Articles Posted in Programming Regulations

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Earlier today, the FCC released a Notice of Apparent Liability for Forfeiture against CBS for false EAS alerting, which is FCC-speak for “CBS, tell us why we shouldn’t fine you $272,000 for airing a fake EAS alert tone.”  We’ve written on a number of occasions about FCC fines for airing false EAS alert tones (see, for example, here, here and here).  We’ve also written about false EAS alerts that were unintentionally aired, with my personal favorite in that category being EAS Alerts and the Zombie Apocalypse Make Skynet a Reality.  However, fines for airing false EAS tones have become sufficiently common in recent years that we have largely stopped writing about them.

Today’s decision was a bit different, however.  Section 11.45 of the FCC’s Rules provides that “No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS….” False EAS alerts have typically popped up in commercials as a way of getting jaded viewers’ and listeners’ attention, which makes them challenging to successfully defend.  After all, the advertiser in that scenario is typically counting on the alert tone to draw attention to the ad for reasons entirely unconnected to public safety.  While the advertiser might claim that this prohibition violates its First Amendment rights, that’s not likely a winning argument since commercial speech receives reduced First Amendment protection (which is why, for example, the Federal Trade Commission can prohibit false advertising).

But what happens when the use of the alert tone is not in an ad?  In the case of CBS, the FCC succinctly describes the offending content (which you can also view here) as:

CBS admits that it transmitted the program Young Sheldon on April 12, 2018, which included a “tornado warning sound effect integral to a story line about a family’s visceral reaction to a life‐threatening emergency and how surviving a tornado changed family relationships.”

While the FCC acknowledged that CBS made efforts to ensure the tone was a simulation that did not trigger EAS equipment, the FCC noted that Section 11.45 still prohibits simulations of an EAS tone.  Among other defenses CBS raised in response to the FCC’s assertion that the broadcast violated Section 11.45, it argued that no viewer would be so confused as to think it was a real emergency, and that the broadcast is protected by the First Amendment to boot.  That’s where this case gets interesting.

The FCC is effectively claiming that CBS falsely yelled “fire” in a crowded theater, which is the well-established exception to First Amendment protections.  CBS, on the other hand, is countering that it only yelled “boogeyman”, and that any reasonable viewer isn’t going to panic, because the public knows the difference between real and fictional things.

For students of the First Amendment, the part that first catches the eye is the absolutism of the Commission’s decision.  Only very rarely does the First Amendment permit blanket bans on particular speech in all circumstances.  While you may be prosecuted for yelling “fire” in a crowded theater, you can, for example, say it if you are in command of a firing squad.

The FCC’s treatment of the EAS tone as sacrosanct admittedly makes it difficult for a drama to realistically depict an emergency and people’s reaction to it.  Whenever a particular type of content is forbidden in all circumstances except where the government specifically authorizes it, First Amendment issues inevitably arise.

In today’s decision, the FCC presented three reasons to justify the blanket prohibition.  These would be to “(1) prevent consumer confusion at the moment of a broadcast of the Tones, (2) prevent the inadvertent technical triggering of additional EAS warnings, and (3) prevent the accretion of non-emergency uses of the Tones that will dull consumers’ attentiveness to the public-safety import of the sounds.”  While the FCC had to concede that CBS’s efforts to modify the tone had been successful in preventing the triggering of additional EAS warnings, it was not convinced that consumer confusion could not have occurred, and was certainly concerned about the public getting alert fatigue.

But it’s not really the fact that the FCC rejected CBS’s arguments that is of interest to broadcasters, but how it was done.  First, the Commission noted the now archaic (but admittedly not yet overruled) court precedent that content on broadcast stations receives a lower level of First Amendment protection than all other media.  Whether that still makes sense in the modern era, the FCC’s argument creates the very real possibility that false EAS alert tones could be forbidden on broadcast TV, where the legal standard of First Amendment review is “intermediate scrutiny”, but be constitutionally protected on cable TV, where restrictions on content must meet the far tighter “strict scrutiny” standard.  Since EAS alerts are also transmitted by cable systems, however, the risk of public confusion and alert fatigue is the same on cable as it is on broadcast TV.  That raises the question of how strong the government’s interest in prohibiting false EAS alert tone simulations on broadcast TV can be if those same false alert tones might be constitutionally protected on cable TV programs.

Seeing that trap, the FCC tried to avoid it by arguing that even though First Amendment protections are reduced for CBS as a broadcaster, it doesn’t matter, because the government’s interest in preventing public confusion and alert fatigue is so compelling as to survive strict scrutiny under the First Amendment, allowing the rule to also be enforced against cable TV providers.

Public safety can certainly be a compelling government interest.  However, to survive strict scrutiny, a regulation must also be “narrowly tailored” to further the government’s compelling interest, and be the “least restrictive means” for doing so.  A blanket government ban on using even a simulation of the EAS tone would probably have a tough time surviving strict scrutiny under the First Amendment, but if the FCC could argue to a court that there is something uniquely valuable about the public hearing the tone only when there is an actual emergency, a court might well agree.

But that’s where the FCC may have undercut its own argument.  In July 2018, the FCC modified its rules to allow the airing of “the EAS Attention Signal and a simulation of the EAS codes as provided by FEMA” where they are used in EAS Public Service Announcements provided by “federal, state, and local government entities or non-governmental organizations, to raise public awareness about emergency alerting.”  To avoid confusion, such messages must state that the tone is being presented in the context of a PSA for the purpose of educating the public about EAS.

It would be challenging for the FCC to successfully argue in court that a single use of a simulated EAS tone creates listener fatigue when it has just authorized unlimited use of the actual tone in PSAs.  Similarly, the FCC weakened its argument that any non-emergency use of the tone inevitably leads to public confusion, when, by requiring the PSAs to contain a disclaimer letting the public know it is not an emergency, the FCC concedes that it is possible to present the tone (or a simulation thereof) in a manner that does not confuse the public.

That would seem to make it a a finding of fact as to whether a particular use of a simulated tone is likely to cause public confusion versus public education, and to be candid, a dramatic representation of a family reacting to an EAS tone probably conveys the importance of the tone far better than a PSA that most viewers will fast-forward past (or miss while getting a sandwich).  Admittedly, that is a slippery slope, but First Amendment analysis perpetually lives on that slope.

Regardless of how a court might balance these competing interests, the real irony of the whole affair is that Young Sheldon is set in Texas circa 1989-90.  The Emergency Alert System was not activated until 1997, meaning that a realistic portrayal of a tornado watch in 1990 would have featured the much different twin-frequency monotone Attention Signal of the earlier Emergency Broadcast System.  What’s the irony, you say?  The FCC’s restrictions on using the EBS tone outside of an emergency were eliminated twenty years ago.  Young Sheldon could have been both historically accurate and FCC-compliant had it just used the EBS tone instead.

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

Continue reading →

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by January 10, 2019, reflecting programming aired during the months of October, November, and December 2018.

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 FCC’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 (i) children’s educational/informational programming, or (ii) other age-appropriate programming appearing on the same channel.  Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis. Continue reading →

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by July 10, 2018, reflecting programming aired during the months of April, May, and June 2018.

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 FCC’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 (i) children’s educational/informational programming, or (ii) 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, 2018, covering programming aired during the months of April, May, and June 2018.

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 personnel 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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CommLawCenter readers may recall that the FCC adopted a rule in 2013 requiring broadcasters to present aurally on a secondary audio stream (“SAS”) all emergency information provided visually during programming other than during regularly-scheduled newscasts and newscasts that interrupt regular programming.

This “Audible Crawl Rule” went into effect on May 26, 2015, with a few exceptions.  Following a request from the National Association of Broadcasters, the FCC (1) temporarily waived the requirement to aurally convey information regarding school closings via the SAS pending further consideration in a Second Further Notice of Proposed Rulemaking and (2) extended the deadline to begin aurally describing inherently visual graphics, like Doppler Radar maps.  Consideration of the school closings requirement continues, and the FCC has twice extended the compliance deadline for inherently visual graphics.

In today’s Order, the FCC acknowledged that its aspirational reach continues to exceed the grasp of current technology, granting a joint petition from the American Council of the Blind, the American Foundation for the Blind, and the NAB for a five-year extension of the current waiver until May 26, 2023.  To monitor progress on achieving the desired visual-to-aural capabilities, the FCC also required that the NAB file a report with the Commission by November 25, 2020, the midpoint of the five-year extension period.  The report must “detail the extent to which broadcasters have made progress in finding accessible solutions or alternatives to providing critical emergency details generally delivered in a graphic format, as well as the extent to which this waiver continues to be necessary.”

The Media Bureau first granted an 18-month waiver of this requirement in May 2015, in response to an NAB request for a six-month waiver of the compliance deadline.  In 2016, the same coalition of organizations seeking this latest extension requested an additional 18 months to implement an automated approach for compliance with this part of the rule.  That extension would have expired tomorrow, May 26, 2018.

The FCC enacted the Audible Crawl Rule pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010, which requires broadcasters to make emergency information available to blind or visually impaired individuals.  Originally adopted in April 2013, Section 79.2(b)(2)(ii) of the FCC’s Rules requires all visual emergency information presented outside of newscasts to be made available via SAS.  The rule applies to visual content that is textual (such as on-screen crawls) and non-textual (graphic displays).  According to the FCC, the aural description of visual but non-textual information must be intelligible and must “accurately and effectively convey the critical details regarding the emergency and how to respond to the emergency.”  Continue reading →

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by April 10, 2018, reflecting programming aired during the months of January, February, and March 2018.

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 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 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 FCC’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 (i) children’s educational/informational programming, or (ii) 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 public inspection file by the tenth day of the calendar quarter following the quarter during which the commercials were aired.  Consequently, this proof of compliance should be placed in your public inspection file by April 10, 2018, covering programming aired during the months of January, February, and March 2018. 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 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 →

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 →

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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:

  • 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.”

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It took a while to get to this point, but at the first public meeting of the Pai FCC, the Commission voted today to eliminate the requirement that stations maintain “Letters and Emails from the Public” in their public inspection files. As discussed below, that decision will have differing impacts on TV and radio stations, and even among radio stations.

When the FCC charged ahead to move television public inspection files online in 2012, there didn’t seem to be any upside for broadcasters, who objected loudly. Those objections were primarily based upon the fact that the FCC had managed to find a way to expend even more of a broadcaster’s resources on the rarely-read file, requiring that it now also be uploaded to an online FCC database. Uploading a public file is no small task, as an FCC review of TV public files in Baltimore in 2012 revealed that some contained more than 8,000 pages. In response to those objections, the FCC announced when it adopted the change that it would automatically upload applications, kidvid reports, and other documents it had access to, reducing the number of documents stations would need to upload themselves.

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