|
Broadcast Television Station Reminder: FCC
Form 398 Children’s Programming Second Quarter Reports
Due July 10
By DWT's Broadcast Group
[June 2007]
By July 10, 2007, all commercial full-power
television stations and Class A LPTV stations must prepare
and file an FCC Form 398 Children’s
Programming Report for the Second Quarter of 2007 with
the Federal Communications Commission (FCC). By this date, stations
must also prepare and place in their public inspection files
documentation sufficient to demonstrate their compliance with
the limitations on the amount of commercial matter during children’s
programming. Please note, as discussed further below, the FCC
has recently revised its FCC Form 398 to solicit information
regarding full-power stations’ digital programming streams,
and stations should be careful to ensure that their digital
programming is compliant with the Commission’s programming
rules.
Children’s Programming Summary
Under the Commission’s Rules, commercial full-power television
stations and Class A television LPTV stations are required to
air programming that is responsive to the educational and informational
needs of children aged 16 and younger. Under the Commission’s
current license renewal guidelines, stations are generally required
to air an average of at least three (3.0) hours of core children’s
programming per week during the calendar quarter. In general,
core children’s television programming is defined as programming
that is designed to meet the educational and informational needs
of children 16 years or younger as one of its significant purposes,
which is at least 30 minutes in length, which is identified
throughout the program with the “E/I” symbol, and
which is aired weekly at a regularly scheduled time between
the hours of 7:00 a.m. and 10:00 p.m. Furthermore, the programming
must be identified at the time of airing and to program guide
publishers as being “core programming” designed
for a specific age range of children.
With regard to digital television, stations broadcasting in
DTV are subject to the existing 3.0 hours per week core programming
guidelines for their main digital program stream. For stations
with paired analog and digital facilities, this requirement
is usually met automatically if the station is simulcasting
the station’s analog signal in digital, and thus, simulcasting
the same three hours of core children’s programming aired
on the analog signal. For DTV stations that choose to multicast
additional program streams, however, the Commission’s
Rules require an additional amount of core programming in proportion
to the amount of additional free programming offered on the
multicast channels. Thus, under the Commission’s Rules,
the amount of children’s programming required for DTV
stations increases in proportion to the additional hours of
free programming offered on the multicast channels, up to an
additional 3.0 hours per week for each 24-hour free multicast
stream. Specifically, for every 28 hours, or portion thereof,
of free video programming provided by a DTV station on an additional
digital stream, the station is required to provide an additional
0.5 hours of children’s programming per week, up to a
maximum of 3.0 hours per week for a station providing a programming
stream 24 hours a day, seven days a week. For each additional
free digital programming stream, the same analysis would apply.
The FCC’s rules also contain limitations on the extent
to which a station can simply repeat children’s programming
from one multicast channel to another and still claim credit
for the program. Under the Commission’s rules, at least
50 percent of the core programming counted toward meeting the
additional programming guideline cannot consist of program episodes
that have already aired within the previous seven days on either
the station’s main program stream or on another of the
station’s free digital program streams. The FCC Form 398
has been updated to require licensees to certify as to their
compliance with the limit on repeats under this guideline.
Please note that during the digital transition, any core children’s
program that airs on both the analog and the main digital program
stream will not be considered a repeat of the same program.
Also exempt is any program stream that merely time shifts the
entire programming line-up to another program stream. However,
to the extent that a station broadcasts additional digital programming
streams beyond the main channel or beyond the simple time delay
of the simulcast signal, the Commission’s limitations
on repeating children’s programming will apply.
The quarterly children’s programming report and commercial
limitations certification, described further below, are critical
to show a station’s compliance with these important programming
rules. Stations have often been fined at renewal time for insufficient
documentation to support their compliance with the children’s
rules or for missing documentation for any quarters during the
license term. Accordingly, stations should carefully prepare
and maintain all quarterly FCC Form 398s and commercial limitation
certifications consistent with the Commission’s rules.
FCC Form 398
To confirm that stations are meeting their children’s
programming requirements, within 10 days after the end of each
calendar quarter, stations must prepare and file an FCC Form
398 Children’s Programming Report with the FCC. By that
day, stations must also place this report in their public inspection
file. For the Second Quarter of 2007, the Form 398 must be filed
with the FCC and placed in the station’s public inspection
file by July 10, 2007. The Form 398 must be prepared and filed
electronically on the Commission’s
website. Recently, the FCC revised its Form 398 to reflect
the extension of the children's programming rules to digital
television. Accordingly, the Form 398 now solicits information
on the children's programming provided on each of the station's
digital program streams, as well as on the station’s analog
channel. For stations that multicast multiple programming streams,
the quarterly report can thus require additional time to prepare,
so stations should plan accordingly.
Stations are also reminded that periodically they should be
publicizing the existence and location of these quarterly children's
programming reports. While there is no prescribed language or
manner for informing the community about these reports, we would
recommend airing a commercial spot at least a couple of times
a month announcing that the station prepares and files an FCC
Form 398 with the FCC on a quarterly basis that reports on the
station’s children's programming efforts during the previous
calendar quarter. These announcements should also inform viewers
that the reports are available for review on the FCC’s
web site or at the station’s main studio. Posting the
report, or a link to the FCC’s web site on the station’s
own web site is also a good way to publicize the existence and
location of the Children’s reports.
In addition, stations are reminded that the FCC’s rules
require broadcasters to provide on-air identification of core
programs that are specifically designed to educate and inform
children. Thus, at the beginning of each core children's program,
stations should announce that the upcoming program satisfies
the Commission's core children's programming requirements. Furthermore,
core children’s programming must also contain the E/I
symbol or “bug” superimposed on the program to identify
the program as meeting the educational and informational needs
of children. The revised Form 398 now includes a question requiring
certification that the symbol was included during each particular
core program.
Commercial Limits
In addition to broadcasting programming responsive to the educational
and informational needs of children, the Commission’s
rules limit the amount of commercial material that can be aired
during programming aimed at children. Specifically, the rules
state that “no commercial television broadcast station
licensee shall air more than 10.5 minutes of commercial matter
per hour during children's programming on weekends, or more
than 12 minutes of commercial matter per hour on weekdays.”
In order to demonstrate compliance with this rule, stations
must prepare and place proof of compliance with the commercial
limitations in the public inspection file by the tenth day of
the month following the end of the calendar quarter. So
for the second quarter of 2007, proof of compliance with the
children’s television commercial limitations must be placed
in stations’ public inspection files by July 10, 2007.
Documentation confirming that the station has met the requirement
can be kept in several different forms. Stations may keep program
logs demonstrating compliance with the commercial limitations,
however, if the logs are kept to satisfy the documentation requirement
they must be placed in the public inspection file. Stations
may also keep tapes sufficient to demonstrate compliance, and
must make the tapes available for review upon request by a member
of the public. Alternatively, stations may maintain lists of
the number of commercial minutes per hour aired during children’s
programs, including a detailed listing of any overages. Such
lists should be reviewed routinely by the station manager or
program manager to ensure accuracy. Finally, the station (or
the network or program syndicator) may certify that as a standard
practice, the station, network, or syndicator formats and airs
identified children’s programs so as to comply with the
limit on commercials in children’s programming. The station,
network, or syndicator should provide a detailed list of any
overage, and the station manager or program manager should routinely
review the certification and any overages to ensure accuracy.
If the station chooses to document its compliance with the commercial
limits by means of a list of programs and overages, or by using
certifications, such lists or certifications must be prepared,
reviewed, and placed in the station’s public inspection
file by the 10th of the month following the end of each quarter.
Stations are reminded that they must identify the programs
that are subject to the rule and any overages that have occurred.
In addition, it is noted that while children’s programming
can be aimed at serving the educational and information needs
of children up to 16 years of age, the commercial limits apply
only to programs originally produced and broadcast primarily
for an audience of children aged 12 and under.
Noncommercial Stations
Given that they do not air commercials, noncommercial stations
are not subject to the commercial limitation rules, and thus
do not have to maintain commercial limits documentation in their
public inspection files. Similarly, noncommercial stations are
exempt from the requirement to prepare and file Form 398 reports
with the FCC. That being said, however, noncommercial stations
must still air programming responsive to the educational and
informational needs of children, and must maintain evidence
of their compliance with this programming requirement should
the station face a challenge at renewal time.
For more information about the FCC’s children’s
television programming rules, or for assistance in preparing
and filing your Form 398, please contact any of the lawyers
in the Davis Wright Tremaine LLP Broadcast Practice Area.
For more information, please contact:
This advisory is a publication of the Broadcast Group of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent developments in the broadcasting industry. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.
Copyright © 2007, Davis Wright
Tremaine LLP.
return to
broadcast group main page
|
