December
28, 2006
FCC
UPDATE
Revised Children’s Television Rules Become
Effective January 2, 2007
Revised Rules (1) Clarify
Core Programming Obligations of Digital
Broadcasters and (2) Impose Restrictions on the Display of Website
Addresses During Children’s Programming
As a reminder, the
revised children’s television rules adopted in the Federal Communications
Commission’s Second Order on Reconsideration and Second Report and
Order will become
effective on January 2, 2007. The rules were revised initially in September
2004, but the
implementation of certain modified provisions was deferred pending the
resolution of
reconsideration petitions and judicial appeals. Earlier this year, a group
of child advocacy
organizations, broadcast networks, and cable operators met in an attempt
to resolve their
differences regarding the new rules. A joint proposal negotiated by that
group formed the basis for
the revised rules ultimately adopted by the Commission and scheduled to
take effect next week.
The key provisions of the revised rules are summarized below:
Digital
Core Programming Processing Guideline
The
Second Order clarifies the obligations of digital broadcasters to provide
programming
specifically designed to serve the educational and informational needs
of children ages 16 and
under (known as “core programming”). Like analog broadcasters,
digital broadcasters must
provide 3 hours of core programming on their main program stream (i.e.,
the digital channel that
replicates the programming on the station’s analog channel). Digital
broadcasters who choose to
“multicast” (i.e., offer additional channels of programming
on excess digital spectrum) must provide
additional core programming.
The amount of additional core programming that is required under the rules
is proportional
to the amount of multicast programming that the digital broadcaster offers.
Digital
broadcasters incur an additional ½ hour per week core programming
obligation for every
increment of 1-28 hours of free multicast programming aired (e.g., 29-56
hours triggers 1
hour per week; 57-84 hours triggers 1 ½ hours per week and so on);
thus, a full-time
multicast program stream (broadcasting 168 hours per week) triggers an
additional 3 hour
per week core programming obligation. This additional digital core programming
may be
aired either on one free digital stream or multiple free digital streams
so long as the
stream(s) on which the core programming is aired have comparable cable/satellite
carriage as the stream whose programming generates the obligation.
December 28, 2006 | 2
•
At least 50 percent of core programming counted toward meeting the additional
programming guideline cannot consist of program episodes that have aired
within the
previous seven days on either the station’s main program stream
or on another of the
station’s free digital streams. Exempted from this requirement are
(i) any program stream
that merely time shifts the entire programming line-up of another program
stream; and (ii)
during the digital transition, programming aired on both the analog station
and a digital
program stream.
Preemptions of Core Programming
The Commission repealed
the preemption cap adopted in the 2004 Order, which would have
established a 10 percent preemption limitation. Instead, the Commission
will maintain its current
practice of evaluating, on a case-by-case basis, whether a broadcaster
has engaged in excessive
preemptions.
The Commission also
will formalize a procedure whereby networks can seek approval of their
preemption plans each year to ensure that core programs that must be preempted
are consistently
rescheduled and promoted. All networks requesting preemption flexibility
must file a request with
the Media Bureau by August 1 of each year stating the number of preemptions
the network expects
to occur, when each pre-empted program will be rescheduled, whether the
rescheduled time is the
program’s substitute time slot (otherwise known as a “second
home”), and the network’s plan to
notify viewers of the schedule change. A program will not count as preempted
if it is aired in its
second home and if an on-air notification of the schedule change is made
at the time of preemption
of the previously scheduled episode.
Limitation
on Display of Website Addresses During Children’s Programming
Broadcasters and cable
operators may not display a website address during programming directed
to children ages 12 and under unless the website satisfies the following
four-part test: (1) the
website offers a substantial amount of bona fide program-related or other
noncommercial content;
(2) the website is
not primarily intended for commercial purposes, including either e-commerce
or
advertising; (3) the website’s home page and other menu pages are
clearly labeled to distinguish
the noncommercial from the commercial sections; and (4) the page of the
website to which viewers
are directed is not used for e-commerce, advertising, or other commercial
purposes (e.g., contains
no links labeled “store” and no links to another page with
commercial material).
•
The rule only applies to website addresses displayed during non-commercial
portions of
children’s programming (i.e., during (i) program material and (ii)
promotional material not
counted as commercial time). Broadcasters/cable operators may display
the addresses of
websites that do not comply with the four-prong test during allowable
commercial time.
•
If an address for a website that does not meet this four-prong test is
displayed in a
promotion during children’s programming, the promotion must be (i)
counted against the
commercial time limits and (ii) clearly separated from program material.
December 28, 2006 | 3
•
PSAs aired on behalf of independent non-profit or government organizations
(or media
companies in partnership with non-profits or government entities) that
are not under the
control of the broadcaster or the cable company airing the PSA are exempt
from the
website display rules. Station identifications and emergency announcements
also are not
subject to the website display rules so long as the display is consistent
with the purpose of
the announcement.
•
Closing credits are subject to the website display rules.
•
Broadcasters and cable operators cannot rely on contractual representations
from
program providers that website addresses displayed in the programming
meet the four-
prong test. The Commission will hold broadcasters and cable operators
solely
responsible for compliance with the website display rules.
Prohibition on Display of Addresses for Web Pages with Host Selling
The Commission extended
its long standing host selling policy, which prohibits the use of program
characters or hosts to sell products in commercials during or adjacent
to programs in which the
character or host appears, to prohibit the display of addresses for websites
that include online host
selling. Broadcasters and cable operators may not display a website address
during or adjacent to
programming that is directed to children ages 12 and under if, at that
time, on web pages that are
primarily devoted to free noncommercial content regarding that specific
program or a character
appearing in that program, either (1) products are sold that feature a
character appearing in that
program or (2) a character appearing in that program is used to actively
sell products.
•
The Commission clarified that the rule does not prohibit the sale of any
merchandise
incorporating a program-related character anywhere on the website but
the e-commerce
area of the website must be sufficiently separated from the program itself
to mitigate the
impact of host selling.
Commercial Matter in Children’s Programming
The Commission broadened
the definition of “commercial matter” that falls under the
Commission’s
limitation on the duration of advertising in children’s programming
(10 ½ minutes per hour on
weekends and 12 minutes per hour on weekdays). The limitation applies
to both broadcasters and
cable operators. The revised definition of “commercial matter”
includes promotional
announcements for television programs or video programming other than
(i) promotions for
children’s or other age-appropriate programming appearing on the
same channel or (ii) promotions
for children’s educational and informational programming appearing
on any channel.
Additional
Procedural Requirements
•
Multicasting. Broadcasters must certify on their quarterly Form 398 children’s
report that
they have complied with the additional digital core programming obligations
and retain
records sufficient to document the accuracy of their certification, including
records of
December 28, 2006 | 4
actual program episodes
aired, and make such documentation available to the public
upon request.
•
Compliance with Website Address Display Rules. Broadcasters will be required
to
maintain in their public inspection file, until final action has been
taken on the station’s
next license renewal application, “records sufficient to substantiate
the station’s
certification of compliance with the restrictions on website address displays
in programs
directed to children ages 12 and under.” The Commission has not
provided additional
guidance on what records would be sufficient to demonstrate compliance,
but, at a
minimum, the station should, with respect to any website address that
is displayed during
programming directed to children ages 12 and under, capture and print
out (i) a dated
copy of a screenshot of the webpage to which viewers are directed and
(ii) a screenshot of
the homepage of the website. These materials should be placed in the station’s
public
inspection file.
•
Revised Form 398. A revised version of Form 398 already has been approved
by the
Office of Management and Budget. Broadcasters will be required to use
the revised
electronic version of Form 398 to report their children’s core programming
(including their
digital core programming) for the first quarter of 2007, which is due
no later than April 10,
2007.
•
Children’s Programming Bug. The Second Order reminds broadcasters
that in order for a
program to count towards a station’s core programming obligations,
an “E/I” icon must be
displayed on-screen throughout the entire program. This requirement, adopted
in the
2004 Order, has been in effect since last year.
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