By October 10, 2019, all radio and television broadcast stations, both commercial and noncommercial, must prepare a list of important issues facing their communities of license and the programs aired during July, August and September dealing with those issues. All TV stations and radio stations must post these documents to the Federal Communication Commission’s (FCC) online public file database.

• The FCC’s online public inspection file database (OPIF) may be accessed through this link.

Also by October 10, all commercial full power and Class A TV stations must prepare and file the Children’s Programming Report on FCC Form 398 for the (prorated—see below) third quarter of 2019, and post online documentation demonstrating compliance with the limits on commercial matter aired during children’s programming.

Although cable TV systems do not have any specific quarterly public file requirements, cable systems with more than 1,000 subscribers must upload any "new" public file documents to OPIF, except for political file documents that must be uploaded only by systems with more than 5,000 subscribers. The cable public file documents include those documents that show compliance with the commercial limits in children’s programming, as described more fully below.

I. Issues/Programs Lists

All radio and TV broadcast stations must prepare Issues/Programs lists within 10 days after the end of each quarter. The quarterly Issues/Programs list is station specific and, therefore, each station should have its own list, describing programming broadcast on that station addressing issues of importance to its viewers or listeners.

The quarterly Issues/Programs list should reflect the "station’s most significant programming treatment of community issues." Thus, a station needs to identify issues of importance to its community of license that it has determined to be of significance during that quarter and the programming that was responsive to those issues.

In the past, the FCC had mandated identification of 5- to 10-issues per quarter. While the FCC no longer requires identifying a specific number of issues, that range remains a good target.

Although broadcasters have discretion in deciding the specific programs addressing the identified issues, all stations must broadcast some programming doing so. Each program must be identified, including the title and length of the program, as well as the time and date on which it was aired.

The description should include a brief summary of the contents of the program sufficient to demonstrate how the program addressed the identified issue. Failure to have a complete and timely set of quarterly Issues/Programs lists can lead to significant fines at license renewal time or following an FCC inspection.

Even stations that are off the air pursuant to Special Temporary Authority from the FCC must still prepare an Issues/Programs list stating as such (if off air for the entire quarter), or provide a list of programs for that portion of the quarter for which they were broadcasting.

II. Children’s TV Programming Reports

As we recently advised, the FCC has made significant changes to the Children’s Programming requirements. Most of these changes went into effect on September 16, 2019, including the obligation to file annual rather than quarterly children’s programming reports. However, the last quarterly reports must still be filed by October 10, 2019, reporting on prorated compliance with the former rules through September 15, 2019.

Accordingly, all commercial full power and Class A TV stations must still prepare and file a Children’s Programming Report on FCC Form 398. For the prorated third quarter of 2019, Form 398 must be filed electronically at the FCC by October 10, 2019.

Under the Commission’s guidelines, stations are required to air an average of at least three (3.0) hours of "core" children’s programming per week or 156 hours annually. The former guidelines (applicable through September 15) required three hours of core programming per week per digital stream, and that requirement still applies through September 15.

(The requirement for additional core programming attributable to multicast streams has been eliminated as of September 16, 2019.)

For the purpose of clarity, the FCC has stated that a station should have aired 33 hours of core programming applicable to its primary broadcast stream for the prorated third quarter of 2019, which is between July 1 and September 15, 2019.

Core children’s television programming is defined as programming that is:

• (1) Designed to meet the educational and informational needs of children aged 16 years or younger as one of its significant purposes;
• (2) At least 30 minutes in length;
• (3) Identified throughout the program with the educational/informational (E/I) symbol or "bug";
• (4) Aired weekly at a regularly scheduled time between the hours of 6 (formerly 7) a.m. and 10 p.m.; and
• (5) Identified at the time of airing and to program guide publishers as being "core programming" designed for a specific age range of children.

For this quarter (through September 15), the amount of children’s programming required for multicast DTV streams increases in proportion to the additional hours of free programming offered on the multicast channels, up to three additional hours per week for each multicast stream. Specifically, for every 28 hours or portion thereof of free video programming per week provided on a digital stream, the station was required to provide an additional 0.5 hours of children’s programming, up to a maximum of three hours per week.

The maximum (three hours per week) would be required for a station providing a 24-hour programming stream, seven days a week. This (former) requirement applies to each additional free digital programming stream, although all of the children’s programming could have been provided on the station’s primary channel, if desired.

(Effective September 16, 2019, up to one third of a station’s children’s programming can be broadcast on a multicast stream, as described in our recent Advisory.)

Stations are also reminded to provide the required on-air identification of core programs that are specifically designed to educate and inform children. Thus, at the beginning of each core children’s program, stations should announce that the upcoming program satisfies the Commission’s core children’s programming requirements.

Core children’s programming must also contain the E/I bug superimposed on the program to identify the program as meeting the educational and informational needs of children. The current Form 398 includes a certification that the E/I symbol was displayed during each core program.

(This requirement is being eliminated for noncommercial TV stations only.)

Stations have been fined for insufficient documentation showing compliance with the children’s rules or for missing documentation for any quarters during the license term.

In fact, the most recent fines were issued by the FCC within the past couple of weeks. The FCC has also issued "show cause" orders, proposing to downgrade the status of Class A TV stations for noncompliance with these requirements. Accordingly, stations should prepare and post all quarterly forms and certifications required by the Commission’s former rules, even with the recent changes to these requirements.

III. Commercial Limits

In addition to requiring programming that is responsive to the educational and informational needs of children aged 16 or younger, the FCC’s rules also limit the amount of commercial material that can be aired during programming aimed at children aged 12 and under. Specifically, the rules state that “no commercial television broadcast station licensee shall air more than 10.5 minutes of commercial matter per hour during [such] children’s programming on weekends, or more than 12 minutes of commercial matter per hour on weekdays.”

These limits (which have not changed) also apply to cable systems that run children’s programming. In order to demonstrate compliance with this rule, TV stations must prepare a proof of compliance with the commercial limits and post this information to their online public inspection file by the tenth day of the month following the end of the calendar quarter.

For the third quarter of 2019, the proof of compliance with the children’s TV commercial limits must be posted online by October 10, 2019. Although this certification is being changed to an annual requirement, the old rules still apply through September 15.

There is no specific form for this purpose. Stations may keep program logs demonstrating compliance with the commercial limits, but if the logs are intended to satisfy the documentation requirement they must be posted online as well. Stations may also keep tapes sufficient to demonstrate compliance and must make the tapes available for review upon request by a member of the public.

Alternatively, stations may maintain lists of the number of commercial minutes per hour aired during children’s programs, including a detailed listing of any overages. Many networks and syndicators that provide children’s programming also provide certifications that their programs comply with the commercial limits.

Such lists should be reviewed periodically to ensure accuracy.

The commercial limits on children’s programming apply to cable and DBS operators as well, who must also keep records verifying compliance with those limits.

Note: While children’s programming is required to serve the educational and informational needs of children up to 16 years of age, the commercial limits apply only to programs broadcast or cablecast primarily for children aged 12 and under.

IV. Special Rules for Class A TV Stations

In addition to all of the requirements discussed above, the FCC requires that Class A TV stations maintain information in their (online) public files sufficient to demonstrate their continuing eligibility for Class A status, i.e., that they are on air at least 18 hours per day, that they have broadcast at least three hours per week of locally produced programming, and that they have otherwise observed the rules that apply to full power TV stations.

V. Repacking Transition Progress Report

Full-power and Class A TV Stations repacked by the incentive auction have a quarterly obligation to file a Repacking Transition Progress Report (FCC Form 2100—Schedule 387) by October 10, 2019, informing the FCC (and the public) of steps that they have taken to implement the channel change, assuming the station has not already been licensed on its new channel.

In addition to the quarterly reports, repacked stations must also file Transition Progress Reports:

• (1) Ten weeks prior to their construction deadline;
• (2) Ten days after construction is complete; and
• (3) Five days after ceasing operation on their pre-auction channel.

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