[author: David M. Silverman]

By July 10, 2012, all radio and television broadcast stations, both commercial and noncommercial, must prepare and place in their public inspection files a list of important issues facing their communities of license, and the programs aired in the months of April, May and June dealing with those issues.

By that same date, all commercial full power television stations and Class A LPTV stations must prepare and file an FCC Form 398 Children's Programming Report for the Second Quarter of 2012. By this date, stations must also prepare and place in their public inspection files documentation sufficient to demonstrate compliance with the limitations on the amount of commercial matter aired during children's programming.

Issues/Program Lists
As noted above, all radio and television stations must prepare these lists and place them in their public files within ten days of 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 that addressed issues of importance to the viewers or listeners of that station. Although the FCC has adopted new rules for television stations that will require these lists to be posted online, those rules are not yet effective (but likely will be effective for the next quarterly report due in October).

The failure to have a complete set of Quarterly Issues/Programs lists timely placed in a station's public file can lead to significant fines at license renewal time. These lists are the only legally mandated documents demonstrating how a station has served the public interest needs of the audience within its service area.

In recent renewal cycles, broadcasters have been fined between $4,000 and $10,000 for not having a complete set of timely Issues/Programs lists in their public file. While the Commission was less severe on stations missing an isolated quarter—or where isolated reports were prepared late—fines were imposed in cases there were multiple missing or late-filed reports.

What should be contained in the Quarterly Issues/Programs lists?
In the FCC's words, 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 in its good faith determined to be of significance during that quarter, and the programming it has broadcast that is responsive to those issues. In the past, the FCC had mandated identification of 5 to 10 issues per quarter. While the FCC has since backed away from any specific number of issues, the 5 to 10 range remains a good target.

Although broadcast stations have a great deal of discretion in deciding what programming will address the identified issues, all stations must broadcast some programming that does so. Each program must be identified, including the title of the program, as well as the time and date on which it was broadcast, and its duration. A brief description of the contents of the program, sufficient to demonstrate how the program addressed the identified issue, should also be included.

Special rules for Class A TV stations
In addition to the Quarterly Issues/Programs lists discussed above, the FCC requires that Class A TV stations maintain sufficient information in their public files to demonstrate their continuing eligibility for Class A status, e.g., 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, including the Children’s Programming Reports discussed below. While the FCC does not require that this report on continued eligibility be done quarterly, the preparation of the Quarterly Issues/Programs list and Children’s Programming Report would seem to provide a good opportunity to prepare such documentation.

Children's TV Programming Reports
Also within ten days after the end of each calendar quarter, all commercial full power and Class A TV stations must prepare and file an FCC Form 398 Children's Programming Report with the FCC. This report must also be placed in each station’s public inspection file. For the Second Quarter of 2012, the Form 398 must be filed electronically with the FCC and placed in the station's public inspection file by July 10, 2012.

Stations are also reminded to periodically publicize the existence and location of these quarterly children's programming reports. While there is no prescribed language or manner for informing the community about these reports, we recommend airing a spot at least once a month announcing that the station prepares and files FCC Form 398 with the FCC on a quarterly basis, which reports on the station's children's programming efforts during the previous calendar quarter. These announcements should also inform viewers that the reports are available for review on the FCC's web site or at the station's main studio. Posting the report or a link to the FCC's web site on the station's own web site is also a good way to publicize the existence and location of the Children's Programming Reports.

Under the Commission's current license renewal guidelines, stations are generally required to air an average of at least three (3.0) hours of core children's programming per week during each calendar quarter. In general, 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; (4) aired weekly at a regularly scheduled time between the hours of 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.

Under the Commission's rules, the amount of children's programming required for multicasting DTV stations increases in proportion to the additional hours of free programming offered on the multicast channels, up to an additional three hours per week for each multicast stream. Specifically, for every 28 hours, or portion thereof, of free video programming per week provided on a DTV digital stream, the station is required to provide an additional 0.5 hours of children's programming, up to a maximum of three hours per week. The maximum would be required for a station providing a 24 hour programming stream, seven days a week. For each additional free digital programming stream, the same analysis would apply.

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. Furthermore, core children's programming must also contain the E/I symbol or “bug” superimposed on the program to identify the program as meeting the educational and informational needs of children. The revised Form 398 now includes a question requiring certification that the symbol was included during each core program.

Stations have been fined at renewal time for insufficient documentation showing compliance with the children's rules or for missing documentation for any quarters during the license term. The FCC has also issued multiple “show cause” orders, proposing to downgrade the status of Class A LPTV stations for noncompliance with these requirements. Accordingly, stations would be well advised to prepare and maintain all quarterly FCC Form 398s and commercial limit certifications required by the Commission's rules.

Commercial limits
In addition to broadcasting programming responsive to the educational and informational needs of children, the Commission's rules 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 children's programming on weekends, or more than 12 minutes of commercial matter per hour on weekdays.” In order to demonstrate compliance with this rule, stations must prepare and place proof of compliance with the commercial limits in the public inspection file by the tenth day of the month following the end of the calendar quarter. For the Second Quarter of 2012, proof of compliance with the children's television commercial limits must be placed in station's public inspection file by July 10, 2012.

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 placed in the public inspection file. 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. Such lists should be reviewed routinely by the station manager or program manager to ensure accuracy. Finally, the station (or the network or program syndicator) may certify that, as a standard practice, the station, network or syndicator formats and airs specifically identified children's programs that comply with the commercial limits in children's programming.

Stations are reminded to identify the programs subject to commercial limits and to describe any overages that have occurred. Note that while children's programming can be aimed at serving the educational and information needs of children up to 16 years of age, the commercial limits apply only to programs originally produced and broadcast primarily for an audience of children aged 12 and under.