Broadcast Station Filings Due in January 2025 – Online Public File Reminder
As described in more detail below, by January 10, 2025, all radio and television broadcast stations—both commercial and noncommercial—must prepare a list of important issues facing their communities of license and the programs aired during October, November and December dealing with those issues. All TV stations and radio stations must post these documents to the FCC's online public file database. The FCC's online public inspection file database ("OPIF") can be accessed through this link.
Additionally, radio and television broadcast stations are reminded to keep complete and orderly records in their Political File of all requests for broadcast time made by or on behalf of a candidate for public office or by a political issue advertiser.
By January 30, 2025, broadcast television stations must file their annual Children's Television Programming Report. Also by January 30, 2025, broadcast television stations must prepare an annual proof of compliance with the commercial limits and post this information to their online public inspection file.
Issues/Programs Lists
All radio and TV broadcast stations must prepare Issues/Programs Lists and upload them to their online public inspection files within ten days after the end of each quarter. The quarterly Issues/Programs list is station-specific and, therefore, each station should have its own list, describing programming broadcast on that station addressing issues of importance to its viewers or listeners. The next list must be prepared and filed by January 10, 2025.
The quarterly Issues/Programs list should reflect the "station's most significant programming treatment of community issues." Thus, a station needs to identify issues of importance to its community of license that it has determined to be of significance during that quarter and the programming that was responsive to those issues. In the past, the FCC had mandated identification of five to ten issues per quarter. While the FCC no longer requires identification of a specific number of issues, that range remains a good target.
Although broadcasters have discretion in deciding the specific programs that address the identified issues, all stations must broadcast some programming that does so. Each program must be identified, including the title and length of the program, as well as the time and date on which it was aired. The description should include a brief summary of the contents of the program, sufficient to demonstrate how the program addressed the identified issue. Failure to have a complete and timely set of quarterly Issues/Programs lists can lead to significant fines at license renewal time or following an FCC inspection. Even stations that are off-air pursuant to Special Temporary Authority from the FCC must prepare an Issues/Programs list stating that the station was off-air for the entire quarter or provide a list of programs for the portion of the quarter during which the station was broadcasting.
Children's TV Programming Reports
Broadcast television stations must file their annual Children's Television Programming Report by January 30, 2025, on FCC Form 2100, Schedule H (formerly FCC Form 398).
Under the commission's current guidelines, stations are required to air an average of at least three (3) hours of "core" children's programming per week or 156 hours annually. (Former guidelines required three hours of core programming per week per digital stream. The requirement for additional core programming attributable to multicast streams was eliminated as of September 16, 2019.) Up to one third of a station's children's programming can be broadcast on a multicast stream, as described in our July 2019 advisory.
Core children's television programming is defined as programming that is (1) designed to meet the educational and informational needs of children aged 16 years or younger as one of its significant purposes; (2) at least 30 minutes in length; (3) identified throughout the program with the educational/informational (E/I) symbol or "bug" (now applicable to commercial stations only); (4) aired weekly at a regularly scheduled time between the hours of 6 a.m. (formerly 7) and 10 p.m.; and (5) identified at the time of airing and to program guide publishers as being "core programming" designed for a specific age range of children.
Stations are also reminded to provide the required 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. Core children's programming must also contain the E/I bug superimposed on the program to identify the program as meeting the educational and informational needs of children. (This requirement has been eliminated for noncommercial TV stations only.)
Stations have been fined for insufficient documentation showing compliance with the children's programming rules or for missing documentation during the license term. Accordingly, stations should prepare and post all forms and certifications required by the commission's rules to avoid potential problems.
Third-Party Fundraising by Noncommercial Broadcasters
By January 10, certain noncommercial educational stations must upload to their public inspection files documentation of their on-air fundraising that took place between October 1, 2024, through December 31, 2024, that benefited third parties. This obligation applies only to noncommercial educational stations not affiliated with PBS or NPR that conducted third-party on-air fundraising that interrupted normal programming.
Commercial Limits
In addition to requiring programming that is responsive to the educational and informational needs of children aged 16 or younger, the FCC's rules also limit the amount of commercial material that can be aired during programming aimed at children aged 12 and under. Specifically, the rules state that "no commercial television broadcast station licensee shall air more than 10.5 minutes of commercial matter per hour during [such] 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, TV stations must prepare an annual proof of compliance with the commercial limits and post this information to their online public inspection file by January 30, 2025.
There is no specific form for this purpose. Stations may keep program logs demonstrating compliance with the commercial limits, but if the logs are intended to satisfy the documentation requirement they must be posted online as well. 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. Many networks and syndicators that provide children's programming also provide certifications that their programs comply with the commercial limits. Such lists should be reviewed periodically to ensure accuracy.
The commercial limits on children's programming apply to cable and DBS operators as well, who must also keep records verifying compliance with those limits.
Note: While children's programming is required to serve the educational and informational needs of children up to 16 years of age, the commercial limits apply only to programs broadcast or cablecast primarily for children aged 12 and under.
Special Rules for Class A TV Stations
The FCC requires that Class A TV stations maintain information in their (online) public files sufficient to demonstrate their continuing eligibility for Class A status, i.e., that they are on-air at least 18 hours per day, that they have broadcast at least three hours per week of locally produced programming, and that they have otherwise observed the rules that apply to full-power TV stations.
Political Requests for Broadcast Time
In addition to the Issues/Program Lists quarterly public file obligation discussed above, the Communications Act and FCC rules require stations to maintain and make available for public inspection information about all requests for broadcast time made: (1) by or on behalf of candidates for public office; and (2) by an issue advertiser whose advertisement communicates a message relating to a political matter of national importance. Stations are to upload such information to their online political files "as soon as possible." The FCC has interpreted "as soon as possible" to mean "immediately absent unusual circumstances." Stations should note that the FCC's Media Bureau has entered into Consent Decrees with stations for failure to comply with the FCC's Political File obligations and that failure to comply can pose challenges at the time of license renewal.
Audible Crawl Waiver
The FCC's Media Bureau granted the National Association of Broadcasters' request for a retroactive extension of the waiver of the FCC's audio crawl rule, extending the waiver through May 27, 2025, or until the FCC rules on the NAB's separate request to pause the effect of the rule while the FCC considers the NAB's proposal that broadcasters comply with the rule by providing "textual crawls that provide emergency information duplicative or equivalent to the information conveyed by the visual image." The FCC's audio crawl rule requires TV stations to provide an aural description transmitted on the station's SAP channel of non-textual emergency information, such as maps or other graphic displays, conveyed outside of station newscasts. Broadcasters have asked for extensions of the effective date of this rule as there is no technological way to reliably convert graphics to speech. The bureau granted the new extension because of the public safety issues that would arise if TV stations stopped airing visual images about emergencies because they could not comply with the rule's requirements. The bureau also stated that TV stations would not be subject to any enforcement action for failing to comply with the rule during the brief period from November 26 until December 20 when the rule was in effect.
Station Log Requirement
FCC rules require that all broadcast stations maintain a log, make it available for FCC inspection, and keep it at the station for at least two years. The Chief Operator must review the log weekly to verify the station is being operated in accordance with authorized parameters, initiate any corrective action that may be necessary, advise the station licensee of any condition that is repetitive, and date/sign the log. See FCC Rules 73.1800 - 73.1870, and FCC Rules 73.1225 - 73.1226.
AM Equipment Performance Measurements
AM Stations are required to make equipment performance measurements at least once every 14 months, and to keep the results of those measurements available for FCC inspection for two years; public file retention is not required. The end of the year may be a good time to make those measurements if not otherwise regularly scheduled.
Foreign Government Program Certifications
All agreements for the sale or lease of program time on radio and TV broadcast stations should contain a certification from the program buyer that it is not a foreign government, foreign political party, or agent of a foreign government, including a U.S.-based foreign media company, and that no such foreign entity has paid the programmer to produce the program or to air it on the broadcast station(s). Broadcast station licensees must exercise "reasonable diligence" both at the time of the lease agreement and any renewal thereof to ascertain whether the foreign sponsorship disclosure requirements apply, i.e., whether programming is being provided by a foreign government or political party or agent thereof. This includes programming provided to the station for free with the expectation that it will be broadcast. Licensees must maintain records reflecting their diligence for either the remainder of the then-current license term or one year, whichever is longer.
For any programs that are provided by a foreign government or its agent, the broadcast licensee is required to place enhanced sponsorship identification in the program. See FCC Rule Section 73.1212(j) for details.
Additionally, the airing of any such program requires the licensee to place copies of the disclosures required by that FCC rule in its online public inspection file on a quarterly basis, including the name of the program and the date and time when the program aired. These disclosures must be placed in a standalone folder titled "Foreign Government-Provided Programming Disclosures." In the case of repeat airings of the program, the broadcaster must place the date and time of all such airings in the public file.
Note that these requirements do not apply to programming purchased by broadcasters but only to programming bought from broadcasters or provided for free to a foreign governmental entity, for example, pursuant to an LMA or TBA. Ads for commercial products are excluded from this requirement as are political candidate ads. But issue ads and PSAs are subject to these requirements.
The FCC recently released a Second Report and Order and new rules that both create standardized language for the required certification and that require that these certifications be placed in the station's public inspection file. The new rules became effective August 15, 2024. Also, this past January a bill was introduced in Congress entitled "Block Foreign-Funded Political Ads Act" that would impose additional obligations on broadcasters, cable and satellite television providers, and online platforms to make reasonable efforts to ensure that political ads are not purchased by a foreign national, directly or indirectly. Although the bill (H.R. 6996) remains before the Committee on House Administration, it will likely "die" this session, and the bill would need to be reintroduced next session.
If you have any questions, please contact Burt Braverman or broadcast paralegal Sharon Mathis.
Disclaimer
This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. 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.
*David Silverman is a contract attorney and former partner of DWT. Broadcast paralegal Sharon Mathis also contributed to this advisory.