Articles Posted in Children & Media

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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.

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:

  • TV Station Agrees to $17,500 Consent Decree for Failure to Properly Identify Children’s Programming and Other Violations
  • FCC Proposes $22,000 Fine Against Store for Operating Cell Phone Jammer
  • Marketing of Unauthorized Radio Frequency Devices Leads to $30,000 Civil Penalty

Failure to Properly Identify Children’s Programming and Related Violations Lead to $17,500 Settlement with FCC

The FCC entered into a Consent Decree with a New Jersey commercial TV station to resolve an investigation into whether the station failed to properly identify children’s programming on-air, failed to provide publishers of program guides with necessary children’s programming information, failed to report these violations in its license renewal application, and failed to provide complete and accurate information in its Children’s Television Programming Reports.

The Children’s Television Act of 1990 introduced an obligation for television broadcast stations to offer programming that meets the educational and informational needs of children, known as “Core Programming.” Section 73.671(c)(5) of the FCC’s Rules expands on this obligation by requiring that broadcasters identify Core Programming by displaying the “E/I” symbol on the television screen throughout the program. Section 73.673 of the Rules requires a commercial broadcast television station to provide the publishers of program guides with “information identifying programming specifically designed to educate and inform children,” including the age group of the intended audience. Finally, Section 73.3526 of the FCC’s Rules requires each commercial broadcast station to prepare and place in its public inspection files a Children’s Television Programming Report for each calendar quarter showing, among other things, the efforts made during that three-month period to serve the educational and informational needs of children.

The station’s license renewal application was filed in January 2015. In reviewing the application, the FCC looked at the station’s previously filed Children’s Television Programming Reports and learned that the station’s second quarter 2010 report indicated that certain Core Programming failed to display the “E/I” symbol. The FCC subsequently sent an informal inquiry to the station requesting an explanation, which eventually led to the station filing an amended license renewal application.

In its amended application, the station conceded that it: (1) failed to display the “E/I” symbol during certain Core Programming aired on its multicast streams between the fourth quarter of 2009 and the second quarter of 2015; (2) failed to provide the publishers of program guides the necessary children’s programming information between the second quarter of 2007 and the third quarter of 2016; and (3) failed to provide complete and accurate Children’s Television Programming Reports between the second quarter of 2007 and the fourth quarter of 2016. The amended application also revealed that the station failed to disclose these violations in its 2015 license renewal application.

To resolve the investigation of these violations, the station subsequently entered into a Consent Decree with the FCC under which the station: (1) admitted liability for the violations; (2) agreed to make a $17,500 settlement payment; and (3) agreed to implement a three-year compliance plan to ensure future compliance. The FCC stated that it would grant the station’s license renewal application conditioned upon the station “fully and timely satisfying its obligation to make the Settlement payment….”

Texas Store Faces $22,000 Fine for Operating Cell Phone Jammer

The FCC proposed a $22,000 fine against a Texas store for operating a cell phone jammer.

Section 301 of the Communications Act bans the use or operation of “any apparatus for the transmission of energy or communications or signals by radio” without a license. Section 302(b) of the Act states that “[n]o person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated pursuant to this section.” And Section 333 of the Act provides that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this Act or operated by the United States Government.” Continue reading →

Published on:

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 →

Published on:

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:

  • Michigan Class A TV Station Agrees to Pay $45,000 for Numerous Children’s Programming and Public Inspection File Violations
  • New York TV Station Agrees to $10,000 Consent Decree to End FCC Investigation into Indecency Allegations
  • California Radio Licensee Agrees to $8,000 Consent Decree for Unauthorized Transfer of Control

Michigan Class A TV Station Acknowledges Children’s Programming and Public Inspection File Problems

The FCC entered into a Consent Decree with a Class A TV station in Michigan to resolve an investigation into violations of the Children’s Television Act (“CTA”) and the FCC’s public inspection file rule.

The CTA, as implemented by Section 73.671 of the FCC’s Rules, requires full power TV stations to provide sufficient programming designed to serve the educational and informational needs of children, known as “Core Programming”, and Section 73.6026 extends this requirement to Class A stations. The FCC’s license renewal application processing guidelines direct Media Bureau staff to approve the CTA portion of any license renewal application where the licensee shows that it has aired an average of 3 hours per week of Core Programming per program stream. Staff can also approve the CTA portion of a license renewal application where the licensee demonstrates that it has aired a package of different types of educational and informational programming that, even if less than 3 hours of Core Programming per week, shows a level of commitment to educating and informing children equivalent to airing 3 hours per week of Core Programming. Applications that do not satisfy the processing guidelines are referred to the full Commission, where the licensee will have a chance to demonstrate its compliance with the CTA.

Section 73.3526 of the FCC’s Rules requires commercial broadcasters to maintain public inspection files containing specific types of information related to station operations, and subsection 73.3526(b)(2) requires TV and non-exempt radio stations to upload most of that information to the FCC-hosted online public inspection file. For example, subsection 73.3526(e)(11) requires TV stations to place in their public inspection file (i) Quarterly Issues/Programs Lists describing the “programs that have provided the station’s most significant treatment of community issues during the preceding three month period” and (ii) certifications of compliance with the commercial limits on children’s programming. In addition, subsection 73.3526(e)(17) requires Class A stations to place in their public files documentation demonstrating compliance with Class A eligibility requirements.

In May 2013, the station filed its license renewal application. Upon review of the station’s public file, the FCC found that the station had failed to timely file Children’s TV Programming Reports for 35 quarters, and failed to place in its public file numerous required documents, such as Issues/Programs Lists, Commercial Limit Certifications, and Class A Eligibility Certifications. In May 2016, upon request of the FCC, the station amended its renewal application to acknowledge and describe the violations. The station made additional clarifications to the application in November 2016.

The Media Bureau’s audit of the station’s children’s programming revealed that the station failed to meet the three hour Core Programming processing guideline for ten quarters, for an aggregate shortfall of 110 hours, with quarterly deficiencies ranging from one hour to 22 hours. As a result, the station’s application was referred to the full Commission for consideration.

The station subsequently entered into a Consent Decree with the FCC to resolve the investigation into public file and children’s programming violations. As part of the Consent Decree, the station admitted liability, agreed to make a $45,000 settlement payment to the government, and agreed to implement a compliance plan. In turn, the FCC agreed to grant the station’s license renewal application for a short-term period of two years instead of the regular eight-year term.

Under the compliance plan, the station must, among other things, designate a compliance officer responsible for compliance with the FCC’s Rules, air at least four hours of Core Programming per week (as averaged over a six-month period), provide training to staff on compliance with the FCC’s Rules, and work with outside legal counsel to obtain guidance on FCC compliance issues. The compliance plan will stay in effect until final FCC action is taken on the station’s next license renewal application.

New York TV Station Agrees to $10,000 Consent Decree to End FCC Investigation into Indecency Allegations

The FCC entered into a Consent Decree with a New York TV station to resolve an investigation into whether the station aired indecent programming.

Section 73.3999 of the FCC’s Rules restricts the broadcast of indecent material between 6:00 a.m. and 10:00 p.m. In addition, Section 73.1217 (the “broadcast hoax rule”) forbids the broadcast of “false information concerning a crime or catastrophe if: (a) The [station] knows the information is false; (b) It is foreseeable that broadcast of the information will cause substantial public harm; and (3) Broadcast of the information does in fact cause substantial public harm.”

Continue reading →

Published on:

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 →

Published on:

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.

Published on:

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by October 10, 2016, reflecting programming aired during the months of July, August, and September 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 October 10, 2016, covering programming aired during the months of July, August, and September 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.

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

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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:

  • FCC Cancels $3,000 Proposed Fine After Discovering TV Licensee Overwrote Children’s Programming Reports
  • Educational FM Licensee Agrees to Pay Reduced Fine of $2,250 for Multiple Violations
  • Failure to Understand FCC’s Filing System Nets $1,500 Fine

Licensee’s Discovery Leads FCC to Cancel $3,000 Proposed Fine

The FCC cancelled a $3,000 proposed fine against a New York TV station after the licensee discovered that it inadvertently overwrote three Children’s Television Programming Reports. The FCC had previously proposed to fine the licensee for the untimely filing of the three Reports.

Section 73.3256 of the FCC’s Rules requires each commercial broadcast station to maintain a public inspection file containing specific information related to station operations. Subsection 73.3526(e)(11)(iii) of the rule requires licensees to prepare and place in their public inspection files a Children’s Television Programming Report for each calendar quarter showing, among other things, the efforts made during that three-month period to serve the educational and informational needs of children.

On January 30, 2015, the licensee filed a license renewal application in which it admitted that it failed to file in a timely manner Children’s Television Programming Reports for three quarters between 2012 and 2013. The licensee argued that it was unable to timely upload the Reports because of problems with the FCC’s website and computer servers.

The FCC rejected the licensee’s claim that FCC server problems prevented timely filing, and issued a Notice of Apparent Liability for Forfeiture (“NAL”) proposing a $3,000 fine for the late filings. The FCC explained that it was unaware of any server problems that would have prevented timely filing during the quarters at issue, and the licensee failed to provide any evidence to support its claim.

In its response to the NAL, the licensee asserted that after looking into the matter further, it found that it had in fact timely filed the Children’s Television Programming Reports. The licensee included with its response a declaration signed by the employee in charge of filing such reports. The employee stated that the three reports in question were timely filed, but inadvertently overwritten later. Upon discovering that the reports had been overwritten, the station refiled the reports, causing them to appear as though they were filed late. The licensee noted that it had since implemented safeguards to prevent reports from being overwritten in the future.

Based on the new information, the FCC was persuaded that the reports had been timely filed, and therefore rescinded the NAL and cancelled the proposed $3,000 fine.

FCC Reduces $18,000 Fine to $2,250 in Consent Decree With Educational FM Station

The FCC entered a Consent Decree with a North Carolina noncommercial educational (“NCE”) FM licensee, terminating the investigation of the licensee’s multiple alleged violations. The alleged violations included: (1) failure to notify the FCC that the station had gone silent for ten or more days and failure to seek special temporary authority (“STA”) when four of those periods of silence lasted more than 30 days; (2) failure to retain all required documentation in the station’s public inspection file; and (3) failure to file biennial ownership reports. Under the terms of the Consent Decree, the licensee agreed to pay a $2,250 fine and abide by a compliance plan.

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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.

Published on:

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:

  • FCC Enforcement Bureau and Long-Distance Provider Agree to $100,000 Settlement for Violations of FCC’s Rural Call Completion Rules
  • FCC Cancels $3,000 Fine Against TV Licensee for Untimely Kidvid Filings, Upholds $10,000 Fine for Missing Issues/Programs Lists
  • FM Construction Permit Auction Winner Fined $3,000 For Late Application

Dropped Call of the Wild: Investigation of Rural Call Problems Ends With $100,000 Consent Decree

The FCC’s Enforcement Bureau entered into a Consent Decree with a Utah-based long distance carrier to resolve an investigation into whether the carrier failed to sufficiently respond to a rural customer’s complaints of poor call quality and failed to cooperate with the FCC’s resulting investigation.

The FCC has adopted several “Rural Call Completion Rules” in recent years to address poor call quality and call completion problems in rural and other high-cost areas. The Commission clarified in a 2012 declaratory ruling that a carrier violates Section 201 of the Communications Act of 1934 when it knows or should know that calls are not being completed to certain areas and fails to correct the problem or fails to ensure that its intermediate providers correct the problem.

The FCC has also determined that practices that allow lower quality service to rural or traditionally high-cost areas to persist constitute unjust or unreasonable discrimination (based on locality) in violation of Section 202 of the Communications Act. Further, the FCC has interpreted Section 208 of the Act and Section 1.717 of the Commission’s Rules to require that a carrier satisfy (or adequately explain why it cannot satisfy) any informal rural call completion complaints.

In December 2014, a consumer filed an informal complaint with the FCC detailing ongoing problems with receiving work calls. The calls were sent over the carrier’s long distance network to the consumer’s home office, which is served by an intermediate rural local exchange carrier. The carrier investigated the matter and explained in its response to the informal complaint that (1) the consumer had not responded to a follow-up email about the complaint, and (2) the consumer was not its customer.

The carrier took action in March 2015—after the FCC reminded the carrier of its obligations to address rural call quality problems—but the problem recurred. The consumer subsequently filed additional complaints alleging continued call problems in May and June of 2015. Finding that the carrier failed to sufficiently address and resolve the call quality problems with its intermediate provider until late July 2015, the FCC issued a Letter of Inquiry to the carrier and opened an investigation.

To settle the matter, the carrier entered into a Consent Decree with the FCC, wherein the carrier: (1) admitted that it failed to ensure call quality from its intermediate providers and that it did not cooperate with the FCC’s investigation; (2) agreed to pay a $100,000 civil penalty; and (3) agreed to implement a compliance plan going forward. As part of the plan, the carrier must establish operating procedures and training on the Rural Call Completion Rules, and file regular compliance reports with the FCC during the three-year compliance period.

Island Jam: Guam TV Station Successfully Appeals Proposed Fine for Late Kidvid Reports, But Remains on the Hook for Issues/Programs List Violations

The FCC’s Media Bureau cancelled a proposed $3,000 fine against a Guam TV licensee for failing to timely file five Children’s Television Programming Reports, but upheld a $10,000 fine against the licensee for failing to place fifteen Quarterly Issues/Programs Lists in the station’s public inspection file. The FCC also admonished the licensee for its failure to upload copies of its Quarterly Issues/Programs Lists that were in the station’s local file prior to August 2, 2012.

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