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October is a very important month in the regulatory world, and broadcasters need to be aware of the regulatory deadlines that have already arisen this month, or which will come up in the next few days. This week, TV Newscheck published our latest summary of the state of many of the most significant legal issues facing TV broadcasters at the FCC and in Congress. In looking at the list, it is clear that this month is particularly important for broadcasters. For instance, this is the month that most TV stations outside of the Top 50 markets will first have to deal with the online public file – having to post their Quarterly Issues Programs Lists and Children’s Television reports on their sites. The FCC this week issued a Public Notice of increased functionality of the online public file, partially to handle these obligations. Of course, radio stations also need to have their Quarterly Issues Programs Lists in their paper public file this week – as the lack of these lists is source of many of the fines that are issued during the license renewal process.

Also this month is the start of the obligation for Internet captioning of any programming that had previously aired with captions on TV. The obligation applies to any full TV program that was captioned when broadcast over-the-air after September 30 and is then posted in full on the Internet. The FCC just issued a reminder about this obligation, emphasizing its importance.

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Yesterday, the FCC issued fines totaling $52,000 against four Class A television stations for belatedly filing their FCC Form 398 Children’s Television Programming Reports. The stations, each of which had missed at least a couple of years’ worth of Children’s Reports, were also fined for failing to timely place the reports in their public inspection files.  (If the Reports were not prepared and filed on time, then they similarly weren’t placed in the file at the right time).  The forfeitures all have essentially the same set of facts as this one.  The Commission had previously notified the licensees that their stations were missing Form 398 Reports and offered the “opportunity” for the station to avoid the issue by simply voluntarily reverting to a secondary LPTV station. While this would have potentially avoided the issue of the missing Children’s Television Reports, it would have left the stations as secondary facilities and without the primary status protection afforded to Class A television stations and full power TV stations. Such protection is critically important in light of the recent grant of authority for incentive auctions, as only Class A and full power TV stations are allowed to participate in the auction and are explicitly protected in the legislation. (See our earlier discussion regarding the incentive auction authority here.) LPTV stations, which did not receive such protection in the statute, are simply secondary services meaning that they can be moved or modified as the Commission sees fit. That authority will likely come in handy if and when it comes time for the FCC to repack the television spectrum, as it will have greater flexibility in moving or changing protections for LPTV stations.

Rather than accepting the chance to revert to low power status, the stations in these cases corrected their oversight and filed the missing Form 398 reports.  Despite responding to the Commisison's earlier letters and following up to file the missing reports, however, the FCC nonetheless issued the hefty forfeitures. Recently, we wrote about a number of “Show Cause Orders" issued by the FCC directing 16 Class A television stations to respond and demonstrate why the stations shouldn’t be downgraded to LPTV status (see our earlier post here). The stations subject to those Show Cause orders apparently failed to respond to the FCC’s letter about missing children’s reports.  With yesterday's forfeiture, it appears there is no good choice for a station that overlooked the obligation to file the children's reports, and these fines serve as an important reminder of the obligations of Class A television stations. 

As we noted in our post last week, all Class A licensees would be well advised to review their FCC compliance efforts to avoid falling victim to the FCC's spectrum clearance process.  The FCC has stated clearly that Class A licensees are required to comply with many full power TV requirements, including the need to maintain a main studio and a public inspection file, to comply with children's programming requirements, political programming requirements, station identification requirements and Emergency Alert System rules. Failure to comply with any of these requirements could result in loss of Class A status.  While the fines issues yesterday are hefty, losing the station's Class A primary status could be even more costly. 

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The FCC has released 16 Show Cause Orders threatening to deprive a number of low power television (LPTV) stations of their Class A status for failure to file Children's Television Programming Reports.  These orders appear to be implementing a long-rumored get-tough policy on Class A TV stations, as the FCC prepares to clear portions of the TV spectrum to auction it for use by wireless broadband providers, in accordance with the authorizing legislation we wrote about last week. Class A stations are protected from interference like full power TV stations, while other LPTV licensees can be displaced from their current channels by new primary users - potentially including future wireless broadband auction winners. Therefore, if these Class A stations are downgraded to LPTV status, the FCC could displace them as needed for spectrum auctions.  If they retain their Class A status, they are protected like full-power TV stations, and the FCC must attempt to replicate their coverage in any repacking of the spectrum that may occur.

These 16 Show Cause Orders all have essentially the same set of facts as this one.  Specifically, all of the stations failed to file multiple Children's Television Programming Reports and failed to respond to FCC letters cautioning the stations that failure to file these reports could result in loss of Class A status.  As the FCC notes in all of the Show Cause Orders, Class A licensees are required to comply with many full power TV requirements, including the need to maintain a main studio and a public inspection file, to comply with children's programming requirements, political programming requirements, station identification requirements and Emergency Alert System rules. Failure to comply with any of these requirements could result in loss of Class A status.

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In addition to the normal FCC deadlines for routine filings, January brings the deadline for comments in a number of FCC proceedings, and a filing window for new FM applications.  For TV stations, the Commission recently extended to January 17 the Reply Comment deadline on its proposals (summarized here) for an online public inspection file.  Many public interest groups have supported the FCC's proposals to put the public file online, including the political file and new information concerning sponsorship identification information, while broadcasters have expressed concerns about the burden and practicality of an online file with all the information that the FCC is considering.  Comments are also due on January 17 on the related Notice of Inquiry looking into the adoption of a new form to document the public interest programming of TV broadcasters to replace the never-effective Form 355.  Comments deadlines on Petitions for Reconsideration of two other rulemaking decisions - on the adoption of rules allowing AM stations to use FM translators, and the Rural Radio proceeding - are due on January 4 with replies on January 17.  That the FCC only now sought comments on the 3 year old Reconsideration petitions in the AM translator proceeding is unusual, as the issue raised by the reconsideration petitions has also been incorporated in the recent FCC proceeding looking at the relationship between FM translators and LPFM opportunities.

We just reminded broadcasters of the new FM window, where applications for 119 new FM channels can now be filed between now and the January 12 deadline.  Broadcasters also need to remember to complete their Quarterly Issues Programs lists, and place them in their public file, by January 10.  As we've written, there are big fines for stations who forget to complete these reports and have to report their absence at license renewal time.  See our advisory on the Quarterly Issues Programs Lists, here, and also our advisory on Children's Television obligations, including Form 398, that needs to be filed at the FCC by January 10, along with a public file report documenting compliance with the limitations on commercial advertising in children's programming . 

For more information on many of the routine regulatory deadlines for broadcasters, see our Broadcasters Calendar for 2012 here.

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If your station engages in children's programming and maintains a website or web page directed to children under the age of 13, this case may be of interest to you. 

The operator of a website called Skid-e-Kids, a self-described “Facebook and MySpace for kids,” has learned that it is not enough merely to have a privacy policy that requires parental consent prior to obtaining personal information online from children under the age of 13. Such website operators must actually abide by that policy as well. The Federal Trade Commission (FTC) reinforced that lesson via an enforcement action and settlement with the company this week.

Skid-e-Kids (skidekids.com) advertises itself as “Safe, Fun and very educational.” Their target group is children ages 7-14. The Children’s Online Privacy Protection Act of 1998 (COPPA) and corresponding FTC rule require parental consent before children under the age of 13 can be requested or required to provide personal information online.

Skid-e-Kids had a Privacy Policy that “requires child users to provide a parent’s valid email address in order to register on the website.” In practice, however, that was not the case. Children were required to provide a birth date, gender, user name, password and email address prior to using the website. Once that information was provided, the child was automatically registered on the website. Worse still, Skid-e-Kids did not even request a parent’s email address and made no attempt to notify parents or obtain parental consent.

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The end of September marks the close of the Third Quarter of 2011, which brings two quarterly filing obligations for broadcast stations.  The first obligation is that by October 10 all radio and television stations, both commercial and noncommercial, must prepare and place in their public inspection file 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 that dealt with those issues. 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.  With the renewal cycle now in full-swing for radio stations and looming on the horizon for television stations, licensees are reminded to make sure their stations are meeting this obligation on a quarterly basis. 

Secondly, 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, 2011.  While technically, the deadline for filing the Form 398 with the FCC will roll to Tuesday, October 11th (because Monday is a Federal holiday, Columbus Day), given that the Reports must also be placed in the station's public inspection file within ten days after the end of the quarter, it would be best for stations to simply prepare and file their programming reports by October 10th to ensure they are timely. Our recent advisory is available here with all the details on the Children's Television Programming Reports.  By Oct. 10th, commercial stations should also prepare and place in their public inspection file the necessary quarterly certifications regarding compliance with the commercial limitations in Children's Programming. 

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If your station programs to children under the age of 13 or maintains a website or online presence directed to children under age 13, you should be aware of new rules proposed by the Federal Trade Commission (FTC) that will affect both the types of information you are allowed to collect from children and the manner in which it is collected.  The proposed rules, summarized here, would modify the Children's Online Privacy Protection Rule enacted by the FTC to enforce the Children's Online Privacy Protection Act (COPPA) enacted by Congress in 2000.

COPPA requires parental consent whenever personal information is collected from children under the age of 13.  The proposed rules, which would be the first changes made by the FTC since COPPA was enacted, are intended to reflect the recent popularity of social networking, smartphones and the availability of geolocation information.

Stations that have websites or apps dedicated to youth sports leagues or other children's activities could well be subject to these requirements, summarized in our recent Client Advisory available here.  Interested parties may file comments on the new rules by November 28, 2011.

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The advertising to children of food deemed unhealthy has been the subject of government concern for many years.  We wrote about the efforts of then-Senator Brownback to limit such ads - either by voluntary industry action or by government regulation.  These concerns led to the formation of a public-private task force to come up with voluntary actions to limit advertising unhealthy foods to children.  The FTC this week released a draft of that report - proposing prohibitions on advertising most unhealthy food to children that would be in place by 2016 (with certain additional restrictions becoming effective 5 years later).  These guidelines would apply not only to broadcast advertising, but also to marketing on the Internet and in many other media.  While the report talks about voluntary industry guidelines, the NY Times quotes some as asking just how voluntary such guidelines really would be - asking if the government might not step in to mandate compliance if industry was unsuccessful (see the Times article here, subscription may be required).  Comments on the FTC proposals are due on June 13, 2011.

The guidelines published by the FTC ask many questions about how to define what foods are considered unhealthy, and also about whether the timeline of 2016 for implementing a ban on unhealthy food advertising is reasonable (the later 2021 deadline would apply to certain restrictions on salt in food).  Advertising would be restricted for those up to 17 years of age, and extends to 20 categories of advertising including radio and TV, online ads, sweepstakes, ads in video games, and other marketing in traditional and digital media directed to children.  Broadcast programming that reaches an audience that is 30% children 2 to 11 would be deemed "targeted" to them, for children 12 to 17, the programming would be deemed targeted to children if there were a 20% representation of those age groups in the audience.  Internet ads would also use the 20% standard.

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UPDATE:  On March 23rd, the FCC granted a ten-day extension of the filing deadline.  Comments are now due April 28th, and Reply Comments are due by May 27th.

The FCC's recent item proposing the adoption of video description rules was published in the Federal Register today setting the deadline for Comments in the proceeding. The FCC subsequently extended the deadline, and Comments are now due by April 28th, with Reply Comments due by May 27th.  As we wrote about recently (here), the FCC has initiated a rule making proceeding to reinstate its prior video description rules with certain modifications, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (Act). The proposed rules would require large market broadcast affiliates of the top four national networks and most cable operators and DBS providers to provide programming with audio narrated descriptions of a television program’s key visual elements beginning as soon as first quarter 2012.  Davis Wright Tremaine previously summarized the Act in our earlier advisory available here.

Now, with today's publication of the Notice of Proposed Rule Making in the Federal Register, the date for comments has been set, and the FCC is moving quickly to implement the rules.  In addition to proposing to reinstate the rules previously adopted by the FCC, the item asks many practical implementation questions about refreshing market rankings, applicability of the rules to low power television, and what constitutes the “technical capability” to pass through video descriptions. In particular, the FCC seeks to refresh the list of the top 25 DMAs, as well as update the top five national nonbroadcast networks subject to the rule.  Interested parties may file comments with the FCC either in paper or electronically through the FCC’s Electronic Comment Filing System on or before April 28, 2011.  

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Yesterday, the FCC initiated a rule making proceeding to reinstate its prior video description rules with certain modifications, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (Act). The proposed rules would require large market broadcast affiliates of the top four national networks and most cable operators and DBS providers to provide programming with audio narrated descriptions of a television program’s key visual elements beginning as soon as first quarter 2012.  Davis Wright Tremaine previously summarized the Act in our earlier advisory available here.

The Notice of Proposed Rule Making (NPRM) takes the first step toward restoring the video description regulations that the FCC previously adopted in 2000, but which were subsequently vacated by the U.S.  Court of Appeals for the D.C. Circuit. Now with explicit Congressional authorization, the FCC seeks to restore the video description rules by Oct. 8, 2011, as required by the Act. The FCC proposes a quick implementation, with the video description and pass-through rules beginning Jan. 1, 2012. The most significant elements of the reinstated video description rules are: 

• Broadcast affiliates of the top four national networks—ABC, CBS, Fox, and NBC—located in the top 25 television markets must provide 50 hours per calendar quarter of prime time and/or children’s programming with video descriptions.
• The top five national nonbroadcast networks must provide 50 hours per calendar quarter of prime time and/or children’s programming with video descriptions. The proposed rule would be applied to multichannel video programming distributors (MVPDs), including cable operators and DBS providers with 50,000 or more subscribers, and presumably then be applied to the top five networks through affiliation agreements.
• “Live” and “near live” programming is exempt from the rules.
• In order to count toward the requirement, the programming must not have been aired previously with video descriptions, on that particular broadcast station or MVPD channel, more than once.
• All broadcast stations, regardless of market size or affiliation, and all MVPDs, regardless of the number of subscribers they serve, must “pass through” video description when such descriptions are provided and when the station or program distributor has the technical capability to do so.

In addition to proposing to reinstate the rules previously adopted by the FCC, the item asks many practical implementation questions about refreshing market rankings, applicability of the rules to low power television, and what constitutes the “technical capability” to pass through video descriptions. In particular, the FCC seeks to refresh the list of the top 25 DMAs, as well as update the top five national nonbroadcast networks subject to the rule. In determining the top five nonbroadcast networks, the FCC proposes to exclude from the top five any nonbroadcast network that does not provide, on average, at least 50 hours per quarter of prime time non-exempt programming, i.e., programming that is not live or near-live. The NPRM specifically seeks comment from any network that believes it should be excluded from the top five covered networks because it does not offer enough pre-recorded prime time or children’s programming.

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On Friday, the FCC released seven Notices of Apparent Liability for violations of children's programming rules, proposing forfeitures (i.e. fines) of $25,000 to $70,000 per station.  Most of the violations cited were overages of the commercial limits, which restrict stations to broadcasting 10.5 minutes per hour of commercial material during childrens programming on weekends and 12 minutes per hour on weekdays.  Many of these overages were for durations of 15 seconds each.  In one case, the FCC found a Pokemon program to be a program length commercial (discussed below) where a Pokemon game card with the letters "MON" was displayed for one second in a Nintendo GameBoy commercial during the show.  In addition to overages of the commercial limits, other cited violations included failing to provide program guide publishers with information regarding the target child audience of core programs;  failing to update the public file regarding compliance; and failing to publicize the existence and location of the station's children's television programming reports, in addition to the program length commercial issue described above. 

The largest fine, for $70,000, was issued in a case where most of the violations were for "program length commercials", in which a commercial for a memorabilia website shown during a "Yu-Gi-Oh" television program contained a "very brief" reference to Yu-Gi-Oh trading cards.  A program length commercial occurs when an advertisement contains a mention of a character or product that is associated with the program in which the ad appears.  In these situations, the Commission fears that children will not be able to perceive the difference between the programming and the commercial, and thus treats the entire program as a commercial.  In so doing, the station is considered to have exceeded the commercial limits by the entire length of the program less the number of commercial minutes allowed.  This is done even if the commercial image of the character or other program-related material is fleeting.  We've written about the difference in treatment between a commercial overage and program length commercial before, and this case makes clear just how seriously the Commission considers the latter and how costly this can be to the offending station.

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Last week, the FCC issued fines to Class A TV stations which seem to have forgotten the requirements for such stations. Class A TV stations were low power television stations on which, early in the decade, Congress decided to confer "protected" status, meaning that they could not be knocked off the air by a new full-power TV station or by a change in the facilities of a full-power station.  LPTV stations, by contrast, are "secondary services," meaning that they can be knocked off the air by changes in primary stations.  Class A stations were given this protection if they could show that they were providing local programming, had a local studio, and otherwise complied with all the operating requirements that a full-power station station has to meet - including a manned main studio, children's television obligations, EEO reporting, and public file requirements.  Cases released last week remind these stations that they must still meet all requirements for full power stations, as the FCC fined Class A stations for main studio, public file and children's television violations.

In one case, the FCC fined a station $1000 for violations of the main studio, main studio staffing and public file rules.  The fine was originally set at $24,000 but, as the licensee demonstrated that it had no ability to pay the higher fine, the penalty was reduced to $1000.  The FCC had tried to inspect the station, and was unable to obtain access to the transmitter site.  The Commission staff then tried to find the station's main studio, and found that no one answered the phone number listed for the station, there did not appear to be anyone at the address on file for the main studio location, and there was of course no access to the public file.  As Commission rules require that stations have main studios in their principal service areas that are manned during normal business hours, and that stations have their public file at this location, the fine was issued.

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The FCC today issued a Forfeiture Order imposing a $30,000 fine on the licensee of three television stations for the stations' failure to publicize the existence and location of the Children's Television Reports for the Stations.  Even at a rate of $10,000 per station, this fine is significant and should serve as a loud, clear reminder to all television stations to publicize the existence and location of their FCC Form 398 Children's Television Reports.  The FCC considers the reports, which are filed quarterly with the FCC, as an important resource for parents and the community.  And as is clear from today's decision, the FCC takes the requirement that stations inform viewers about the existence of these reports very seriously.  While stations make a certification each quarter as part of the Form 398 that they are publicizing the reports and informing folks about where copies can be obtained, stations should take a moment to confirm that they are, in fact, following this regulation.

In the case decided today, the licensee itself had brought the issue to the Commission's attention as part of its license renewal application.  In connection with its renewal filing, the licensee discovered that it had inadvertently failed to publicize the existence and location of the reports during the entire license term.  As required, it disclosed that issue on its renewal application.  Despite the fact that the violation was voluntarily disclosed and was claimed to be based on a misunderstanding, however, the Commission ignored the request for a reduction of the proposed forfeiture and hit the station with a fine of $10,000 per station, finding a repeated and willful violation of the Commission's Rules. 

Thus, television stations should make sure that they are following this rule by running periodic spots on the station, placing information and links on their websites, and publicizing the Form 398 Reports in any other fashion they see fit.  While the Commission has provided little, if any, guidance over the years about exactly how stations should publicize this information, or how often spots should be run on the station, what is abundantly clear from today's decision is that stations need to do something throughout the course of their license term to make viewers in their community aware that the Children's Programming Reports exist and that they are available for public review, both on the Commission's website and in the station's public inspection file.  With changes in personnel, software, and equipment that inevitably occurs at stations over time, this is a good time for stations to confirm that their procedures are still in place and are actually being followed to publicize the Children's Reports.  A full copy of today's decision is available here.

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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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This article is no longer available. For more information on this topic, see February Legal Deadlines for Broadcasters - Online Public File, Review of Incentive Auction Comments, Filing Deadline for FM Auction, and Lots of Renewals and EEO Public File Reports

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This article is no longer available. For more information on this topic, see  FCC Deadlines in January - Quarterly Issues Programs Lists, Children's Program Reports, Comments on TV Online Public File and Public Interest Obligation Proposals, FM Window and More

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This article is no longer available. For more information on this topic, see FCC Deadlines in January - Quarterly Issues Programs Lists, Children's Program Reports, Comments on TV Online Public File and Public Interest Obligation Proposals, FM Window and More

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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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This article is no longer available. For more information on this topic, see  FCC Deadlines in January - Quarterly Issues Programs Lists, Children's Program Reports, Comments on TV Online Public File and Public Interest Obligation Proposals, FM Window and More

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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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This article is no longer available. For more information on this topic, see A Summary of Privacy Issues for Broadcasters and Other Media Companies - A Presentation to the Texas Association of Broadcasters 

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This article is no longer available. For more information on this topic, see FCC Deadlines in January - Quarterly Issues Programs Lists, Children's Program Reports, Comments on TV Online Public File and Public Interest Obligation Proposals, FM Window and More  

 

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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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This article is no longer available. For more information on this topic, see Big Fines for Public File Violation that Escalated 

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This article is no longer available. For more information on this topic, see FCC Releases New EAS Manuals Explaining Obligations for Broadcasters and Video Providers 

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This article is no longer available. For more information on this topic, see FCC Initiates Inquiry Into Children's Television Rules

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This article is no longer available. For more information on this topic, see Telco Merger Setting a Model for the Ownership Rules Process? 

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