Children's Programming and Advertising

Notice was published in the Federal Register today of the FCC’s changes in the children’s television rules – setting the effective date for most of those new rules as September 16. The elimination of the obligation to air three hours of children’s educational and informational programming for each digital multicast channel will expire on that

The FCC at its open meeting last week took two actions important to TV broadcasters – modifying its children’s television rules and changing the process by which TV stations give notice to MVPDs of their must carry or retransmission consent elections.  On the children’s television rules, the FCC largely adopted the proposals in their draft order, which we summarized here.  The major additions to the final version of the Order (here) were the individual statements of the Commissioners, where the Republicans supported the decision as a common-sense reaction to changing market conditions (including an increase in the number of over-the-air stations since the rules were initially adopted, as well as all sorts of new media competition), while the Democrats worried that moving some long-form educational and informational programming addressed to children off the broadcaster’s primary program streams, and the replacement of some of that programming with short-form programming, would have an adverse impact on children – particularly children in lower-income households with less access to digital alternatives.  The new rules will become effective after their publication in the Federal Register.  Comment dates on the Further Notice of Proposed Rulemaking to consider whether TV broadcasters can be relieved of some children’s television obligations by supporting the development of educational and informational programming on other TV stations will also be determined after Federal Register publication.

Also adopted at the meeting was a Report and Order setting out new rules allowing TV broadcasters to give notice of their next set of must-carry or retransmission consent notifications electronically rather than by certified mail, as is currently required.  The Order sets out a process where, before the next election deadline in October 2020, broadcasters need to include in their online public files a statement as to whether they have elected must-carry or retransmission consent on MVPDs in their market (and, if the station has elected one carriage option for all systems, the notice can be as simple as “Station WXYZ has elected must-carry on all cable systems in the Anytown DMA”).  If the station decides to change that election for any MVPD, they notify the MVPD of the change by email.  MVPDs must register a contact person for the receipt of such notices in their public files and in the FCC’s COALS database, so that broadcasters know who to contact if they are planning to change their election.  The broadcaster emails its notice of a changed election to the cable system (with a copy to a new FCC email address) and puts a copy of the election in its online public file.  The cable system is supposed to electronically acknowledge the receipt of the notice (if it does not, the broadcaster is supposed to call the COALS-registered person at the registered phone number to make sure that the notice has been received – but if there is no response, the FCC and public file notices will suffice.  Of course, not having this information in a TV station’s public file would be a violation of the public file rules.
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July is an important month for regulatory filings – even though it is one of those months with no FCC submissions tied to any license renewal dates. Instead, quarterly obligations arise this month, the most important of which will have an impact in the ongoing license renewal cycle that began in June (see last month’s update on regulatory dates, here).  Even though there are no renewal filing deadlines this month, radio stations in Maryland, Virginia, West Virginia and DC must continue their on-air post-filing announcements on the 1st and 16th of the month.  On these same days, pre-filing announcements must be run by radio stations in North and South Carolina, who file their renewals by August 1.  Stations in Florida and Puerto Rico, who file on October 1, should be prepared to start their pre-filing announcements on August 1.  See our article here on pre-filing announcements.

Perhaps the most important date this month is July 10, when all full power AM, FM, Class A TV and full power TV stations must place their quarterly issues/programs lists in their online public inspection files.  The issues/programs list should include details of important issues affecting a station’s community, and the station’s programming aired during April, May, and June that addressed those issues.  The list should include the time, date, duration and title of each program, along with a brief description of each program and how that program relates to a relevant community issue.  We have written many times about the importance of these lists and the fact that the FCC will likely be reviewing online public files for their existence and completeness during the license renewal cycle – and imposing fines on stations that do not have a complete set of these lists for the entire license renewal period (see, for instance, our articles here, here and here).  So be sure to get these important documents – the only official documents that the FCC requires to show how a station has met its overall obligation to serve the public interest – into your online public file by July 10. 
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In anticipation of its July 10 open meeting, the FCC last week released its draft Order making changes to its rules requiring television stations to broadcast specific amounts of educational and informational programming directed to children.  The current rules require that stations air an average of three hours of such programming every week for every channel of programming they broadcast.  The current rules also impose all sorts of restrictions on programming for it to be considered “Core Programming” that can be counted toward meeting the three-hour per channel obligation.  The draft Order, if adopted at the July meeting, would ease some of the restrictions and, perhaps most importantly, eliminate the requirement that, for each multicast channel, three hours of unique educational programming directed to children be broadcast.

The Commission surveyed the current TV marketplace and found that, in the 15 years since it adopted the requirement that there be 3 hours of programming per multicast channel, much more educational and informational programming for children has become available – through public broadcasting and through new programming sources, including those delivered online.  Providing those three extra hours of educational and informational programming imposed significant cost burdens on broadcasters (even a weather radar channel carried with it a three-hour children’s programming obligation) for seemingly little benefit given the availability of so much other kids’ programming elsewhere.  The FCC draft Order also would change some of the specific requirements for station’s primary video channel.
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The license renewal cycle, about which we have been warning broadcasters for at least the last year (see, for instance, our posts here, here and here), is now upon us. June 3 is the filing deadline for license renewals for radio stations in Maryland, DC, Virginia and West Virginia. Radio stations (including FM translators and LPFMs) licensed to any community in any of those states should be filing their renewal applications in the FCC’s Licensing and Management System (LMS) by Monday’s deadline. The new FCC forms, as we wrote here, have been available since early May, so the renewal and the accompanying EEO program report should either be on file or ready to be filed in LMS by the June 3 filing deadline. These stations should also be running their postfiling license renewal announcements on the 1st and 16th of June, July and August. Radio stations in the next renewal group, in North and South Carolina, should begin their license renewal pre-filing announcements on June 1st and 16th as well, informing the public about the upcoming filing of their renewals due on August 1. See this article on pre-filing announcements for more information.

In addition, broadcasters in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia that are part of an Employment Unit with 5 or more full-time employees should also be preparing to add to their online public inspection file their Annual EEO Public File Report. This report is due to be added to their online public files by June 1. A link to this report should also be placed on the station’s website, if it has a website.
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Questions about regulations from Washington don’t disappear just because you are spending time in Las Vegas, and this week’s NAB Convention brought discussion of many such issues. We’ll write about the discussion of antitrust issues that occurred during several sessions at the Convention in another post. But, today, we will report on news about more imminent actions on other issues pending before the FCC.

In his address to broadcasters at the conference, FCC Chairman Pai announced that the order on resolving translator interference complaints has been written and is now circulating among the Commissioners for review. The order is likely to be adopted at the FCC’s May meeting. We wrote here about the many suggestions on how to resolve complaints from full-power stations about interference from FM translators. While the Chairman did not go into detail on how the matter will be resolved, he did indicate that one proposal was likely to be adopted – that which would allow a translator that is allegedly causing interference to the regularly used signal of a full-power broadcast station to move to any open FM channel to resolve the interference. While that ability to change channels may not resolve all issues, particularly in urban areas where there is little available spectrum, it should be helpful in many other locations.
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March is one of those unusual months in the broadcast regulatory cycle, where there are no routine EEO public file obligations, and no quarterly filing obligations or other regularly scheduled regulatory deadlines.  That means that my tardiness in publishing this article before the start of the month did not miss anything important.  But, starting next month, there will be a whole new set of deadlines about which broadcasters need to be concerned, as April 1 is when the first pre-filing announcements for broadcast license renewals will begin, signaling the start of the 3-year long radio renewal cycle. The 3-year TV license renewal cycle will begin at the same time next year.

Radio broadcasters in Maryland, Virginia, West Virginia and the District of Columbia will be the first to file their renewal applications – and they will need to start running their “pre-filing” notices on their radio stations beginning on April 1, in anticipation of a June renewal filing (renewal applications to be filed no later than June 3, as June 1 is a Saturday).  The FCC has posted a helpful guide to the times that these notices need to run, and a model for the text of these notices, here (although the model text is now outdated, in that it does not acknowledge that stations now have online public files; the FCC has a pending proceeding to modify these public notices that one would hope would be resolved soon – see our articles here and here for details).  Stations in the Carolinas begin their pre-filing announcements two months later, with stations in other states to follow at 2-month intervals after that.  The schedule for renewals is on the FCC website here, and the pre-filing announcements begin two months before the renewal-filing deadline.
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When is your website or app covered by the Children’s Online Privacy Protection Act (“COPPA”) and the FTC’s COPPA Rule?  Although there are gray areas under COPPA, one clear way to fall under this law is to know that you’re collecting information from children under the age of 13 online.  That’s part of what landed Musical.ly, now known as TikTok, in trouble with the FTC – including a record-setting COPPA fine of $5.7 million.  COPPA isn’t limited to the kinds of video social network apps that Musical.ly provides; broadcasters’ websites and apps may end up falling under COPPA.

According to the FTC’s complaint, Musical.ly knew that it was collecting information from children under 13 (COPPA doesn’t apply to anyone else) for several reasons.  For instance, press articles described the popularity of Musical.ly among under-13 users, the company received hundreds of complaints from parents trying to close their kids’ accounts, and the company itself provided guidance to parents regarding their children’s usage of the app. 
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The FCC this week launched an inquiry into whether the TV Parental Guidelines and the organization that oversees these ratings provide accurate information to viewers as to which TV programs are appropriate for children. The FCC released a Public Notice to initiate the inquiry at the direction of Congress in the recently passed Consolidated Appropriations Bill – the Bill which ended the threat of a second government shutdown. That Bill contained a number of provisions directing various government agencies to take specific actions, including a direction to the FCC to provide a report to Congress in 90 days on the “extent to which the rating system matches the video content that is being shown” and whether the TV Parental Guidelines Oversight Monitoring Board (which oversees the ratings system) has the ability to address public concerns about the ratings. With the report due to be submitted to Congress by May 15, the FCC has asked for public comment on an expedited basis, with comments due March 12, and replies due just a week later on March 19.

The Board was established by a voluntary industry initiative approved by the FCC following a Congressional mandate for V-Chip technology in the Telecommunications Act of 1996. For the V-Chip to work, programs have to be rated. The ratings that resulted are familiar to most TV viewers and range from TV-Y programming appropriate for all children to TV-MA, appropriate only for mature audiences. Programs are also rated for Violence (“V”), Fantasy Violence in programming for older children (“FV”), Sexual Content (“S”), Suggestive Dialogue (“D”) and Strong Language (“L”). These ratings are applied to most TV and cable programming except news, sports, and ads. Based on the claims by interest groups that the ratings do not accurately describe the programming, Congress issued this directive to the FCC. What questions does the FCC ask in its request for comments from the public?
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In recent months, there have been many calls to regulate e-cigs, and potentially to regulate the marketing of all sorts of vaping products, including a call last week by an FCC Commissioner in an op-ed article in USA Today.  As we wrote several months ago, these suggestions have been based in the fear that increased promotion of vaping products have led to an increase in tobacco use among children.  While the FDA has been taking efforts to crack down on flavored vaping products to reduce their appeal to kids, the makers of e-cigs still advertise, including on radio and TV.  And those advertisements bring us frequent questions about whether the FCC has rules about advertising these products.  So far, the FCC has had no real role in regulating these products.  In fact, one wonders if it really has any authority to take action against the advertising of e-cigs without Congressional action.

So far, all the limits on e-cig advertising have been imposed by other agencies – principally, the FDA.  The FDA requires a tag on all vaping ads, stating that these products contain nicotine, which is an addictive substance (see our articles here and here for more details about that requirement).  And these ads should not claim health benefits for vaping.  Given the FDA’s concern about children, any ads should also stay out of programming with a large audience of children.  Could the FCC itself do more?
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