David Oxenford - Color

David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

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.

Some of the significant changes for the three-hour obligation for the primary channel include the following:

  • Obligations would be reviewed based on quarterly and yearly hours goals, rather than average weekly requirements.
  • To avoid heightened scrutiny at license renewal time (which would require a station to show that all of its other efforts directed to children were so important that it excused the station’s noncompliance with these processing guidelines – a showing rarely attempted because of the uncertainty that it creates), a station would need to meet one of the following two criteria:
    1. It broadcast 156 annual hours of regularly scheduled Core Programming consisting of programs that were at least 30 minutes in length (consistent with the current policy); or
    2. It broadcasts 156 annual hours of Core Programing of which at least 26 hours per quarter (essentially 2 hours per week) were regularly scheduled programs of at least 30 minutes in length, but the remaining 13 hours per quarter could be some combination of either special educational and informational programming for children of at least 30 minutes duration or short-form programming meeting those needs (including PSAs and interstitial short-form educational programs).
  • Up to 13 hours per quarter of a station’s required educational programming directed to children could be broadcast on a multicast channel of the station rather than on its primary video channel
  • Core programming could be aired between 6 AM and 10 PM, rather than 7 AM to 10 PM as currently allowed.
  • Changes are also set out providing more flexibility in the requirements for dealing with children’s programs that are preempted in their normal time slots.
  • Children’s programming reports (FCC Form 398) would be filed on a yearly basis instead of quarterly, and public file documentation of compliance with the limits on advertising in children’s programming would also be placed into a station’s online public file annually – by the 30th day of the end of each calendar year. And stations would no longer be obligated to publicize the existence and location of the Form 398 filings.

The draft Order contains many other changes – and is worth careful review by all television operators.

The draft Order also contains a Further Notice of Proposed Rulemaking asking for comments on other potential future changes in the rules. One intriguing proposal would allow broadcasters to be relieved of their children’s television obligations if they financially support another station which runs more children’s programming than otherwise required – the idea being advanced that concentrating that educational programming on a single station would make it easier to find for children and their parents.

If adopted at the FCC meeting in July, the Order will become effective after Federal Register publication and review under the Paperwork Reduction Act – so it will probably be several months in the future before many of these changes become effective. Comments on the Further Notice will be due after Federal Register publication. I’m sure that many TV operators will be watching the July 10 meeting to see if the FCC adopts this proposed Order without significant changes.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

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