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.

Radio license renewals should have been filed by radio stations in Iowa and Missouri, and TV stations in Florida, Puerto Rico and the Virgin Islands.

And pre-filing announcements for renewals should have begun for stations with license renewals due at the beginning of December, including TV stations in Alabama and Georgia, and radio stations in Colorado, Minnesota, North and South Dakota and Montana.

Finally, noncommercial radio broadcasters in Iowa and Missouri, and noncommercial TV stations in Florida, Puerto Rico, the Virgin Islands, Alaska, American Samoa, Guam, Hawaii, the Marianas Islands, Oregon, Saipan, and Washington State all need to have filed Biennial Ownership Reports by October 1.

Lots of regulatory deadlines.  With the political broadcasting obligations many broadcasters are dealing with, and with the FCC's recent action on the incentive auction, in October, broadcasters should be focusing on Washington. 

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. 

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.

All Class A licensees would be well advised to review their FCC compliance efforts to avoid becoming victim to the FCC's spectrum clearance process, in which downgrading Class A stations to LPTV status may play a significant role.  In spectrum-congested markets, it could well be a matter of life or death, as LPTV stations may not survive spectrum repacking and a wireless auction, while Class A TV stations will remain protected.  Watch for letters from the FCC questioning your station's Class A status, as the failure to respond to an FCC inquiry in and of itself may subject the station to liability as well as a loss of that status.

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.

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.

This week, Jones O. Godwin, operator of the Skid-e-Kids website, entered into a Consent Decree, agreeing to comply with COPPA and to delete personal information obtained from children without parental consent. Godwin was also required to pay a civil penalty of $100,000, all but $1,000 of which was suspended pending compliance with COPPA and the Consent Decree for the next ten years. The Consent Decree also requires Godwin to retain an independent third party to assess the site’s compliance with COPPA for the next five years.

This case acts as a reminder that posting a COPPA-compliant policy is not enough. Stations that maintain websites or web pages directed to children under age 13 must actually obtain the necessary parental consent before proceeding to collect personal information from children.

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. 

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.

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.

The FTC public notice also announces a Forum for the discussion of these issues, to be held on May 24, 2011.  Interested parties should consider comments in writing or attendance at the forum or both - as these proposals may well have a significant impact both on what food is marketed to children - and what advertising we see in the media in the future. 

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.  

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.

Finally, the FCC seeks comment on how to accommodate digital television stations that multicast multiple programming streams (i.e., whether it must include descriptions on all four streams), including if a station carries a top-four national network on another stream, and whether it should adopt quality standards for video descriptions, assuming that it has the authority to do so.

Comments in this proceeding will be due 30 days after the NPRM is published in the Federal Register, with Reply Comments due 60 days after publication.  Interested parties may file comments with the FCC either in paper or electronically through the FCC’s Electronic Comment Filing System. 

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.

While the FCC has always taken violations of children's programming rules very seriously, the Commission has now taken the additional step of increasing forfeitures above the base forfeiture amounts set forth in the Forfeiture Policy Statement as a means of deterring future violations.  Since human error is no shield from a forfeiture, TV stations and cable programmers must increase their vigilance against violations of all aspects of the children's programming rules.

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.

These cases remind Class A licensees to remember their obligations as primary stations.  Pay attention - or fines may be coming your way.

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.

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. 

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. 

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. 

At the same time, the states have been actively looking at regulating the media in some way or another in the name of the protection of children.  There have been bills introduced in legislatures around the country, suggesting regulation against unhealthy food ads (which, for the most part, have stalled by definitional issues), and privacy regulations.  Our firm recently published an advisory on this new law in Maine (see the Davis Wright Tremaine advisory here) which prohibits all direct marketing to minors under the age of 18, with no exceptions.  Apparently, even with parental consent, such marketing is prohibited.  While this law may be challenged, until its legality is determined, broadcasters with Kids clubs or frequent listener lists should be careful to insure that all members are 18 or older.

Clearly, concerns about what children see and hear are driving regulatory and legislative activities.  Broadcasters and digital media companies need to be alert to these activities, and adjust their programming to respond to any new regulatory requirements.

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. 

• 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.