[co-author: David Silverman*]

Issues/Programs Lists; Children's TV Programming Reports; Third-Party Fundraising by Noncommercial Broadcasters; Commercial Limits; Class A TV Eligibility; Political Requests for Broadcast Time; AM Equipment Performance Measurements

By January 10, 2024, 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 dealing with those issues aired during October, November and December. All TV stations and radio stations must post these documents to the FCC's online public file database. The FCC's online public inspection file database ("OPIF") may be accessed through this link.

Additionally, radio and television broadcast stations are reminded to keep complete and orderly records in their Political File of all requests for broadcast time made by or on behalf of a candidate for public office or by a political issue advertiser.

By January 30, 2024, broadcast television stations must file their annual Children's Television Programming Report. Also by January 30, 2024, broadcast television stations must prepare an annual proof of compliance with the commercial limits and post this information to their online public inspection file.

Issues/Programs Lists

All radio and TV broadcast stations must prepare Issues/Programs Lists and upload them to their online public inspection files within ten 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 next list must be prepared and filed by January 10, 2024.

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 identification of a specific number of issues, that range remains a good target.

Although broadcasters have discretion in deciding the specific programs that address the identified issues, all stations must broadcast some programming that does 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-air pursuant to Special Temporary Authority from the FCC must prepare an Issues/Programs list stating that the station was off-air for the entire quarter, or provide a list of programs for the portion of the quarter during which the station was broadcasting.

Children's TV Programming Reports

Broadcast television stations must file their annual Children's Television Programming Report by January 30, 2024, on FCC Form 2100, Schedule H (formerly FCC Form 398).

Under the Commission's current guidelines, stations are required to air an average of at least three (3) hours of "core" children's programming per week or 156 hours annually. (Former guidelines required three hours of core programming per week per digital stream. The requirement for additional core programming attributable to multicast streams was eliminated as of 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 July 2019 advisory.

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" (now applicable to commercial stations only); (4) aired weekly at a regularly scheduled time between the hours of 6 a.m. (formerly 7) 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.

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. (This requirement has been eliminated for noncommercial TV stations only.)

Stations have been fined for insufficient documentation showing compliance with the children's programming rules or for missing documentation during the license term. Accordingly, stations should prepare and post all forms and certifications required by the Commission's rules to avoid potential problems.

Third-Party Fundraising By Noncommercial Broadcasters

By January 10, certain noncommercial educational stations must upload to their public inspection files documentation of their on-air fundraising benefitting third parties from October 1, 2023, through December 31, 2023. This obligation applies only to noncommercial educational stations not affiliated with PBS or NPR that conducted third-party on-air fundraising that interrupted normal programming.

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 an annual proof of compliance with the commercial limits and post this information to their online public inspection file by January 30, 2024.

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.

Special Rules for Class A TV Stations

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.

Political Requests for Broadcast Time

In addition to the Issues/Program Lists' quarterly public file obligation discussed above, we remind broadcast licensees that the Communications Act and FCC rules require stations to maintain and make available for public inspection information about all requests for broadcast time made: (1) by or on behalf of candidates for public office; and (2) by an issue advertiser whose advertisement communicates a message relating to a political matter of national importance. Stations are to upload such information to their online political files "as soon as possible." The FCC has interpreted "as soon as possible" to mean "immediately absent unusual circumstances." Stations should note that the FCC's Media Bureau has entered into Consent Decrees with stations for failure to comply with the FCC's Political File obligations and that failure to comply can pose challenges at the time of license renewal.

AM Equipment Performance Measurements

AM Stations are required to make equipment performance measurements at least once every 14 months and to keep the results of those measurements available for FCC inspection for two years; public file retention is not required. The end of the year may be a good time to make those measurements if not otherwise regularly scheduled.

*David Silverman is a contract attorney and former partner of DWT. Sharon Mathis, broadcast paralegal, contributed to this advisory.

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