Children's Programming and Advertising

We typically publish our article about upcoming regulatory dates before the beginning of each month, but this month, the looming FCC shutdown and determining its effect on filing deadlines pushed back our schedule. As we wrote on Friday, the effect of the shutdown is now becoming clear – and it has the potential to put on hold a number of the FCC deadlines, including the filing of Quarterly Children’s Television Reports due on January 10 and the uploading of Quarterly Issues Programs lists, due to be added to station’s public inspection files on January 10. The FCC-hosted public inspection file database is offline, so those Quarterly Issues Programs lists can’t be uploaded unless the budget impasse is resolved this week. Certifications as to the compliance of TV stations with the commercial limits in children’s television programs would also be added to the public file by January 10 – if it is available for use by then. While these and other dates mentioned below may be put on hold, there are deadlines that broadcasters need to pay attention to that are unaffected by the Washington budget debate.

We note that the FCC’s CDBS and LMS databases are up and operating, though most filings will be considered to be submitted the day that the FCC reopens. As the databases are up and operating, many applications can be electronically filed – so TV stations might as well timely upload their Children’s Television Reports on schedule by January 10, to avoid any slow uploading that may result from overloading of the FCC’s system as the FCC reopens. Other FCC deadlines are unaffected by the shutdown – most notably, as we wrote on Friday, those that related to the repacking of the TV band following the TV incentive auction. The FCC has money to keep its auction activities operating so staff are working to keep the repacking on track. Deadlines coming up for the repacking include a January 10th deadline for stations affected by the repacking to file their Form 387 Transition Progress Report. Auction deadlines proceed whether or not the FCC is otherwise open for business.
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While the holidays may be upon us, there is no rest in the broadcast regulatory world. December 1 brings routine EEO public file report obligations for radio and television station employment units with 5 or more full-time employees for stations located in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont. Stations in those states need to upload their EEO Public Inspection file report to their online public file by December 1, reporting on their outreach efforts for employment openings at their stations in the prior year, as well as their non-vacancy specific outreach initiative (i.e. the FCC’s EEO “menu options” where broadcasters report on efforts they have taken to educate the public about broadcast employment opportunities and to train their employees to assume more important employment roles at their stations). See our post here for more on the EEO obligations.

TV stations with 5 or more employees located in any of the New England states have the additional obligation to file their FCC Mid-Term EEO Report – due on December 3 as the 1st is a Saturday. This report, filed on FCC Form 397, provides the FCC with the last two years’ Public File Reports, and a contact person at your stations to be contacted with EEO questions. While the FCC is considering elimination of these reports as most of the required information is already in a station’s online public file (where you should have all EEO public inspection file reports back to the date of the station’s last license renewal filing), the form is still required.
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October is one of the busiest months on the broadcast regulatory calendar, as it includes a confluence of routine EEO filing requirements, quarterly filing requirements for Children’s Television Reports, public file uploading for all stations for their Quarterly Issues Programs Lists, a Nationwide EAS test, and comment dates in many FCC proceedings. Make sure that you are aware of these upcoming deadlines, particularly ones that may impact your station’s operations.

On October 1, Annual EEO Public Inspection File Reports must be uploaded to the online public inspection filed by Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands that are part of an Employment Unit with 5 or more full-time employees. There is an additional obligation for Television Employment Units with five or more full-time employees in Alaska, American Samoa, Guam, the Mariana Islands, Oregon, and Washington which must file Mid-Term EEO Reports with the FCC by October 1.
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E-cig advertising has been one of those areas where broadcasters and other media companies have been looking warily at the potential for regulatory intervention. So far, as we wrote here, the FDA has only required general disclosures that “e-cigs contain nicotine and that nicotine is an addictive chemical” – an obligation that took

While September is one of those months with neither EEO reports nor Quarterly Issues Programs or Children’s Television Reports, that does not mean that there are no regulatory matters of importance to broadcasters. Quite the contrary – as there are many deadlines to which broadcasters should be paying attention. The one regulatory obligation that in recent years has come to regularly fall in September is the requirement for commercial broadcasters to pay their regulatory fees – the fees that they pay to the US Treasury to reimburse the government for the costs of the FCC’s operations. We don’t know the specific window for filing those fees yet, nor do we know the exact amount of the fees. But we do know that the FCC will require that the fees be paid before the October 1 start of the next fiscal year, so be on the alert for the announcement of the filing deadline which should be released any day now.

September 20 brings the next Nationwide Test of the EAS system, and the obligations to submit information about that test to the FCC. As we have written before (here and here), the first of those forms, ETRS Form One, providing basic information about each station’s EAS status is due today, August 27. Form Two is due the day of the test – reporting as to whether or not the alert was received and transmitted. More detailed information about a station’s participation in the test is due by November 5 with the filing of ETRS Form Three. Also on the EAS front, comments are due by September 10 on the FCC’s proposal to require stations to report on any false or inaccurate EAS reports originated from their stations. See our articles here and here.
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It may be time for summer vacations, but the FCC seemingly never rests, so there are a number of important dates of which broadcasters need to take note. By August 1, EEO Annual Public File Reports are due to added to the public files of Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in California, Illinois, North Carolina, South Carolina, and Wisconsin, if those stations are part of an Employment Unit with five or more full-time employees. TV stations in California have the added requirement that they submit an EEO Mid-Term Report with the FCC by that same date. While the FCC last year simplified EEO recruiting, it still enforces the EEO rules, as evidenced by an admonition that was issued to a TV station at the end of last week, and the fines imposed on radio stations late last year. So don’t forget these obligations (especially as the enforcement of these rules will soon be handled by the FCC’s Enforcement Bureau, rather than the Media Bureau, suggesting that there will be more enforcement of those rules – see our article here).

On other matters, there are numerous open FCC proceedings in which broadcasters may want to participate. Comments are due on August 6 on the FCC’s rulemaking proposal to adopt simplified rules for processing complaints of interference by FM translators to full power stations. See our articles here and here for details on that proposal.
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The FCC’s Notice of Proposed Rulemaking on Children’s Television has been published in the Federal Register, setting the dates for comments on the questions that the FCC asks about changing the rules – particularly those rules dealing with educational and informational programming directed to children. Comments are due September 24, with replies due October 23. See the FCC Public Notice on these comment dates for more information. With the dates now set, it is worth reviewing the questions that the FCC asks about whether changes in the video marketplace require that the rules for educational and informational programming be changed.

The rules currently require that a television station broadcast an average of three hours per week of “core” educational and informational programming directed to children 16 and under to avoid special scrutiny by the FCC at license renewal time. Core programming must run between 7 AM and 10 PM, and must be aired at regularly scheduled times in blocks of at least half an hour. For stations that multicast, each multicast stream has an independent 3 hour per week obligation, though the required children’s programming for one multicast channel can run instead on another multicast channel (or on the station’s main channel) as long as it reaches a comparable MVPD audience. What changes are being considered?
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There was lots of news out of the FCC yesterday that will give us issues to write about for weeks to come. Here are some highlights. At its open meeting, the FCC adopted a Notice of Proposed Rulemaking on potentially reforming the children’s television rules – including a review as to whether the current requirement that regularly scheduled programs of 30 minutes in length are the only means to meet the obligation to broadcast 3 hours of educational and informational children’s programming each week for each stream of free over-the-air programming broadcast by a station without facing heightened FCC scrutiny. The rulemaking will also look at whether all kid’s programming obligations could be met by broadcasts on a single multicast stream or through other efforts. The FCC Press Release on the action is here, and and the text of the notice is here.

On EAS, the FCC took actions to strengthen the reliability of the EAS system by allowing real EAS tones to be used in PSAs to promote the system, subject to certain safeguards, and to allow for testing of the EAS system using “live codes” with appropriate warnings and disclaimers. The order also requires the reporting of false emergency messages that may be sent out. The FCC Press Release on that item is here, and we will post a link to the full text when it is available.
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July brings the obligation for each full-power broadcaster to add a new Quarterly Issues Programs List to their online public inspection file. These reports, summarizing the issues facing each station’s community of license in the prior three months and the programs broadcast by the station to address those issues, must be added to the public file by July 10. As we wrote here, these reports are very important – as they are the only documents legally required by the FCC to show how a station served the public interest. With the online file, these reports can be reviewed by anyone with an Internet connection at any time, which could be particularly concerning for any station that does not meet the filing deadline, especially with license renewals beginning again next year.

Also to be filed with the FCC by July 10, by full-power and Class A TV stations, are Quarterly Children’s Television Reports. While the FCC announced last week that it will be considering a rulemaking proposal at its July meeting to potentially change the rules (see its proposed Notice of Proposed Rulemaking here), for now the requirements remain in place obligating each station to broadcast 3 weekly hours of programming designed to meet the educational and informational needs of children for each free program stream transmitted by the station. Also, certifications need to be included in each station’s online public file demonstrating that the station has complied with the rules limiting the amount of commercialization during children’s television programs.
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Last week, Aaron Burstein of our law firm and I conducted a webinar for several state broadcast associations on legal issues in digital and social media advertising. As broadcasters become more active in the digital world, whether it be through social media platforms like Facebook and Twitter, or by posting their content online through