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FCC Adopts Revised Children’s Programming Rules
By David D. Oxenford and Brendan Holland
[October 2006]
On Sept. 29, 2006, the Federal Communications Commission (FCC) released its Second Order on Reconsideration and Second Report and Order (“Second Order”) on the issue of Children’s Television Obligations of Digital Television Broadcasters. This Second Order addresses a few open issues from the FCC's earlier rulemaking on children’s programming that culminated with new rules in the fall of 2004. At the end of 2005, just before many of the new provisions were to go into effect, a joint coalition of television broadcasters, programmers, and public interest groups petitioned the FCC seeking to modify some aspects of the new rules. The FCC put the joint coalition’s proposal out for comment earlier this year and has now adopted a few revisions to its children’s television programming rules, which are discussed further below. These rules will go into effect in approximately 60 days. The specific date will be a function of when the Second Order is published in the Federal Register, which has not occurred as of this writing.
More Program Streams Equals More Children’s Programming
First and foremost, the Second Order affirms the imposition of additional children’s programming requirements on DTV stations that multicast multiple streams of programming. All digital broadcasters are subject to the existing 3.0 hours per week core programming guidelines for their main program stream. In addition, for DTV stations that choose to multicast additional program streams, the amount of children’s programming required 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 programming 24 hours a day, seven days a week. Thus, digital stations providing between 29 and 56 hours of additional free programming per week must air 1.0 hour per week of core programming (in addition to the 3 hours per week on the main program stream.) Digital stations providing between 57 and 84 hours of additional programming per week must air 1.5 hours of core programming per week, and so on, up to a maximum of 3.0 additional hours of children’s programming per week for a program stream broadcasting 24/7. Of course, these guidelines are the minimum amount of children’s programming necessary to obtain a staff level license renewal. Stations are free to air more children’s programming than this target benchmark.
Stations are permitted to consolidate the additional children’s programming necessary to meet this multicasting obligation onto one digital stream, so long as that digital stream is carried on multi-channel video programming systems (i.e. cable and satellite) in the same manner as the main programming stream. This gives stations the flexibility to move the additional required children’s programming to another channel (say to avoid cluttering up the all news and weather digital channel), but only so long as the channel to which the programming is moved is afforded the same carriage as the main stream. This flexibility to consolidate programming applies only to digital streams and does not change the requirement that the analog channel carry a minimum of 3.0 hours of core programming per week.
Further, the Second Order imposes 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 Quarterly Children’s Programming Report will be updated to allow licensees to certify as to their compliance with the limit on repeats under the revised guideline. While stations will not be required to identify each program episode on the Form 398, the FCC will require that licensees retain records sufficient to document the accuracy of their certification, including records of actual program episodes aired. Further, this documentation must be made available to the public upon request, and the children’s programming liaison, whose name and phone number must be included on FCC Form 398, should be able to provide documentation to substantiate the certification if requested.
Please note that during the digital transition, core children’s programs that air on both the analog and the main digital program stream will not be considered repeats (i.e. if the analog programming is being simulcast on the main digital channel, that identical programming will not be considered a repeat). Also exempted from the requirement 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.
No Formal Cap on the Number of Preemptions
Second, the Second Order has eliminated the percentage/numerical limit on the number of preemptions permitted before a program would no longer be considered core programming. Under the rules as originally formulated, if a program was preempted too many times, the entire program would not have counted as core programming. Specifically, if the program was preempted 10 percent or more of the time during the quarter, the program would not have counted. The Commission has now repealed the 10 percent cap instituted by the initial Order. So despite having imposed a cap on the number of permitted preemptions in its initial Order, the Commission has been convinced that such an approach is a bad idea. Although preempting a show several times during a quarter will not automatically disqualify that program from counting as a core program, stations should continue to be vigilant to make sure that the preemptions do not drop the station’s average for the quarter below the 3.0 hour benchmark. In addition, the Commission will return to a case-by-case basis, pursuant to which networks may informally seek approval of the planned preemptions (for particular sporting events or the like). Under that policy, so long as the program is moved to the designated substitute time slot, the airing of the program will not count as a preemption. Again, stations must still ensure that they air an average of 3.0 hours of programming per week, regardless of the number of preemptions.
Limits on the Display of Internet Website Addresses
Third, the initial Order contained specific limitations on the display of Internet website addresses during children’s programming, which the Second Order has clarified slightly. With respect to programs directed to children ages 12 and under, the FCC’s Rules will permit the display of Internet website addresses during program material only if the following four-prong test is met:
- The website offers a substantial amount of bona fide program-related or other noncommercial content;
- The website is not primarily intended for commercial purposes, including either eCommerce or advertising;
- The website’s home page and other menu pages are clearly labeled to distinguish the noncommercial from the commercial sections; and
- The page of the website to which viewers are directed by the website address is not used for eCommerce, advertising, or other commercial purposes (e.g., contains no links labeled “store” and no links to another page with commercial material).
To clarify, under prong 4, no advertising, links to a store, or other commercial matter may appear on the first website to which viewers are directed, but rather links to a store or to commercial matter may only appear on a second level page if the website address is to qualify under the test above. This limitation on the display of website addresses applies to analog and digital broadcast stations, as well as cable operators.
The Second Order does not change this restriction, but rather provides two additional clarifications: (1) the rule applies only when Internet addresses are displayed during program material or during promotional material not counted as commercial time; and (2) that if an Internet address for a website that does not meet the four-prong test is displayed during a promotion, in addition to counting against the commercial time limits, the promotion will be clearly separated from programming material.
In addition, the Commission clarified that certain PSAs, which are not commercial matter under the FCC’s rules, are exempt from the website display rule. Thus, PSAs aired on behalf of independent non-profit or government organizations, or media companies in partnership with non-profits or government entities, that display websites that are not under the control of the licensee or cable company will be exempt from the website display rule.
Host Selling on Websites
The fourth issue addressed by the Second Order was the extension of host selling rules to websites displayed during children’s programming. Acknowledging that there were problems with the host selling rule it adopted in the initial Order, the Commission vacated its earlier rule and replaced it with the formulation proposed by the joint coalition as follows:
Entities subject to commercial time limits under the Children’s Television Act will not display a website address during or adjacent to a program if, at that time, on pages that are primarily devoted to free noncommercial content regarding that specific program or a character appearing in that program: (1) products are sold that feature a character appearing in that program; or (2) a character appearing in that program is used to actively sell products.
To clarify, this rule does not apply to: (1) third-party sites linked from the companies’ web pages; (2) on-air third-party advertisements with website references to third-party websites; or (3) pages that are primarily devoted to multiple characters from multiple programs.
Just as with the existing commercial limits rules and the limitation on the repeat of programming on multicast channels discussed above, licensees will be required to certify that they have complied with the requirements concerning the display of website addresses in such programming. Similarly, licensees will be required to maintain records sufficient to substantiate the station’s certification of compliance with the restrictions on website addresses in programs directed to children ages 12 and under in their public inspection file until final action has been taken on the station’s next license renewal application.
Definition of Commercial Matter
Finally, the Second Order has adopted the joint coalition’s proposal to change the revised definition of “commercial matter” to exclude (1) promotions for any children’s or other age-appropriate programming appearing on the same channel, and (2) promotions for children’s educational and informational programming appearing on any channel. This clarification should give stations added flexibility to promote children’s programs within the core programming aimed at children.
New FCC Form 398 and More Certifications
A revised version of the FCC Form 398 Quarterly Children’s Programming Report has already been approved for use, and licensees will begin using the new form to report their core children’s television programming, including their digital core programming, as of the first quarter of 2007. So beginning with the report filed on April 10, 2007, stations must report their DTV children’s programming as well as their analog programming. Stations are advised to pay careful attention to the certifications being made on the FCC Form 398, and to ensure that it has the proper documentation to back up the certification. Making a false certification to the FCC is much worse than failing to meet the Commission’s children’s programming rules.
For more information about the FCC’s children’s programming rules, or for assistance in preparing and filing your Form 398 Children’s Programming Report, please contact any of the lawyers in the Davis Wright Tremaine LLP Broadcast Practice Area.
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 © 2006, Davis Wright Tremaine LLP.
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