Broadcast Advisory Bulletin
Broadcast Television Station Reminder:
FCC Form 398 Children’s Programming Third Quarter Reports
Due October 10
By DWT's Broadcast Group
[September 2007]
By October 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 Third 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 Third
Quarter of 2007, the Form 398 must be filed with the FCC and placed
in the station’s public inspection file by October 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 third quarter of 2007, proof of compliance with
the children’s television commercial limitations must be placed
in stations’ public inspection files by October 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. Attorney
Advertising. Prior results do not guarantee a similar outcome. Thank
you.
Copyright © 2007, Davis Wright Tremaine
LLP.
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