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In two just released cases, the FCC fined television stations $8000 each for failing to publicize the location of their Children's Television Programming Reports for an entire license renewal period (the cases can be found here and here).  The FCC found that any remedial steps taken by the licensees after they discovered their failures at renewal time did not excuse the failure to comply during the license term.  The Commission, in the orders, cites a survey that found "virtually all of the stations in the sample complied with the requirement to publicize the existence and location of the stations' Children's Television Programming Reports", thus dismissing arguments that the rules were vague and unclear as they do not spell out how much publicity must be given to the location of these reports.  Based on these decisions, it's obvious that not all stations in fact got the message.

These cases remind all television broadcasters that they do in fact have obligations to publicize the location of their children's television reports and the contact person at their stations for information and comments about programming directed to children.  For more information on a television station's Children's Television obligations (or, as many broadcasters know them, the Kid-vid rules) under the Communications Act and the FCC rules, including the periodic notice that should be given by television stations, check out the Davis Wright Tremaine Quarterly Reminder, the most recent of which can be found here. 

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Each year poses a new set of regulatory deadlines, and to help you remember all of those deadlines, the Davis Wright Tremaine Broadcast Group has prepared a calendar setting out the dates that broadcasters need to remember in 2010.  The calendar can be found here, and sets out FCC imposed deadlines for, among other things, Ownership Report filings (for noncommercial stations for now, until the status of the Form 323 for commercial stations is resolved), for quarterly issues programs lists, for EEO public file and Mid-Term reports, and for children's TV reports.   The calendar also provides reminders about the dates of SoundExchange filings and payment obligations, and for the political windows during which lowest unit rates apply for the Federal elections to be held in 2010 (for the House of Representatives in all states, and for the Senate in over a third of the states).  Lots of dates to remember - so check out the DWT Broadcasters Calendar.

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On Friday, the Commission formally began a rule making proceeding regarding children and electronic media.  Aware of the vast opportunities, but also the potential risks inherent in today's (and tomorrow's) electronic media, the Commission is seeking to gather information about the extent to which children are using media today, the benefits and risks of the various technologies, and the ways in which society can improve the benefits while minimizing the risks.  Formally entitled "Empowering Parents and Protecting Children in an Evolving Media Landscape", the proceeding is aimed at building a record to inform and guide the Commission's future actions in this area. 

Clearly, these are big picture questions the FCC is dealing with at this stage, but with Friday's Notice of Inquiry the Commission seeks to break the issues down into several areas of inquiry and solicit comment from interested parties.  For example, with respect to the potential benefits, the Commission has identified six principle benefits it sees from electronic media and seeks input about each, including:  (i) improved access to educational content; (ii) ability to acquire technological literacy necessary in a global economy; (iii) ability to develop new skills in the use of technology and the creation of content; and (iv) facilitating new forms of communication with family and peers.  With respect to risks, the Commission has noted a range of potential dangers ranging from the possible exposure to child predators to the impact of excessive or exploitative advertisements.  The Commission's item also asks broad societal questions, such as whether there is a minimum level of media literacy that is required to participate effectively in modern society, and if so, how do we ensure that future generations gain the necessary exposure to electronic media.  At this stage of the process, the Commission is truly asking questions rather than proposing specific rules.  And in fact, there may be potential issues related to regulation in some of these areas, including First Amendment problems in connection with restricting access to indecent material in different types of electronic media. 

Just as an aside, the Notice quietly notes that the Commission previously released Notices of Proposed Rule Makings involving interactive television and embedded advertising on television, respectively.  While the FCC does not incorporate those open matters into this new proceeding, it does invite parties wishing to update the record on issues regarding embedded advertising in broadcast and cable television or interactive television to file ex parte submissions in the earlier dockets. 

The deadline for submitting Comments in this proceeding will be 60 days after publication of the Notice of Inquiry in the Federal Register, with Reply Comments due within 90 days of publication.  Comments may be filed with the Commission on paper, or online using the FCC's newly revamped Electronic Comment Filing System. 

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In the next few days, concerns about the protection of children from indecency and violence could lead to a report from the FCC to Congress urging use of the V Chip and other parental controls in devices other than television sets.  Remarks several weeks ago by FCC Chair Julius Genachowski suggesting that the FCC might want to look at content regulation beyond the broadcast medium, a view reiterated in an interview yesterday in TV NewsCheck, also suggest that  concerns about the exposure of children to indecency and other troubling programming on cable, online and by wireless devices may lead the FCC into unprecedented extensions of its regulation of entertainment content beyond the broadcast media.  An article today from Bloomberg News confirms that the FCC will be starting an inquiry to see if the television program ratings should be extended to cable and wireless entertainment services.  This extension of Federal regulation to protect children is occurring at the same time that similar concerns are being expressed by state legislatures, including the adoption of a recent law in Maine that effectively prohibits direct marketing to minors.

The report due this week follows a Notice of Inquiry issued by the Commission in March, as required by the Child Safe Viewing Act, legislation passed by Congress.  The law required that the FCC solicit public comment on "advanced blocking technology", the next generation of the V Chip, to see if these technologies can and should be extended to video programming other than broadcast television, including online communications, wireless communications (including video delivered to mobile  devices), DVRs and other video recorders, DVD players, and cable television.  The FCC Notice also asked why the current V Chip has seemingly not been used much by parents.  The FCC even asks if rules should be extended to video games - which were not specifically named in the legislation.  This would seemingly extend the FCC's jurisdiction far beyond its current limits.  The FCC's report is due by August 29. 

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2009 - a new year, and a whole new cycle of regulatory requirements.  We wrote last week about the potential for changes in regulations that may be forthcoming but, like death and taxes, there are certain regulatory dates each year that broadcasters need to note and certain deadlines that must be met.  Those dates are set out in our advisory - Important Dates For Broadcasters in 2009 - a calendar of the year's regulatory filings.  Dates include the deadlines for routine FCC filings - ownership reports, children's television reports, quarterly issues programs lists, EEO Public File reports, etc.  Dates for the payment of royalties for Internet radio streaming operations are also included, as well as the lowest unit rate windows for upcoming gubernatorial races in New Jersey and Virginia.  And the all-important DTV deadlines are also listed.  So, to keep track of your regulatory obligations, check out our broadcaster's calendar, here. 

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In several decisions released on Friday (here, here and here), the FCC fined Class A TV stations for not meeting their obligations under the Children's Television Rules to notify their viewers about the location of their public file containing information about the educational and informational programming they broadcast directed to children, and for failure to inform local program guides of the target ages for this educational and informational programming.  Class A TV stations are essentially LPTV stations that, early in the decade, were certified for Class A status, meaning that they cannot be displaced by subsequent authorizations for new full power stations or changes in the facilities of full power TV stations. These stations had to certify that they broadcast at least three hours of local programming per week, and also had to meet all the other obligations that are applicable to full power stations (but not necessarily to other Low Power Television Stations), e.g. local main studio, local public file, children's television obligations.  A fine of $4000 was imposed on the stations for these failures.

The cases remind Class A stations of their public interest obligations.  It also reminds all stations of their obligations to publicize the existence of its children's television compliance records, and to insure that program guides not only know about their educational and informational programming but also about the ages to which this programming is targeted.  Little details, but details that cost many licensees money for their forgetfulness during the last license renewal cycle. 

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In several recent speeches and press releases, FCC Commissioner Jonathan Adelstein has challenged the FCC to do more in the regulation of children's programming.  In a recent Press Release, the Commissioner outlined proposals including the following:

• Improve the V-Chip and other program blocking technologies
• Improve ratings information for television programming - including potentially having third parties review programming for its suitability to children as opposed to the television programmers themselves doing the ratings
• In the context of a proceeding on Embedded Advertising that has been rumored for quite some time, look at how such advertising is used in children's programming
• Restrict interactive advertising directed at children.
• Convene a summit to explore these issues

In addition to these proposal, the Commissioner gave a recent speech to the Media Institute in which he expanded on these ideas, and also lengthened this agenda to include further Commission action to define and restrict violent programming.  He also expressed his regrets over the recent decision overturning the FCC's fines for fleeting expletives and urged that action be taken to overturn this decision (see our post here on the FCC's appeal of that decision).  And in yet another recent speech, he emphasized the proceeding on Interactive advertising in children's programming, remarking on how the Commission has a pending proceeding that has been pending and unresolved for several years.  He cited the Commission's tentative conclusion to ban such ads, as broadcasters form a "portal" for children's entrance to the Internet.  While the Commissioner expressed that the FCC had little jurisdiction to do much on the Internet itself (but see our recent post as asking whether the FCC may soon get more power over the Internet), he felt that restrictions on the links to the Internet from television programs would be useful in protecting children. 

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A reminder to all radio and television broadcast stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations' communities, and the programs aired in the months of October, November, and December dealing with those issues must be prepared and placed in the stations' public inspection file by January 10, 2008.  The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion.  See our full advisory for further details.

In addition, commercial full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by January 10, 2008.  The Reports must also be placed in the stations' public inspection files by that date.  Our recent advisory is available here with all the details, including the requirements for DTV stations airing multiple program streams and details about the new Form 398.  Quarterly certifications regarding compliance with the commercial limitations in Children's Programming should also be prepared and placed in the public inspection file by January 10th. 

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At last Thursday's Public Hearing on multiple ownership in Chicago, about which we wrote here, a statement was read by a spokesman for Presidential candidate Barack Obama.  According to press reports, the statement expressed the candidate's positions favoring shorter license renewal terms for broadcasters so that they would be subject to more public scrutiny, as well as criticizing the FCC for allowing broadcast consolidation.  These thoughts essentially echo the comments of FCC Commissioner Copps, especially on the subject of license renewal terms, whose views we wrote about here.  While many press reports have asked if this statement by Senator Obama foreshadows the broadcast ownership debate becoming part of the presidential campaign issues, we worry that it may signal a far broader attack on broadcasters during the upcoming political year.  The statement by Senator Obama is but one of a host of indications that broadcasters may face a rash of legislative issues that are now on the political drawing boards.

Broadcasters make easy targets for politicians as everyone is an expert on radio and television - after all, virtually everyone watches TV or listens to the radio and thus fancies themselves knowledgeable of what is good and bad for the public.  But those in Congress (and on the FCC) have the ability to do something about it.  And, with an election year upon us, they have the added incentive to act, given that any action is bound to generate at least some publicity and, for some, this may be their last opportunity to enact legislation that they feel important.  We've already written about the renewed emphasis, just last week, on passing legislation to overturn the Second Circuit's decision throwing out the FCC's fines on "fleeting expletives" and making the unanticipated use of one of those "dirty words" subject again to FCC indecency fines.  Clearly, no Congressman wants to be seen as being in favor of indecency (look at the rise in the indecency fines to $325,000 per occurrence which was voted through Congress just before the last election), and First Amendment issues are much more nuanced and difficult to explain to the voter, so watch this legislation.

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A reminder to all radio and television broadcast stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations' communities, and the programs aired in the months of July, August, and September dealing with those issues must be prepared and placed in the stations' public inspection file by October 10, 2007.  The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion.  See our full advisory here for further details.

In addition, commercial full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by October 10, 2007.  The Reports must also be placed in the stations' public inspection files by that date.  Our recent advisory is available here with all the details, including the requirements for DTV stations airing multiple program streams and details about the new Form 398.  Quarterly certifications regarding compliance with the commercial limitations in Children's Programming should also be prepared and placed in the public inspection file by October 10th.

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On Friday, the FCC showed released two decisions – both dealing with a handful of inadvertent violations of the Commission’s rules on advertising directed to children. In one case, a licensee admitted in its license renewal application 4 violations of the rules and was fined $8,000. In another, the licensee admitted 8 violations, received no fine at all, instead being only admonished for its errors. Why the difference?

The FCC justified the difference in treatment based on the nature of the violations.  In reality, the station that did not receive any fine actually broadcast more commercial material in excess of the limits on the amount of advertising permitted in children's program than did the station that was fined. The reason – “program length commercials.” These are instances where, in a commercial message, a character from the surrounding program appears. In that situation, the FCC considers the entire program as a commercial, and thus the violation is considered much more serious than a mere overage in the time limits on commercial material in children’s programs. The station that received the fine had 3 program length commercials, while the station that was not fined simply ran more commercial matter than permitted by the rules – and did not have any program length commercials. But are these distinctions really justified?

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A reminder to all radio and television broadcast stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations' communities, and the programs aired in the months of April, May, and June dealing with those issues must be prepared and placed in the stations' public inspection file by July 10, 2007.   The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion.  See our full advisory here for further details. 

In addition,commercial full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by July 10, 2007.  The Reports must also be placed in stations' public inspection files by that date.  Our recent advisory is available here with all the details, including the requirements for DTV stations airing multiple program streams and details about the new Form 398.  Quarterly certifications regarding compliance with the commercial limitations in Children's Programming should also be prepared and placed in the public inspection file by July 10th. 

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As a result of the unavailability of the most recent Form 398 Children's Television Programming Reports, and perhaps in recognition that it had set an overly aggressive pace for submitting comments, the Commission yesterday extended the time for interested parties to file comments regarding the status of children's television programming until September 4, 2007.  Similarly,  the time for reply comments has been extended until October 1st.  A copy of yesterday's Public Notice granting the extension is available here. 

As we reported earlier, in April the FCC issued a Public Notice asking for information as to the compliance of television broadcasters with their obligations to provide programming that addresses the educational and informational needs of children.  The Notice stated that it was a follow-up to the Commission's 2004 Order addressing the children's broadcasting obligations of digital television broadcasters, however, the notice also referred to the recent $24 million settlement with Univision, which resolved allegations that Univision had misclassified entertainment programming as being educational programming addressed to children.  The Commission's Notice seeks input regarding whether television broadcasters are complying with the rules, and whether the rules provide sufficient guidance to broadcasters as to what kind of programming satisfies the rules for educational broadcasting.   Thus, in order to give parties time to access and review the Form 398 Reports from the First Quarter of 2007 (which are not due until June 10th), the Commission has granted an additional two months for comments. 

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Although the FCC has not issued a public notice announcing that the revised form is available, the new FCC Form 398 Children's Television Programming Report is now available on the Commission's web site.  The form is available here, and should be used in lieu of the previous version of the form.  As we've written previously, 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 analog channel.  For stations that multicast multiple programming streams, the quarterly report can require a bit of additional time to prepare. 

Because the revised form was not available in April, when the first quarter reports would have been due, the Commission granted an extension of time until June 10th for television stations to prepare and file their FCC Form 398 Children's Television Programming Reports.  Thus, stations should be sure to complete and file the form with the FCC and place a copy of the report in their public inspection file by June 10th.  Going forward, the quarterly filing deadlines will be back on schedule with the Second Quarter Report due by July 10th. 

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Three of the FCC Commissioners have responded to the Congressional inquiry about the Commission’s rules regarding junk food advertising about which we wrote here.  This inquiry was initiated by Congressman Ed Markey, Chairman of the House of Representatives Subcommittee on Telecommunications and the Internet. The Congressman's letter had urged the FCC to move quickly to implement rules limiting the advertising of unhealthy food aired during broadcasting directed to children.  The Commissioners' responses uniformly indicate the potential for regulation, depending in part on the outcome of the activities of the industry Task Force formed at the initiation of, and with the participation by, the FCC and Congress. See our reports on the formation of the Task Force, here.  The Commissioners all note that should the Task Force fail to conclude that the industry has achieved satisfactory results through self-regulation, FCC proceedings might be required to insure that children are not unduly exposed to junk food advertisements. 

Two commissioners, Chairman Martin and Commissioner Tate, responded jointly, and indicated that the FCC could explore regulation of unhealthy food, perhaps looking at guidelines adopted in other countries as a model for US regulation.  These Commissioners' statement even address the issue of regulating children's programming on cable television networks, where they claim that there is much exposure to ads for junk food.  These statements make clear that this is not just an issue for the broadcast industry.

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In a letter to FCC Chairman Martin and Commissioners Copps and Tate, Congressman Edward Markey, head of the House of Representatives Subcommittee on Telecommunications and the Internet, has asked that the FCC take strong steps to restrict the advertising of unhealthy food in children's television programs.  While applauding voluntary efforts promised by some broadcasters to include in their children's programing more Public Service Announcements (PSAs) for healthy eating, Congressman Markey urged the FCC to do more by cutting in half to 6 minutes per hour the amount of permissible advertising in children's programming , and by finding that a station had not met its obligations to broadcast educational and informational programming directed to children if the station aired ads for unhealthy foods during a program which would otherwise qualify as a toward meeting the station's obligations.

The letter from Congressman Markey, while citing efforts in other countries to enforce similar regulations, does not address basic issues with each of his proposals.  First, if sponsorship of children's programming is cut in half, won't that also cut the incentive of broadcasters to air such programs?  Cutting sponsorship to the bone would seem to guarantee that broadcasters will do the absolute minimum amount of children's programming required, so that they can air programs where there are no advertising restrictions.

These requirements would also seem to make broadcasters into the food police.  Broadcasters will have to educate themselves as to the nutritional qualities of various food products to make sure that nothing impermissible gets on the air.  And where will lines be drawn?  Could a station safely advertise a fast food store if the ads featured only the salads sold by the store - even where that store might also sell not so healthy alternatives?  If definitions are drawn by numerical limits on contents such as sugar, salt and fat (as suggested by the letter), will these limits necessarily lead to advertising the most healthy foods?  Will broadcasters be forced to substitute for parents in making decisions about what their children will eat?

 

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As we reported recently (see earlier blog here), at the end of April, the FCC issued a Public Notice asking for information as to the compliance of television broadcasters with their obligations to provide programming that addresses the educational and informational needs of children.  The Commission asks questions in its Notice as to whether television broadcasters are complying with the rules, and whether the rules provide sufficient guidance to broadcasters as to what kind of programming satisfies the rules for educational broadcasting.  That Public Notice was published in the Federal Register today, establishing the dates for submitting comments to the FCC on the issue. 

Accordingly, interested parties have until June 1, 2007 to submit Comments to the FCC, and until June 18, 2007 to submit Reply Comments.  This is a very short period for comments and the clock is now ticking.  So parties interested in providing the FCC with input about the status of children's television programming and compliance with the Commission's children's programming rules are encouraged to start drafting now.  Comments can be submitted in paper, or through the FCC's Electronic Comment Filing System (ECFS) available here. 

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On Thursday, the FCC issued its Report on violent programming on television, finding that such programming has a negative impact on the well being of children, and suggesting that Congressional action to restrict and regulate such programming would be appropriate.  A summary of the findings of the Commission can be found in our firm's bulletin on the Report, here.  As we point out in our bulletin, the Commission did not adopt this report with a united voice, as both Commissioner Adelstein and McDowell expressed concerns about the thoroughness of the report, the practicality and constitutionality of drawing lines between permitted and prohibited violence in programming, and even whether the government is the proper forum for restricting access to such programming or whether this isn't fundamentally an issue of family and parental control. 

The Report suggests that legislative action to restrict violent programming  or to channel it to certain time periods might be appropriate as parents are often not home when children watch television, and technological controls, like the V-Chip, are ineffective as parents don't know that they exist or, if they are aware of the existence of the controls, they don't know how to activate them.  The Commission also suggests that the ratings given to programs are not always accurate.  An interesting alternate take can be found in an article in Slate, here, citing a study not mentioned by the FCC finding that parents, even when carefully educated about the V-Chip and its uses, do not use it.  This seems to indicate that parents are not as concerned about the issue as is the FCC, and suggests that the real motivation is not restricting what is presented to children, but instead what is available to adults.

 

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Last week, the FCC issued a Public Notice asking for information as to the compliance of television broadcasters with their obligations to provide programming that addresses the educational and informational needs of children.  While the Notice indicates that it is a follow-up to the 2004 Order addressing the children's broadcasting obligations of digital television broadcasters, the notice also refers to the $24 million settlement with Univision to resolve allegations that it had misclassified entertainment programming as being educational programming addressed to children.  The Commission asks questions in its notice as to whether television broadcasters are complying with the rules, and whether the rules provide sufficient guidance to broadcasters as to what kind of programming satisfies the rules for educational broadcasting.

We wrote about the Univision settlement agreement, here.  It is interesting that the FCC, after issuing the largest broadcast fine in history to Univision, apparently rejecting the arguments that Univision made that its programming was in compliance, now asks whether the rules provide enough guidance for broadcasters to know whether or not particular programs comply.  As we've written before in many contexts, whenever the government gets into issues of defining when speech is acceptable or not, guidelines and limits are difficult or impossible to establish.  Nevertheless, the Commission is now asking that parties help to clarify the definition of educational programming directed to children.  Comments are due 30 days after publication of this Notice in the Federal Register, and reply comments are due 15 days later.

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The FCC yesterday approved the sale of the stock of Univision Communications to a consortium of private equity companies.  In order to approve the deal, the FCC agreed to a $24 million dollar payment to the US Treasury by Univision as part of a consent decree for alleged violations of the children's television rules.  The consent decree, attached to the FCC decision on the sale, while providing for one of the largest fines ever paid to the FCC, provides little guidance to broadcasters on what constitutes educational and informational programming directed to children, the source of the violation found by the FCC. But the separate Statement of Commissioner Copps raises a new issue - one he looks for the FCC to study and report on - the effect of private equity and debt on the ability of broadcasters to operate in the public interest. 

The Copps opinion suggests that the debt incurred in connection with acquisitions by private equity companies may impair the ability of broadcast stations to operate in the public interest, as money needed for operations is instead funneled into debt repayment.  Of course, private equity firms are not the first owners of broadcast companies to incur debt, nor is there any evidence that I have seen that private equity companies which own broadcast companies have proportionally more debt than other broadcast owners.  What would the FCC hope to accomplish through such an investigation?  I can't see the FCC evaluating each transaction that comes before it to determine if the proposed debt structure would be too much of a burden on the operations of a station.  Nor could I foresee the FCC putting broadcast ownership restrictions on certain classes of otherwise qualified potential broadcast owners.

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The U.S. District Court for the Eastern District of Pennsylvania, in a decision released last week, permanently enjoined on First Amendment grounds enforcement of the Child Online Protection Act ("COPA").  That Act sought to require website operators to restrict access to portions of their websites where there is material that would be "harmful to minors."  The decision is the latest development in litigation that is nearly a decade long over COPA - a law that has never taken effect but rather has been preliminarily enjoined virtually since its enactment - which has been part of legal challenges to Congress' efforts to regulate online sexually oriented content.  This litigation has already twice been to the Supreme Court.  The most recent opinion makes it likely the issue will go to the Supreme Court a third time (following an intermediate appeal to the Third Circuit).  If the law ever were to survive review, a broad range of websites, including not only those involving sexually oriented adult content, but also potentially many other sites including those covering news events or sex education, would have to change how they do business online.

At the center of the challenged law is COPA's "harmful to minors" standard, the application of which to Internet speech was struck down by the Court.  COPA makes it a crime for commercial websites to make material that is "harmful to minors" publicly available, and it exposes alleged violators to up to $50,000 in fines and six months' imprisonment.  As a practical matter, COPA would require website operators that offer content that might fall within the "harmful to minors" standard, which is an adapted version of the legal test for whether material is unlawfully obscene, to restrict access by requiring use of a credit card or similar account mechanism, a digital certificate that verifies the age of website visitors, or some other technologically reasonable measure that can restrict website access based on age.  Parties challenging and/or opposed to the law say the harmful-to-minors standard is vague and sweeps too broadly, and that statute is an overly restrictive approach to dealing with minors' potential access to online sexually oriented content, especially given the less restrictive alternative of filtering software that can block such access.  The Court found COPA was invalid on several legal grounds.  These include that it is not narrowly tailored and the government failed to satisfy the legal requirement of showing the content-based restriction is the least restrictive means of serving its asserted interest in protecting minors, and that COPA is vague and overbroad.

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The FCC has announced that the filing of the FCC Form 398 Children's Television Programming Reports for the First Quarter of 2007 will be postponed until June.  Thus, rather than preparing the Form 398, filing it with the FCC, and placing it in the station's public file by April 10th (ten days after the end of the first quarter), the report for the First Quarter of 2007 does not have to be completed, filed, and placed in the public file until June 10th. 

This extension of time to file is the result of the FCC's revision of the Form 398 to solicit information regarding children's programming aired on multicast digital streams, as well as a result of an ongoing upgrade of the FCC's computer database containing the children's television reports.  As we've reported previously on this blog and in a separate bulletin, the Commission last year made revisions to its children's television rules, including the extension of the programming obligations to multicast digital television streams.  The revised Form 398 will contain additional sections for stations to certify their compliance with the various new rules, as well as to report the core children's programming aired on the digital programming streams.

According to the FCC's Public Notice announcing the extension of the filing deadline, the revised electronic version of the Form 398 should be available on the Commission's website by May 15, 2007.   We will let you know once the new form is available, and stations should be careful to gather and retain the pertinent information for the programs broadcast in the first quarter so that information is available once the new form is released. 

 

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$24 Million is enough to get anyone's attention - and a fine in that amount should wake up all television broadcasters who have grown complacent about the FCC's enforcement of its regulations requiring television stations to broadcast three hours of weekly educational and informational programming directed to children.  According to a report in the New York Times, the FCC is expected to announce that it has agreed to a settlement with Univision that would result in a payment of that amount as a way of resolving complaints against the network's stations about whether a claimed educational program qualified as educational and informational programming directed to children.   The settlement agreeing to pay this fine will also clear the way for the grant of the application seeking approval of the pending sale of Univision.  According to the Times report, this fine is many time higher than the highest fine ever issued by the FCC - a $9 million fine against Quest.  Certainly it dwarfs any fine for violation of children's television rules.  The highest fine that I can recall is one that was in excess of $200,000 for several hundred violations of the FCC rules limiting the amount of advertising permitted during programming directed to children.

While many complaints have been filed in the past against television stations alleging that programs claimed as educational and informational were not sufficiently serious to warrant that label, few stations have been fined for violations of the rule, at least partially because the FCC's standards are ambiguous.  Programming need not be strictly educational to qualify, but instead must contribute to the educational and informational needs of children, "including the child's intellectual/cognitive or social/emotional needs."  A child is defined as anyone age 16 and under.  As programming that meets the social and emotional needs of a child of 16 may be hard to differentiate from programming directed to adults, the lines are not easy to draw.

The Univision programming at issue involved a telenovella - in essence a Spanish soap opera - about 11 year old twin sisters separated at birth who find each other and swap identities.  According to the Times report, the FCC was not convinced that the complex plot with intertwined stories provided by this program could be followed by children.  I find this reasoning hard to believe as a parent of a teenager who has had no problem following the plot of Lost and similar television programs with complex intertwined subplots - most often explaining to me what is going on.  In fact, last year there was even a book, Everything Bad is Good For You,  which argued that the complex plots now common in television programs and video games helped develop children's cognitive abilities.  Look here for a link to many of the discussions of this book.

The Commission also apparently looked to the fact that much of the commercial matter broadcast in the program was adult-directed, undercutting the claim that the children's educational and informational was a "significant purpose" of the program, as required by the rules.

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Yesterday, we wrote about a government task force, in which the FCC is playing a starring role, to study the media's impact on obesity.  Now, press reports indicate that violent programming on TV may be the subject of Congressional scrutiny this year.  An LA Times report cites a number of influential lawmakers as wanting to initiate a government review of violent programming and whether the FCC should regulate that programming.  A study from the FCC on violent programming is expected soon.  That study, coming on the heels of one released by the Parent's Television Council, which we reported on here, may well fuel this Congressional action.

There seems to be an unending list of complaints about the broadcast media, and for each complaint, there seems to be someone ready to introduce a law to do something about it.  Broadcasters need to be diligent and restrained in their conduct, as one Janet Jackson-like incident could result in new legislation getting the momentum necessary to become something more than a line in a campaign speech.  In an editorial, Broadcasting and Cable has urged such restraint.  With an election less than two years away that already appears to be featuring an unprecedented number of Presidential candidates and a large number of fiercely contested Senate races, no one wants to become that campaign issue that results in new regulations on broadcaster's freedoms. 

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In a Public Notice issued today, the FCC announced the membership of a Task Force to study how the Media affects childhood obesity.  We reported on the formation of the task force in October, but its membership is just being announced, and its first meeting will be taking place on Valentines Day (probably without red hearts filled with chocolates for the members).  The task force is comprised of representatives of various public interest groups, food and media industry representatives, two FCC Commissioners and Senators Brownback and Harkin.  The Public Notice states that the Task Force will focus on voluntary means by which the media can help fight childhood obesity.  At the end of their study, the Task Force will issue a report on its findings.

This issue is one which the broadcaster should follow closely.  Senator Brownback has made this issue his own and, with his announcement this week that he is exploring a run for President, we can be sure that more will be heard about this issue.  We reported in August on his initial attempts to have the industry adopt guidelines to limit the advertising to children of unhealthy foods.  Also, Commissioner Tate has enthusiastically promoted this task force, issuing a statement today applauding the start of its important business of addressing this societal problem.  With these officials invested in this issue, broadcasters will no doubt face pressures to restrict their advertising of unhealthy food.  Watch for the results and recommendations of this Task Force in the next year.

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In a report issued last week, the Parent's Television Council submits that there has been a significant increase in violent programming on television since 1998.  The report contends that violent programming has increased, and become more graphic and more sensationalized.  Will this report  mark the beginning of a new attempt to regulate television programming?

The FCC, because of a requirement imposed by Congress several years ago, already asks television broadcasters to report in license renewal applications all complaints they have received about violent TV programming.  Thus far, this question has not resulted in any action against any broadcaster.

The PTC has also been involved in the efforts to make the FCC take a more aggressive stance against indecency.  In fact, on it's website, it currently has a headline suggesting that readers file a complaint with the FCC about the appearance of the "F Word" on a spectator's tee shirt in one of the NFL telecasts of this past weekend. 

 Thus, violence may well join the growing list of programming issues (including indecency, children's educational programming, and advertising relating to unhealthy food) about which broadcasters may need to be concerned in the future.

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By January 10, 2007, all radio and television broadcast stations, both commercial and noncommercial, must prepare and place in their public inspection files a list of important issues facing their communities, and the programs aired in the months of October, November, and December dealing with those issues. These Quarterly Issues Programs lists are the only legally required documents that demonstrate how a station has met its public service obligation to its community of license and service area. The failure to have a complete set of Quarterly Issues Programs lists that were prepared and placed in the station's public file at the proper time can lead to significant fines at license renewal time. Moreover, the failure to produce and document programs responsive to community needs could cause even greater problems for a broadcast licensee. See our bulletin on quarterly issues programs lists for more information. 

Also by January 10, 2007, television stations (including Class A television stations) must place in their public inspection files and file with the FCC an FCC Form 398 Children's Television Programming quarterly report detailing the core children's programming aired in the fourth quarter of 2006 serving the educational and informational needs of children.  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. 

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As 2006 hurtles to a close and 2007 looms on the horizon, two quick reminders about a couple of upcoming effective dates.

First and foremost, as of December 31, 2006, the Commission's Emergency Alert System ("EAS") rules will be extended to digital services.  Specifically, as of December 31st, digital television, digital cable, digital radio (including LPFMs), and satellite digital radio, will be required to comply with Part 11 of the Commission's Rules, which require participation in all national EAS activation, and periodic testing of EAS equipment.  More information regarding the EAS rules for digital services can be found in our earlier blog of November 21, below.   

Second, the changes to the FCC's Children's Programming Rules, including the rules governing DTV multi-casting, become effective January 2, 2007.  These new rules are summarized in our earlier entry of October 24, below, and in our recent Bulletin.  Most notably, the rules affirmed the requirement that DTV stations broadcasting multiple streams of programming must increase the amount of kid vid programming in proportion to the amount of additional free video provided.  Accordingly, DTV stations that are multi-casting programming on multiple streams should ensure that they have enough children's programming lined up by January 2nd to meet the new requirements.

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The FCC's Order implementing the recently adopted changes to the FCC's Children's Programming Rules has now been published in the Federal Register, meaning that the effective date for the new rules is January 2, 2007.  These new rules are summarized in our earlier entry of October 24, below, and in our recent Bulletin.  Most notably, the Order affirms the requirement that DTV stations broadcasting multiple streams of programming must increase the amount of kid vid programming in proportion to the amount of additional free video provided.  Accordingly, DTV stations that are multicasting programming on multiple streams should ensure that they have enough children's programming lined up by January 2nd to meet the new requirements. 

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.  Beginning with the report filed on April 10, 2007, stations must report their DTV children’s programming as well as their analog programming. 
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At the Open Meeting on September 26, the Commissioners unanimously adopted a Second Order on Reconsideration and Second Report and Order resolving several issues regarding the children's television programming obligations for television broadcasters.  Specifically, the Order modifies the children's rules to clarify the FCC's rules regarding host-selling, the definition of commercial matter and the display of website addresses during children's programming, .  The Order also eliminates the cap on the number of preemptions that are permitted for a qualifying core program, and clarifies the limits on the repeat of core programs on multi-cast DTV channels.  The Order is a result of a Joint Proposal of Industry and Advocates that sought reconsideration and clarification of the Commission's 2004 Children's Television Order.  A copy of the Joint Proposal is available on the FCC's website here.  The Commission's News Release provides some details regarding the forthcoming Order, and we will post the full details of the modified rules once the text of the Order is released. 

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