uploaded to the OPIF by the “first wave” entities listed above
  • March 1, 2018:  A “second wave” of newly-covered entities must begin use of OPIF for all newly created Public Inspection and Political File documents and upload all existing Public Inspection (but not Political) File documents.  The “second wave” consists of:
    • All NCE radio stations
    • Commercial radio stations that have fewer than five full-time employees and are located in the Top 50 Nielsen Audio markets
    • Commercial radio stations located outside of the Top 50 Nielsen Audio markets, regardless of staff size
    • Cable systems with between 1,000 and 5,000 subscribers, with respect to newly-created Political File documents only

Commercial broadcast licensees must continue to retain letters and emails from the public at their main studios; the FCC will not let them be posted in the online public file.  However, as we noted last week, the FCC is circulating a Notice of Proposed Rulemaking that proposes eliminating such letters and emails from the public file entirely.

The Public Notice announces that the OPIF will include a number of technical improvements not found in the BPIF system currently used by television licensees.  According to the FCC, these improvements are meant to allow stations to better manage their online files, including implementing APIs to enable the upload of multiple documents from a third-party website and permitting a document to be placed into multiple folders.  OPIF will also feature improved .pdf conversion software to speed uploads, and allow more flexibility to delete empty folders.

While radio stations have been nervously gearing up to face the new frontier of online public files, TV stations may be a bit surprised that the online file is changing for them as well.  Particularly surprised will be those TV stations who haven’t been following these developments and who try to log into the old public file system on July 10 to file their quarterly reports.  Whether you are a TV or radio broadcaster, or a cable, DBS, or SDARS provider, now is the time to start learning how OPIF will work; it’s not a BPIF world anymore.

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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:

  • Class A TV Licensee Hit With $89,200 Fine for Dodging FCC Inspectors
  • Student-Run FM Station Faces $12,000 Fine and Shortened License Term for Public Inspection File Violations
  • Wireless Synchronized Clock Company Agrees to Pay $12,000 for Violating License Terms

FCC Throws the ($89,200) Book at Class A Licensee for Evading Main Studio Inspections

The FCC’s Enforcement Bureau imposed a fine of $89,200 against a Philadelphia Class A TV licensee for failing to (1) make its station available for inspection by FCC agents on multiple occasions, (2) maintain a fully staffed main studio, and (3) operate the station’s transmitter from its authorized location.

Section 73.1225(a) of the FCC’s Rules requires broadcast licensees to make a station “available for inspection by representatives of the FCC during the station’s business hours, or at any time it is in operation.” In addition, Section 73.1125(a) of the Rules has been interpreted by the FCC to require broadcast licensees to maintain a main studio with a “meaningful management and staff presence” during normal business hours. Finally, Section 73.1350(a) of the Rules requires a broadcast licensee to “maintain[] and operat[e] its broadcast station in a manner which complies with the technical rules . . . and in accordance with the terms of the station authorization.”

In August 2011, FCC agents attempted to inspect the station’s main studio. After observing that the main studio was inaccessible due to a locked gate, the agents called the station manager and requested access to inspect the main studio. Ten minutes later, the station manager emerged and informed the agents that he could not facilitate the inspection because he was leaving for a medical appointment, and requested that the agents return the next day. When asked about staffing, the station manager said that no one else was available to facilitate the inspection. One of the agents called the sole principal of the station and advised him that the station manager had failed to make the station available for inspection, and asked the principal to call the agent back. The principal did not return the phone call.

Over one month later, in September 2011, the agents returned to the station to inspect the main studio. The station manager appeared at the locked gate, and asked the agents to wait as he returned to the building. After waiting for ten minutes, the agents left. The agents returned that afternoon and found that the gate was still locked. An agent called the station manager, who said the gate was locked for security purposes and that the public must contact the station to obtain access. However, the agents noted that there was no contact information on the gate. An agent called the sole principal about the second failed attempt to inspect the studio, and again did not receive a return phone call.

In addition to the two failed inspection attempts, FCC agents found in March 2012 that the station’s antenna was actually 0.2 miles from the site listed in the station’s license. The agents determined that the station had operated from the unauthorized location for approximately eight years.

The FCC subsequently issued a Notice of Apparent Liability (“NAL”), proposing an $89,200 fine against the station. The base fine for failing to make a station available for inspection is $7,000. However, due to the “unacceptable” conduct of the station, the FCC used its discretion under Section 503(b)(2)(A) of the Communications Act to adjust the proposed fine upward to the maximum amount allowed under the Act: $37,500 for each of the two failed inspections. The FCC also proposed an upward adjustment of the base fine for operating the station from an unauthorized location, from $4,000 to $7,200. In addition, the FCC proposed a $7,000 fine (the base fine amount) for the violation of the main studio rule, for a total fine of $89,200.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2016, reflecting information for the months of January, February, and March 2016.

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 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.

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