[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43981-43998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21798]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 93-48; FCC 96-335]
Broadcast Services; Children's Television
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This Report and Order amends the children's television
educational and informational programming requirements to strengthen
our enforcement of the Children's Television Act of 1990 (``CTA'').
First, we adopt requirements designed to provide better information to
the public about the shows broadcasters air to fulfill their obligation
under the CTA to air educational and informational programming for
children. Such information will assist parents to guide their
children's television viewing, may ultimately increase the amount of
educational programming available in the market, and will help parents
and others to work with broadcasters in their community to improve
educational programming without government intervention. Second, we
adopt a definition of programming ``specifically designed'' to educate
or inform children (or ``core'' programming) that provides better
guidance to broadcasters concerning their specific obligation under the
CTA to air such programming. Third, we adopt a processing guideline
that will provide certainty for broadcasters about how to comply with
the CTA, counteract market disincentives to air children's educational
and informational programming, and facilitate staff processing of the
children's educational programming portion of renewal applications. The
purpose of these new rules is to improve public access to information
about ``core'' programs, provide better clarity to broadcasters about
their obligation to air such programs, and facilitate our application
processing efforts. This proceeding was initiated by a Notice of
Inquiry and a Notice of Proposed Rule Making.
DATES: Effective date: The rule changes to Secs. 73.673,
73.3526(a)(8)(iii), and 73.3500, will become effective on January 2,
1997, subject to OMB approval under the Paperwork Reduction Act. Notice
in the Federal Register will be given upon OMB's action to confirm this
effective date. The rule changes to Secs. 73.671 and 73.672, 47 CFR
Secs. 73.671, 73.672, will become effective on September 1, 1997.
Written comments by the public on the new and/or modified information
collections are due October 28, 1996.
ADDRESSES: Comments on the information collections contained herein
should be submitted to Secretary, Federal Communications Commission,
Room 222, 1919 M Street, NW., Washington, DC 20554, and a copy
submitted to Dorothy Conway, Federal Communications Commission, Room
234, 1919 M Street, NW., Washington, DC 20554, or via the Internet to
dconway@fcc.gov.
FOR FURTHER INFORMATION CONTACT: Charles Logan, Kim Matthews, or Jane
Gross, Mass Media Bureau, Policy and Rules Division, (202) 418-2130.
For additional information concerning the information collections
contained in this Report and Order contact Dorothy Conway at 202-418-
0217, or via the Internet at dconway@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order in MM Docket No. 93-48, adopted August 8, 1996, and
released August 8, 1996. The complete text of this Report and Order is
available for inspection and copying during normal business hours in
the FCC Dockets Branch (Room 230), 1919 M Street, NW., Washington, DC,
and also may be purchased from the Commission's duplicating contractor,
ITS, at (202) 857-3800, 1919 M Street, NW., Room 246, Washington, DC
20554. This Report & Order contains new or modified information
collections subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law No. 104-13. It will be submitted to the Office of Management
and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the
general public, and other Federal agencies are invited to comment on
the new or modified information collections contained in this
proceeding.
Synopsis of Report and Order
I. Introduction
In this Report and Order, the Commission takes action to strengthen
its enforcement of the Children's Television Act of 1990 (``CTA''). The
CTA requires the Commission, in its review of each television broadcast
license renewal application, to ``consider the extent to which the
licensee * * * has served the educational and informational needs of
children through the licensee's overall programming, including
programming specifically designed to serve such needs.'' Our initial
regulations implementing the CTA have not been fully effective in
prompting broadcasters to increase the amount of educational and
informational broadcast television
[[Page 43982]]
programming available to children. Some broadcasters are carrying very
little regularly scheduled standard length programming specifically
designed to educate and inform children, and some broadcasters are
claiming to have satisfied their statutory obligations with shows that,
by any reasonable benchmark, cannot be said to be ``specifically
designed'' to educate and inform children within the meaning of the
CTA. In addition, parents and others frequently lack timely access to
information about the availability of programming in their communities
specifically designed to educate and inform children, exacerbating
market disincentives.
2. We refine our policies and rules to remedy these problems.
First, we adopt a number of proposals designed to provide better
information to the public about the shows broadcasters air to fulfill
their obligation to air educational and informational programming under
the CTA. Second, we adopt a definition of programming ``specifically
designed'' to educate and inform children (or ``core'' programming)
that provides better guidance to broadcasters concerning programming
that fulfills their statutory obligation to air such programming. In
order to qualify as core programming, a show must have serving the
educational and informational needs of children as a significant
purpose, be a regularly scheduled, weekly program of at least 30
minutes, and be aired between 7:00 a.m. and 10:00 p.m. The program must
also be identified as educational and informational for children when
it is aired and must be listed in the children's programming report
placed in the broadcaster's public inspection file. Third, we adopt a
processing guideline that will provide certainty for broadcasters about
how to comply with the CTA and facilitate our processing efforts.
II. Background
3. The Importance of Children's Educational TV. Congress has
recognized that television can benefit society by helping to educate
and inform our children. In enacting the CTA, Congress cited research
demonstrating that television programs designed to teach children
specific skills are effective. There is substantial evidence in this
proceeding that children can benefit greatly from viewing educational
television. That television has the power to teach is important because
nearly all American children have access to television and spend
considerable time watching it. The significance of over-the-air
television for children is reinforced by the fact that fewer children
have access to cable television than to over-the-air television. In the
United States, 38 percent of children from ages 12 to 17 and 37 percent
of children from ages 2 to 11 live in homes that are not connected to
cable television. Hence, over-the-air broadcasting is an important
source of video programs for children and for all members of low income
families, including children.
4. Previous Implementation of the CTA. For over 30 years, the
Commission has recognized that, as part of their obligation as trustees
of the public's airwaves, broadcasters must provide programming that
serves the special needs of children. In 1990, Congress enacted the CTA
both to impose limitations on the number of commercials shown during
children's programs and to make clear that the FCC could not rely
solely on market forces to increase the educational and informational
programming available to children on commercial television. In enacting
the CTA Congress intended to increase the amount of educational and
informational broadcast television available to children. Congress
sought to accomplish this objective by placing on each and every
licensee an obligation to provide educational and informational
programming, including programming specifically designed to educate and
inform children, and by requiring the FCC to enforce that obligation.
5. In 1991, the Commission adopted regulations to implement the
CTA. In response to concerns expressed by a number of parties that our
rules provide insufficient guidance for broadcasters seeking to comply
with the CTA, we initiated this proceeding with a Notice of Inquiry
(``NOI''), 58 FR 14367 (March 17, 1993), in 1993. Based on comments
responding to our NOI, as well as comments received in connection with
our 1994 en banc hearing on the subject of children's educational
television programming, we proposed in the Notice of Proposed Rule
Making (``NPRM''), 60 FR 20586 (April 26, 1995), to make a number of
changes to our rules to achieve the goals of the CTA. In response to
the NPRM, we received a substantial number of formal and informal
comments from interested parties.
6. The Economics of Children's Educational Programming. In enacting
the CTA, Congress found that market forces were not sufficient to
ensure that commercial stations would provide children's educational
and information programming. A number of factors explain the
marketplace constraints on providing such programming. Over-the-air
commercial broadcast television stations earn their revenues from the
sale of advertising time. Revenues received from the sale of
advertising depend on the size and the socio-demographic
characteristics of the audience reached by the broadcaster's
programming. Broadcasters thus have a reduced economic incentive to
promote children's programming because children's television audiences
are smaller than general audiences. Broadcasters have even less
economic incentive to provide educational programs for children because
the market for children's educational television may be segmented by
age in ways that do not characterize children's entertainment
programming or adult programming. If stations are required to provide
some educational programming for children, we believe that the same
incentives could cause station owners to prefer to show such
programming when relatively few adults would likely be in the audience.
Furthermore, small audiences with little buying power, such as
children's educational television audiences, are unlikely to be able to
signal the intensity of their demand for such programming in the
broadcasting market. Therefore, broadcasters will have little incentive
to provide such programming because the small audiences and small
resulting advertising revenues means that there will be a substantial
cost to them (the so-called ``opportunity cost'') of forgoing larger
revenues from other types of programs not shown. The combination of all
these market forces consequently can create economic disincentives for
commercial broadcasters with respect to educational programming.
Broadcasters who desire to provide substantial children's educational
programming may face economic pressure not to do so because airing a
substantial amount of educational programming may place that
broadcaster at a competitive disadvantage compared to those who do very
little.
7. The amount of educational programming on broadcast television. A
number of parties have submitted studies in this proceeding examining
the amount of regularly scheduled, standard length educational
programming aired on commercial television stations since passage of
the CTA. These studies are inconclusive in establishing the exact
amount of educational programming that currently is being provided by
broadcasters. They arrive at different conclusions on this question in
part because they define the programming to be measured and select
their samples of broadcast stations in different ways. Despite their
[[Page 43983]]
deficiencies, however, the studies (particularly the study submitted by
Dr. Dale Kunkel) do allow us to conclude that some broadcasters are
providing a very limited amount of programming specifically designed to
educate and inform children and that broadcasters vary widely in their
understanding of the type of programming that the CTA requires. The
conclusion that some stations are airing very little educational
programming for children is also supported by our experience in
implementing the CTA.
8. Availability of educational programming on nonbroadcast media. A
number of broadcasters submitted comments arguing that the Commission
should assess not just the educational programming being provided over-
the-air by broadcast stations, but rather the overall availability of
educational programming in the video marketplace. We believe, however,
that the proper focus in this proceeding should be on the provision of
children's educational programming by broadcast stations, not by cable
systems and other subscription services such as direct broadcast
satellite systems that, in contrast to broadcast service, require the
payment of a subscription fee. The CTA itself expressly focuses on
broadcast licensees. Thus, the statute focuses on the provision of
children's educational programming through broadcasting, a ubiquitous
service, which may be the only source of video programming for some
families that cannot afford, or do not have access to, cable or other
subscription services. While noting an increase in the number of
nonbroadcast outlets available for children to receive video
programming, the House Report at 6 states that ``the new marketplace
for video programming does not obviate the public interest
responsibility of individual broadcast licensees to serve the child
audience.''
9. Conclusion. We conclude, on the basis of the studies before us
that while some broadcasters are providing educational and
informational programming as Congress intended, some are not. Congress
was dissatisfied with commercial broadcasters' performance in 1990
when, according to National Association of Broadcasters (``NAB''),
commercial broadcasters were devoting an average of two hours per week
of airtime to educational programming, and in the CTA Congress provided
that each broadcaster has a duty to serve the educational and
informational needs of children through its overall programming,
including programming specifically designed to serve children's
educational and informational needs. Yet it appears that, six years
after the enactment of the CTA, at least some broadcasters are
providing less than that amount. Given the Commission's duty to treat
similarly situated broadcasters in a similar manner, by approving the
performance under the CTA of broadcasters providing very little
educational programming we would signal that all broadcasters may
provide a minimal amount of such programming. The effect of that would
be contrary to our effort to counter the economic disincentive to
provide children's programming described above. Moreover, in light of
the greater value to advertisers of entertainment programs for adults,
those broadcasters providing very little educational programming for
children may receive an unfair economic advantage, a result that only
exacerbates the economic disincentive to provide children's programming
that Congress identified in enacting the CTA. Thus unless we modify our
approach to implementing the CTA, broadcasters will be able to provide
extremely little educational programming for children. That would be
contrary to Congress' intent in enacting the CTA.
10. The record also shows that our definition of programming
fulfilling the requirements of the CTA should be modified to provide a
clear definition of ``specifically designed'' programming, we will give
better guidance and greater incentives for broadcasters' compliance
with the CTA. Finally, the record in this proceeding also supports the
conclusion that parents and others would profit from additional
information concerning the educational programming available in their
community.
III. Public Information Initiatives
11. We conclude that the market inadequacies that led Congress to
pass the Children's Television Act can be addressed, in part, by
enhancing parents' knowledge of children's educational programming. One
way to encourage licensees to provide such programming is to encourage
and enable the public, especially parents, to interact with
broadcasters. Easy public access to information permits the Commission
to rely more on marketplace forces to achieve the goals of the CTA and
facilitates enforcement of the statute by allowing parents, educators,
and others to actively monitor a station's performance.
12. In considering the options to improve the information available
regarding educational programming, we seek to maximize the access to
such information by the public while minimizing the cost to the
licensee. In response to the comments to the NPRM, we have focused on
three basic methods, described below, to improve the public's access to
information. We will continue to exempt noncommercial television
licensees from children's programming reporting requirements, and we
will also exempt them from the other public information initiatives we
adopt today. In light of Congressional intent to avoid unnecessary
constraints on broadcasters, and in view of the commitment demonstrated
by noncommercial stations in general to serving children, we believe it
is inappropriate to impose reporting obligations on such stations. We
nonetheless encourage noncommercial stations voluntarily to comport
with these initiatives to the extent feasible as a means of providing
parents and other members of the public with additional information
about the availability of children's educational and informational
programming on all broadcast stations.
13. On-Air Identification. We will require broadcasters to provide
on-air identification of core programs, in a manner and form that is at
the sole discretion of the licensee, at the beginning of the program.
We believe the on-air identification of core programs will greatly
assist parents in planning their children's viewing and improve the
children's programming marketplace at minimal cost to stations. On-air
identifiers are likely to reach a larger audience than information
printed in programs guides. Moreover, we note that there is no
certainty that published guides will include such information.
Identifiers will improve broadcaster accountability by publicizing the
programs licensees identify as contributing to their obligation to air
core programming. An on-air identification requirement will make
broadcasters more accountable to the public and further the goal of
minimizing the possibility that the Commission would be forced to
decide whether particular programs serve the educational and
informational needs of children.
14. Some commenter speculated that on-air identifiers could deter
children from watching educational programs. No commenter, however,
presented evidence that such an effect will occur. We will revisit our
decision to require on-air identification if, after some experience,
parties present us with evidence that they in fact have a deterrent
effect. In the meantime, broadcasters will have full discretion to
design their identifiers to minimize or avoid any such effect.
15. Program Guides. We will require each commercial television
broadcast
[[Page 43984]]
station licensee to provide information identifying programming
specifically designed to educate and inform children, and an indication
of the age group for which the program is intended, to publishers of
program guides. It is industry practice for broadcasters to provide
programming information to program guides, which publish such
information without cost to the broadcasters. Further, it has become a
well-established practice to provide specialized information about
programs, such as which programs are closed captioned for the hearing
impaired. As broadcasters routinely provide such information about
their programming to program guides and designate core programs for
their public records, we believe it would require a minimum of effort,
but have a major positive effect, for broadcasters to provide
publishers of program guides and listings, information identifying core
programs, and the age group for which, in the opinion of the
broadcaster, the program is intended.
16. We recognize broadcasters cannot require guides to print this
information. The information, however, is more likely to be in the
program listings if broadcasters routinely provide it. We believe
program guides are an effective means of providing parents with advance
notice of scheduling of educational programs. This information will
assist parents in finding suitable programs for their children and be
useful to parents and others who wish to monitor station performance in
complying with the CTA. We note that a number of broadcasters supported
this proposal, and that the major networks now employ a voluntary
parental advisory plan pursuant to which they provide to program guide
services information indicating whether programs contain material that
may be unsuitable for children. We believe that a universal symbol for
educational programming would also be useful in readily identifying
such programming to the public, and encourage broadcasters to adopt
such a symbol.
17. Public File Proposals. Our rules currently require commercial
licensees to compile reports containing information about the
children's programming they air, including the time, date, duration,
and description of the programs. Licensees maintain these reports in
the station's public inspection file. We identify several ways,
discussed below, to enhance public access to and use of the information
in these reports that can be made without materially increasing any
burden on the licensee.
18. Children's liaison. We will require stations to identify the
person at the station responsible for collecting comments on the
station's compliance with the CTA. We believe it is reasonable to
require licensees to designate a liaison for children's programming and
to include the name and method of contacting that individual in the
station's children's programming reports, since someone at each station
must, as a practical matter, be responsible for carrying out the
broadcaster's responsibilities under the CTA. This requirement also
will facilitate public access to information on stations' educational
programming efforts, and assist stations in responding to comments and
complaints from the public. Moreover, because licensees are currently
required to maintain children's programming reports and letters
received from the public in their public inspection file, this
requirement should not impose a significant additional burden on
licensees.
19. Explanation of how programming meets definition of core
programming. We will require licensees to provide a brief explanation
in their children's programming reports of how particular programs meet
the definition of ``core'' programming. Such descriptions assist
parents and others who wish to monitor station performance in complying
with the CTA. Having a broadcaster identify those programs it relies
upon to meet its CTA obligation on an ongoing basis, rather than the
end of the term, will increase broadcaster accountability. With regard
to a qualifying regular series, we will consider a general description
to be sufficient so long as the description is adequate to provide the
public with enough information about how the series is specifically
designed to meet the educational and informational needs of children.
20. Physically separate reports. We will require licensees to
separate the children's programming reports from other reports they
maintain in their public inspection files. This will enable interested
parties to review the information without having to search through
unrelated materials. This is our current practice with a licensee's
political file. Facilitating access to children's programming reports
will facilitate public monitoring and increase broadcaster
accountability under the CTA; requiring broadcasters to keep their
children's programming reports separate from other portions of their
public inspection files will ensure such ease of access.
21. Publicizing children's programming reports. We will require
that licensees publicize the children's programming reports in an
appropriate manner. We remain concerned that the public is generally
unaware of these reports and agree with commenters who contend that
publicizing the children's programming reports will heighten awareness
of the CTA and invite members of the public to take an active role in
monitoring compliance.
22. Quarterly reports. We will require licensees to prepare
children's programming reports on a quarterly basis. Commenters noted
that a quarterly reporting requirement provides more current
information about station performance and encourages more consistent
focus on educational programming efforts and that, because quarterly
production of children's programming reports will coincide with the
quarterly issues/programs reports that broadcasters currently prepare,
this requirement will not impose a significant additional burden on
licensees. For an experimental period of three years, we will also
require broadcasters to file such quarterly reports with the Commission
on an annual basis, i.e., four quarterly reports filed jointly once a
year. We encourage stations to file quarterly, in electronic form, when
the reports are prepared. We will evaluate whether to continue this
requirement as part of our review of broadcasters' annual reports at
the end of this three-year period.
23. Standardized reporting form. We will provide licensees with a
standardized form for the quarterly children's programming reports. A
standardized form should lessen the burden on broadcasters by
clarifying the information to be included and providing a ready format.
A standardized form will facilitate consistency of reporting among all
licensees, assist in efforts by the public and the Commission to
monitor station compliance with the CTA, and lessen the burden on the
public and Commission staff. This form--a Children's Educational
Television Report--will be designed so licensees can complete the
report on a computer and file it electronically with the Commission for
purposes of the experimental three-year annual filing requirement. We
encourage licensees to file the form with us electronically, although
we will accept filings either on computer diskette or a paper copy of
the report form.
24. This form will request information to identify the individual
station and the programs it airs to meet its obligation under the CTA.
The form will also request information on educational programs that the
station plans to air in the next quarter and ask whether the licensee
has complied with other
[[Page 43985]]
requirements described in this Report and Order. We plan to issue the
reporting form by Public Notice and make it available on the Internet.
IV. Definition of Programming ``Specifically Designed'' to Serve
Children's Educational and Informational Needs
25. The CTA requires every television broadcaster to air
programming ``specifically designed'' to serve the educational and
informational needs of children. Our current definition of educational
and informational programming--``programming that furthers the positive
development of children 16 years of age and under in any respect,
including the child's intellectual/cognitive or social/emotional
needs''-- is very broad and does not further delineate criteria for
programs that are ``specifically designed'' to educate and inform
children. To remedy this situation, we have decided to adopt a more
particularized definition of programming specifically designed to serve
children's educational and informational needs, or ``core''
programming. We intend that this definition will identify programming
that clearly meets the statutory obligation to air programming
``specifically designed'' to meet the educational and informational
needs of children. We emphasize that licensees should not regard our
definition of core programming as imposing a limit on their ability to
air other programming that teaches and informs children even if that
programming does not square with each element of our definition of core
programming.
26. The evidence in the record supports our general proposal to
adopt a definition of core educational and informational programming.
Several of the studies submitted in this proceeding suggest that some
licensees are uncertain about what to classify as programming
specifically designed to meet children's educational and informational
needs. This conclusion is supported by our experience in reviewing
renewal applications and in evaluating licensees' efforts to meet their
CTA obligation to air programming ``specifically designed'' to educate
and inform children. We agree with those commenters who believe that a
particularized definition will assist broadcasters and will avoid
potentially misplaced reliance on general audience and entertainment
programs as specifically designed to educate and inform. By more
precisely defining ``specifically designed'' programming, we increase
the likelihood that such programs will be aired, concomitantly
increasing the likelihood children will benefit as Congress intended,
from such programs.
27. We will retain, with a slight modification, our existing
definition of ``educational and informational programming'' to provide
a description of the broad variety of programs that can serve to comply
with a licensee's overall requirement to air programming that meets
children's educational and informational needs. In order to track more
closely the express language of the CTA, we will modify this definition
somewhat so that the broad category of ``educational and informational
television programming'' is defined as ``any television programming
that furthers the educational and informational needs of children 16
years of age and under in any respect, including children's
intellectual/cognitive or social/emotional needs.''
28. The definition of core programming that we adopt is designed to
provide licensees with clear guidance regarding how we will evaluate
renewal applications. The elements of our proposed definition are also
designed to be as objective as possible so that they are more easily
understood by licensees and the Commission staff and to avoid injecting
the Commission unnecessarily into sensitive decisions regarding program
content. As we stated in the NPRM, programming specifically designed to
serve children's educational and informational needs is the only
category of programming the CTA expressly requires each licensee to
provide. We believe that the definition we adopt today will continue to
provide broadcasters ample discretion in designing and producing such
programming. We emphasize that the test of whether programming
qualifies as core does not depend in any way on its topic or viewpoint.
We now turn to the specific elements of the new definition of core
programming.
Significant Purpose
29. With respect to the first element of our definition, we believe
that, to qualify as core programming, a show must have served the
educational and informational needs of children ages 16 and under as a
significant purpose. The ``significant purpose'' standard appropriately
acknowledges the point advanced by broadcasters and others that to be
successful, and thus to serve children's needs as mandated by the CTA,
educational and informational programming must also be entertaining and
attractive to children. Accordingly, as proposed in the NPRM, we will
require that core programming be specifically designed to meet the
educational and informational needs of children ages 16 and under and
have educating and informing children as a significant purpose.
30. The CTA speaks of programming specifically designed to serve
``the educational and informational needs of children.'' It does not
draw a distinction between educational and informational programming
that furthers children's cognitive and intellectual development and
educational and informational programming that furthers children's
social and emotional development. We decline to draw that distinction
ourselves and accordingly conclude that both fall within the scope of
our definition. The test of whether programming qualifies as core does
not depend in any way on its viewpoint, but solely on whether it is
``specifically designed'' to serve children's educational and
informational needs. In this regard, we note that entertainment
programming with a minor or wrap-around educational and informational
message cannot correctly be said to have serving the educational and
informational needs of children as a significant purpose.1 We
anticipate that any attempt to incorrectly characterize programming as
core will elicit significant opposition from the community, about which
the FCC will be apprised.
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\1\ The term ``wrap-around'' refers to messages inserted at the
beginning or end of an entertainment program in an effort to make
the program qualify as specifically designed to educate or inform.
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31. In determining whether programming has a significant purpose of
educating and informing children, we will ordinarily rely on the good
faith judgment of broadcasters, who will be subject to increased
community scrutiny as a result of the public information initiatives
described above. We consequently will rely primarily on such public
participation to ensure compliance with the significant purpose prong
of the definition of core programming, with Commission review taking
place only as a last resort.
32. One suggested rule revision discussed in the NPRM was to
require that educational and informational programming specifically
designed for children be produced with the assistance of independent
educational advisors. We continue to believe that it would not be
appropriate to require the use of educational experts in developing
core programming. Although some broadcasters may find that experts can
provide worthwhile assistance in developing educational programming, as
we stated in the NPRM we prefer to
[[Page 43986]]
minimize the burdens and potential intrusions on programming decisions
of broadcasters and provide them the flexibility to select the means by
which their educational programming is created.
Educational and Informational Objective and Target Child Audience
Specified in Writing
33. With respect to the second element of our core programming
definition, we are persuaded that we should adopt our proposal to
require that the educational and informational objective of core
programming be specified in writing. Requiring a statement of
educational and informational purpose will ensure that broadcasters
devote attention to the educational and informational goals of core
programming and how those goals may be achieved. A written statement of
educational and information purpose should also assist licensees to
distinguish programs specifically designed to serve children's
educational and informational needs from programs whose primary purpose
is to entertain children. Moreover, this requirement can, as noted,
allow parents and other interested parties to participate more actively
in monitoring licensee compliance with the CTA, and thus is consistent
with our public information initiatives.
34. The description of a program's educational and informational
objective, which should be included in the licensee's children's
programming report, does not have to be lengthy. It should state the
educational and informational objective of the program and the expected
educational and informational effects. To satisfy this requirement,
broadcasters need not describe the viewpoint of the program or opinions
expressed on it. The description must be adequate to demonstrate that a
significant purpose of the program is to educate and inform children.
35. We will also require licensees to indicate a specific target
age group for core programs. In enacting the CTA, Congress found that
``[c]hildren's educational programming is most effective when it is
designed to focus on particular age groups and address specific
skills.'' Research has demonstrated that the ability of young children
to comprehend television content varies as a function of age, and that
educational programming should be targeted to an age range of no more
than three to four years to ensure that its content is appropriate to
the developmental level of the intended audience. Requiring licensees
to specify the age group a core program is intended to encourage them
to consider whether the content of the program is suited to the
interests, knowledge, vocabulary, and other abilities of that group. In
addition, this requirement will provide information to parents
regarding the appropriate age for core programs, thereby facilitating
increased program audience and ratings. We decline, however, to
identify particular age ranges of children to which core programs may
be directed. We prefer to leave broadcasters the discretion to develop
programs suited to children with similar educational and informational
needs and to counterprogram to distinct portions of the child audience
as they believe appropriate.
36. In addition, we decline to require broadcasters to serve
particular segments of the child audience. We adhere to our view that
we should not at this time require broadcasters to serve particular
segments of the child audience, particularly in light of the
significant new steps we have adopted to promote the overall
availability of children's educational and informational programming.
Times Core Programming May Be Aired
37. As for the third element of our definition of core programming,
we tentatively proposed in the NPRM to credit as core programming
children's educational programs broadcast between the hours of 6:00
a.m. and 11:00 p.m. After considering the evidence, we will limit the
hours within which programming may qualify as core to a narrower time
frame than that proposed in the NPRM. To qualify as core, a program
must air between the hours of 7:00 a.m. and 10:00 p.m. In specifying
this time period, our intention is to encourage broadcasters to air
educational programming at times the maximum number of child viewers
will be watching. With respect to the morning time limit, recent data
show that during four sample weeks in November 1995, less than 5
percent of children 2 to 17 nationwide were watching television at 6:00
a.m. Monday through Friday, and less than 10 percent of this age group
was in the audience at 6:30 a.m. By 7:00 a.m., however, between 12.5
percent and 14 percent of children 2 to 11 were watching television,
and by 8:00 a.m. more than 20 percent of children 2 to 5, close to 12
percent of children 6 to 8, and just under 9 percent of children 9 to
11, were in the audience. Thus, at 7:00 a.m. Monday through Friday,
nearly four times as many young children are watching television than
at 6:00 a.m. In other words, at 6:00 a.m. on weekdays, 1.3 million
children are watching television. By 7:00 a.m., the number of children
watching television is 5.1 million. Data also show that roughly as many
(i.e., very few) young children are watching television at 6:00 a.m. as
are watching at midnight. With respect to weekend viewing, the same
data show that less than 4 percent of children 2 to 17 were watching
television from 6:00 a.m. to 6:30 a.m. on Saturday. By 7:00 a.m. on
Saturday, however, the percentage of children 2 to 11 in the audience
had risen to between about 5 percent and 7 percent, and continued to
increase sharply to about 16 percent or more by 8:00 a.m. Figures for
Sunday showed a comparable low rate of viewership for all children
prior to 7:00 a.m. followed by a sharp increase between 7:00 a.m. and
8:00 a.m. for children 2 to 11.
38. Despite the relatively small percentage of children in the
audience prior to 7:00 a.m. as compared to after that hour, a number of
studies confirm that broadcasters air a significant percentage of their
educational programming before 7:00 a.m. For example, studies indicate
that approximately 20 percent of educational programs are aired before
7:00 a.m. In light of the evidence demonstrating that only 5 to 10
percent of children are watching television before 7:00 a.m.,
broadcasters appear to be airing a disproportionately large amount of
educational programming during early morning hours in relation to the
relatively few children watching television at that time. As noted in
the NPRM, broadcasters have an incentive to air educational programming
during very early morning hours as this is a less costly time for them
to comply with their educational programming obligation. In view of
these circumstances, we believe it is appropriate to specify that core
programming air no earlier than 7:00 a.m. rather than 6:00 a.m. as
proposed in the NPRM. An early time limit of 7:00 a.m. will ensure that
core programming is shown when more children are likely to be watching
television, especially young children, thus maximizing the benefit of
such programming. In addition, a 7:00 a.m. cut-off will help counter
the economic incentive of broadcasters to air educational and
informational programming to time periods when few children are in the
audience.
39. With regard to the evening limit, we believe it is appropriate
to require that core programming air no later than 10:00 p.m. rather
than 11:00 p.m. as proposed in the NPRM. Recent data
[[Page 43987]]
show that the number of children 2 to 17 watching television drops off
considerably from 10:00 p.m. to 11:00 p.m. For all seven nights
combined (Monday-Sunday), the average number of children 2 to 17 drops
from 13 million at 10:00 p.m. to 8 million at 11:00 p.m. According to
these figures, the number of children 2 to 8 watching television Monday
through Friday peaks at approximately 30 percent at 8:00 p.m., and then
declines sharply to approximately 16 percent by 10:00 p.m. and less
than 10 percent by 11:00 p.m. For older children 9 to 17 Monday through
Friday, viewership peaks somewhat later, between 8:30 and 9:00 p.m. at
approximately 30 percent to 35 percent, and then falls off to
approximately 20 percent to 25 percent at 10:00 p.m. and approximately
12 percent to 19 percent by 11:00 p.m. The data for these age groups
for Saturday and Sunday also show a sharp decline in viewership from
10:00 p.m. to 11:00 p.m. We agree with those commenters who argued that
core programming should be aired before 10:00 p.m. when a larger
proportion of children are awake and watching television. We do not
expect this evening limit to impose a burden on broadcasters, or impede
their program scheduling strategies, as they typically schedule adult
entertainment programming for the 10:00 p.m. to 11:00 p.m. time period.
We therefore will require that, in order to qualify as core,
educational and informational children's programming be aired between
the hours of 7:00 a.m. and 10:00 p.m. We believe that this time period
effectuates the language of the CTA that licensees air programming
``specifically designed'' to serve children's educational and
informational needs, as children are best served by programming that
airs during times more children are watching television.
40. We do not believe that the time period for core programming
must be consistent with the indecency safe harbor (10:00 p.m. to 6:00
a.m.). The indecency safe harbor is intended to provide for the airing
of indecent material when the risk of children in the audience is
minimized, while our purpose in this context is to promote the
availability of children's educational programs when substantial
numbers of children are watching. Nevertheless, the data recited above
indicate that because there is an appreciable drop in the number of
children in the audience after 10:00 p.m. the time frame for purposes
of the core programming definition should be 10:00 p.m. rather than
11:00 p.m.
Regularly Scheduled
41. Turning to the fourth element of our definition of core
programming, we continue to believe that qualifying core programming
should be regularly scheduled, particularly in view of our emphasis on
improving the flow of information to parents through published program
guides and other means to enable them to select educational and
informational programs for their children. Programming that is aired on
a regular basis is more easily anticipated and located by viewers, and
can build loyalty that will improve its chance for commercial success.
A large proportion of television programming, including children's
programming, consists of shows that air on a routine basis. We agree
with those commenters who argue that programs that air regularly can
reinforce lessons from episode to episode. We also believe that
regularly scheduled programs can develop a theme which enhances the
impact of the educational and informational message. Accordingly, to be
considered as core, we will require that educational and informational
programs air on a regular basis. Furthermore, to count as regularly
scheduled programming, such programs must be scheduled to air at least
once a week. Regularly scheduled weekly programming is the dominant
form of television programming. It is more likely to be anticipated by
parents and children, to develop audience loyalty, and to build
successfully upon and reinforce educational and informational messages,
thereby better serving the educational and informational needs of
children. It is also our view that programs that air at less frequent
intervals are less likely to attract a regular audience and to be
anticipated by parents.
42. Television series typically air in the same time slot for 13
consecutive weeks, although some episodes may be preempted for programs
such as breaking news or live sports events. Indeed, evidence suggests
that a significant number of educational and informational programs,
particularly those that air on Saturday, are preempted by sports and
other programming. Although a program must be regularly scheduled on a
weekly basis to qualify as core, we will leave to the staff to
determine, with guidance from the full Commission as necessary, what
constitutes regularly scheduled programming and what level of
preemption is allowable.
43. Specials, including those scheduled to appear on a regular
nonweekly basis, will not be credited as core. As stated above, we
believe that programs that are aired more frequently (i.e., at least
once a week) are more likely to build upon and reinforce educational
and informational messages, more likely to develop audience loyalty,
and more likely to be anticipated by children and parents and thus
attract a regular audience. Nonetheless, we recognize that educational
and informational specials with a significant purpose of serving the
educational and informational needs of children ages 16 and under can
help accomplish the objectives of the CTA and thus can count toward the
second track of our three-hour processing guideline as described below.
The value of such programming is enhanced if parents are informed in
advance of the program and the time it is scheduled to air. We
encourage broadcasters to promote educational and informational
specials and to schedule them far enough in advance to permit
information about the program to be included in program guides.
Substantial Length
44. As to the fifth element of our definition of core programming,
we believe that core programming should be at least 30 minutes in
length. In enacting the CTA, Congress identified a number of examples
of worthwhile educational and informational programs, all of which are
at least one half-hour in length. Although we do not mean to suggest
that these examples in the legislative history are equivalent to
statutory requirements, we believe they reflect the fact that the
dominant broadcast television format is 30 minutes or longer in length.
We believe it reasonable that our rules, which are intended to promote
the accessibility of children's educational and informational
programming, reflect this current industry practice. Programs in these
standard formats are more likely than shorter programming to be
regularly scheduled and to be listed in program guides, and thus are
easier for parents to identify for their child's viewing. In addition,
programs that are 30 minutes or longer allow more time for educational
and informational material to be presented, and a number of commenters
stated that shows of this length can be particularly beneficial to
children. There was no evidence presented in response to the NPRM to
support claims by some parties that children have short attention spans
and thus will not benefit from substantial length programming.
45. We will not credit educational and informational PSAs,
interstitials, or other short segments as core
[[Page 43988]]
programming. The CTA does not preclude broadcasters from counting such
programming as educational and informational; indeed, we recognize that
some short segments have significant public interest benefits.
Nevertheless, while we have previously found that short segment
programming may qualify as specifically designed educational and
informational programming, for the reasons stated above we believe that
programs that are 30 minutes or more in length are a more appropriate
focus of our definition of ``core'' programming. We also note that
short segments and PSAs are less likely to be regularly scheduled or
listed in program guides, and consequently are not easily located and
anticipated by parents and children.
46. We emphasize that programming with a significant purpose of
educating and informing children that is less than 30 minutes in
length, although not credited as core programming, can contribute to
serving children's needs pursuant to the CTA. Such programming can
count toward meeting the three-hour processing guideline when
broadcasters air somewhat less than 3 hours per week of core
programming, as described below. We encourage all broadcasters to
continue to provide a diverse mix of educational and informational
programming, including short segments and PSAs, toward their overall
obligation to provide programming for children.
Identified as Educational and Informational
47. With respect to the sixth element of our definition, we
proposed that stations be required to identify core programs as
educational and informational at the beginning of the program, and to
make available the necessary information for listing these programs as
educational and informational in program guides. As discussed above, we
will adopt both of these proposals in order to improve the information
available to parents regarding programming specifically designed for
children's educational and informational needs, and to assist them in
selecting these programs for their children. We also believe this
measure will make broadcasters more accountable in classifying
programming as specifically designed to educate and inform. Thus, as
with the other aspects of our definition of core programming, we
believe that the identification requirements provide an appropriate
regulatory incentive for licensees to comply with their statutory
obligation to air programming specifically designed to serve children's
educational and informational needs.2
---------------------------------------------------------------------------
\2\ As we noted above, we will exempt noncommercial stations
from these identification requirements.
---------------------------------------------------------------------------
Assessment Guidelines
48. In view of our adoption of a definition of core educational and
informational programming that provides licensees with clearer guidance
regarding the types of programming required to meet their obligation
under the CTA, we believe that our permissive assessment guidelines are
no longer necessary and should be eliminated.
V. Processing Guideline
49. Based on our review of the record, as well as our experience in
enforcing the CTA over the past five years, we have decided to adopt a
three-hour processing guideline. Under this guideline, the Mass Media
Bureau will be authorized to approve the CTA portions of a
broadcaster's renewal application where the broadcaster has aired three
hours per week (averaged over a six month period) of educational and
informational programming that has as a significant purpose serving the
educational and informational needs of children ages 16 and under. A
broadcaster can demonstrate that it has aired three hours per week of
such programming in either of two ways: (A) By checking a box on its
renewal application and providing supporting information indicating
that it has aired three hours per week of regularly scheduled, weekly
shows that are 30 minutes or longer and that otherwise meet the
definition of ``core programming'' (repeats and reruns of core
programming may be counted toward fulfillment of the three-hour
guideline); or (B) By showing that it has aired a package of different
types of educational and informational programming that, while
containing somewhat less than three hours per week of core programming,
demonstrates a level of commitment to educating and informing children
that is at least equivalent to airing three hours per week of core
programming. (By ``package'' we do not mean to imply that the
programming is in any way related by topics or purchased from a single
source.) A broadcaster seeking to secure staff approval under Category
B must show that any reasonable observer would recognize its commitment
to educating and informing children to be at least equivalent to the
commitment reflected in Category A.
50. Broadcasters that do not fall within Category A or B will have
their renewal applications referred to the full Commission. Licensees
referred to the Commission should be on notice by this order that they
will not necessarily be found to have complied with the CTA. Given the
modest nature of the guideline described in Categories A and B, we
expect few broadcasters will fail to meet this benchmark. However, even
if a licensee did not meet the guideline for staff approval, it will
have an opportunity to make a showing before the Commission that it has
satisfied its CTA obligations in other ways. Broadcasters will have a
full opportunity to make this demonstration by, for example, relying in
part on sponsorship of core educational and informational programs on
other stations in the market that increases the amount of core
educational and informational programming on the station airing the
sponsored program and/or on special nonbroadcast efforts which enhance
the value of children's educational and informational television
programming. It is also possible that a licensee might seek to
demonstrate that it suffered such serious economic hardship--such as
bankruptcy--that might excuse noncompliance with the CTA.
51. If we find that a broadcaster has not complied with the CTA, we
will apply the same remedies that we use in enforcing our other rules.
These remedies will vary depending on the severity of the deficiency
based on objective criteria. For less serious deficiencies, we will
consider letters of admonition or reporting requirements. We may also
consider using a ``promise versus performance'' approach. This would be
a prospective remedy under which a licensee would detail its plan for
coming into full compliance with CTA programming obligations; if this
plan meets with Commission approval, the station's license would be
renewed on the condition that the licensee adheres to the plan absent
special circumstances. For more serious violations, we will consider
other sanctions, including forfeitures and short-term renewals. In
extreme cases, we will consider designating the license for hearing to
determine whether the licensee's violations of the CTA and our
implementing rules warrant nonrenewal under the standards set forth in
Section 309(k) of the Communications Act.
52. We believe that a three hour per week processing guideline is a
reasonable benchmark for all broadcast television stations to meet six
years after enactment of the CTA given long-term performance
improvement Congress intended when it passed the Act. The inferences
that we can draw from the
[[Page 43989]]
entire record in this proceeding, including the studies that were
submitted, suggest that this benchmark is a reasonable, achievable
guideline. In the context of the CTA, a processing guideline is clear,
fair and efficient. Our experience in reviewing the children's
programming portions of renewal applications teaches us that a
processing guideline is desirable as a matter of administrative
efficiency in enforcing the CTA and provides desirable clarity about
the extent of a broadcaster's programming responsibilities under the
statute. The guideline will also help ameliorate the inequities that
may arise from the economic disincentives that lead some stations to
air little core programming. Although some broadcasters are airing a
significant amount of educational and informational programming, the
evidence suggests that others are not. A processing guideline will help
minimize the inequities and reduce the disincentives created by below-
average performers by subjecting all broadcasters to the same scrutiny
for CTA compliance by the Commission at renewal time. Moreover, the
greater certainty provided by the processing guideline we adopt should
create a more stable and predictable demand for such programming, and
thus further the CTA's goal of increasing the availability of programs
that teach and inform the nation's children.
53. The processing guideline we adopt is consistent with the CTA in
that it provides a measure of flexibility for licensees in meeting the
requirements of the CTA. We further believe the processing guideline we
adopt is consistent with the text of the CTA, which requires us to
``consider the extent'' to which licensees serve the educational and
informational needs of children through the licensee's overall
programming, including programming specifically designed to serve such
needs.
54. We thus conclude that the public interest and the interests
Congress sought to promote through the CTA will be better served by
this processing guideline approach. We recognize that this is contrary
to our earlier interpretation of the CTA as precluding quantification
of the CTA obligation. In reaching a contrary conclusion, we begin with
the fact that nothing in the statutory language of the CTA forbids the
use of a processing guideline. Furthermore, although there is specific
language in the legislative history, cited in our 1991 Report and Order
and by parties in this proceeding, stating the ``Committee does not
intend that the FCC interpret this section as requiring or mandating a
quantification standard,'' this language does not prohibit us from
seeking to provide greater clarity and guidance through a processing
guideline. Rather, this language simply makes clear that the CTA does
not require quantitative standards or guidelines.
55. We will continue our policy of exempting noncommercial
television stations from specific record-compilation, filing and
submission requirements. As is our current practice, we will require
noncommercial broadcast television stations to maintain documentation
sufficient to show compliance at renewal time with the Act's
programming obligations in response to a challenge or to specific
complaints. Any such showing that a noncommercial station may need to
make will be governed by the definition of core programming and the
processing guideline we adopt.
56. We will monitor the broadcast industry's children's educational
programming performance for three years based upon the children's
programming reports that licensees will file with us annually on an
experimental basis. We will conduct a review of these reports at the
end of this three-year period and take appropriate action as necessary
to ensure that stations are complying with the rules and guidelines we
adopt. To supplement this review, Commission staff will also conduct
selected individual station audits during the next three years to
assess station performance under our new children's educational and
informational programming rules once they go into effect.
57. We invited comment in the NPRM on whether we should sunset any
processing guideline or program standard that we adopt on December 1,
2004, unless affirmatively extended by the Commission. Based on the
record, we do not believe that an automatic expiration of the rules,
absent further Commission action, is appropriate. One of our principal
objectives in implementing the safe harbor processing guideline is to
provide broadcasters and the public with fair notice and certainty
regarding the level of performance at which a licensee can be assured
it is complying with the CTA. Automatic elimination of the processing
guideline is inconsistent with this important objective.
VI. Renewal Procedures
58. We have decided not to require members of the public to
communicate with a licensee prior to filing a petition to deny, as
proposed in the NPRM. Such a requirement could be unduly burdensome to
the public, prevent legitimate complaints from being heard, and deny
the FCC an important source of information. We will nonetheless
encourage parties to seek to resolve CTA programming concerns with the
station before filing a complaint with the Commission, and will
consider whether a petitioner has engaged in such conciliation efforts
as a factor in assessing a petition to deny.
59. We sought comment in the NPRM on whether we should permit
licensees to certify whether they have aired the prescribed amount of
core programming. We decline to adopt this proposal. The parties that
addressed this proposal opposed it on the ground that it would inhibit
public monitoring of broadcaster compliance and was contrary to
Congress' intent that the Commission review a licensee's children's
programming records. Given these concerns, and our decision to require
broadcasters to file children's programming reports with the Commission
for an experimental three-year period, we do not believe a
certification approach is workable.
VII. First Amendment Issues
60. The First Amendment arguments raised by opponents of our
proposed CTA regulations essentially fall into two categories--
arguments that attack the CTA obligation and arguments that attack the
quantification of the CTA obligation. To the extent that some
commenters argue that the CTA is unconstitutional, Congress itself
specifically concluded that ``it is well within the First Amendment
strictures to require the FCC to consider, during the license renewal
process, whether a television licensee has provided information
specifically designed to serve the educational and informational needs
of children in the context of its overall programming.'' Even more
specifically, as the FCC, the courts, and Congress have concluded, a
broadcaster's public interest obligation properly includes an
obligation to serve the educational and informational needs of
children. The question in this proceeding is not whether the Commission
should give effect to the CTA, but how it should do so.
61. The course we adopt today--defining what qualifies as
programming ``specifically designed'' to serve the educational needs of
children and giving broadcasters clear but nonmandatory guidance on how
to guarantee compliance--is a constitutional means of giving effect to
the CTA's programming requirement. ``It does not violate the First
Amendment to treat licensees given the privilege of
[[Page 43990]]
using scarce radio frequencies as proxies for the entire community,
obligated to give suitable time and attention to matters of great
public concern.'' Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 394
(1969). Congress's authority to order ``suitable time and attention to
matters of great public concern'' includes the authority to require
broadcasters to air programming specifically designed to further the
educational needs of children. The airwaves belong to the public, not
to any individual broadcaster. As the Supreme Court observed in CBS,
Inc. v. FCC, ``a licensed broadcaster is `granted the free and
exclusive use of a limited and valuable part of the public domain; when
he accepts that franchise it is burdened by enforceable public
obligations.''' 453 U.S. 367, 395 (1981). The fact that Congress
elected to retain public ownership of the broadcast spectrum and to
lease it for free to private licensees for limited periods carries
significant First Amendment consequences.
62. We have chosen to adopt a processing guideline that requires
broadcasters to show us how they have served the educational and
informational needs of children, and which provides guidance to them
about ways in which they can meet that obligation. We are not, however,
telling licensees what topics to discuss. The Supreme Court has
reaffirmed that ``broadcast programming, unlike cable programming, is
subject to certain limited content restraints imposed by statute and
FCC regulation.'' If the equal-time and personal attack rules and the
rules channeling indecent programming away from times when children are
most likely to be in the viewing audience survive constitutional
scrutiny, then so, a fortiori, would the Commission's considerably less
intrusive proposal for giving meaningful effect to the CTA by defining
``core'' educational programming and establishing a procedure that
broadcasters can use to assure routine staff processing of the CTA
portion of their renewal applications.
63. Our new regulations, like the CTA itself, impose reasonable,
viewpoint-neutral conditions on a broadcaster's free use of the public
airwaves. The CTA and our regulations directly advance the government's
substantial, and indeed compelling, interest in the education of
America's children. As Congress recognized, ``[i]t is difficult to
think of an interest more substantial than the promotion of the welfare
of children who watch so much television and rely upon it for so much
of the information they receive.'' If Congress and the Commission may
ban broadcast of certain material during specified hours, even under
standards of strict scrutiny, it should follow that the Commission's
adoption of less restrictive measures to encourage the airing of
material beneficial to children is consistent with the First Amendment.
That is particularly true because the Children's Television Act is
designed to promote programming that educates and informs children. It
is entirely consistent with the First Amendment to ask trustees of the
public airwaves to pursue reasonable, viewpoint-neutral measures
designed to increase the likelihood that children will grow into adults
capable of fully participating in our deliberative democracy.
64. The measures we adopt today to advance the Nation's interest in
the intellectual development of our children are sustainable under the
analysis in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) as they are
significantly less burdensome than the measure upheld there. Pacifica
upheld a complete ban on a particular type of programming (indecent
programming) during hours when children are likely to be in the
audience, a period which the Commission was later upheld in defining as
16 hours per day (6:00 a.m.-10:00 p.m.) in Action for Children's
Television v. FCC. The measures we adopt today do not ban programming
of any type, they simply notify broadcasters that compliance with the
CTA can be achieved with, on average, less than half an hour a day of
programming expressing any viewpoint on any topic that broadcasters
desire.
65. For those reasons, our implementing rules are constitutional
under the traditional First Amendment standard. But even if evaluated
under a heightened standard, our rules would pass muster because the
interest advanced is compelling and our regulations are narrowly
tailored. As detailed above, our regulations are no more burdensome
than necessary to ensure that children will be able to watch
educational and informational programming. As we explain above, any
programming specifically designed to meet the educational and
informational needs of children can ``count'' for purposes of meeting
the processing guideline. In addition, a broadcaster can rely on other
more general programming and related non-programming efforts to satisfy
its CTA obligation--albeit after full Commission review.
66. We declined to adopt quantitative processing guidelines in 1991
on the ground that they would ``infringe on broadcaster discretion
regarding the appropriate manner in which to meet children's
educational and informational needs.'' Upon further consideration, we
reject that position. Processing guidelines give broadcasters an option
for guaranteeing routine staff processing of the CTA portion of their
renewal applications, but broadcasters remain free to find other ways
to fulfill their obligation. In any event, our initial reluctance to
adopt any form of processing guideline derived in large part from our
wish to initiate implementation of the CTA with as little regulation as
possible. As described above, our subsequent experience has persuaded
us that we should alter our course in the interests of fairness and
efficiency by clarifying ways in which broadcasters can ensure
compliance.
67. Together, the new measures that we adopt today will help
parents, children, and the general public understand the programming
benefits that the CTA is intended to guarantee. That understanding is
necessary to ensure that the public, in exercising informal influence
over the programming choices of broadcasters, can play an important
role in effectuating Congress's intent to increase the amount of
educational children's programming on television. Similarly, both the
clearer definition and the processing guidelines give broadcasters
reasonable notice of nonmandatory ways to guarantee compliance with
their statutory programming obligations. Such clarity is desirable and
helps to narrowly tailor our regulations.
VIII. Effective Dates and Transition Period
68. Our rules regarding on-air identification, program guides,
public file, and reporting requirements will become effective on
January 2, 1997, subject to OMB approval under the Paperwork Reduction
Act, and we will begin to evaluate compliance with these requirements
in renewal applications filed after that date. With respect to our
newly adopted definition of programming specifically designed to serve
the educational and informational needs of children, as well as our
safe harbor processing guideline relating to such programming, we
believe that a longer transition period is appropriate. Accordingly, we
adopt an effective date for these rules of September 1, 1997, and will
begin to evaluate compliance with these provisions in renewal
applications filed after that date. As with all of the provisions
adopted today, these provisions will be applied on a purely prospective
basis.
[[Page 43991]]
69. Thus, renewal applications filed earlier than September 1, 1997
will be assessed for compliance with the program-related provisions of
the CTA based exclusively on the rules and criteria set forth in our
1991 CTA rulemaking proceeding. Beginning September 1, 1997, we will
begin to evaluate renewal applications to determine the extent to which
licensees are providing educational programming that complies with the
new definition of core programming using the new processing guideline.
In this renewal cycle (i.e. for applications filed through April 1999)
such renewals will cover licensee performance that both pre-dates and
post-dates these new rules. Licensee performance during the term that
predates the relevant effective dates will be evaluated under existing
standards and performance that post-dates the rules will be judged
under the new provisions.
Administrative Matters
Paperwork Reduction Act Statement
70. This Report and Order contains new or modified information
collections subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law No. 104-13. It will be submitted to the Office of Management
and Budget (OMB) for review under the PRA. The Commission, as part of
its continuing effort to reduce paperwork burdens, invites OMB, the
general public, and other Federal agencies to comment on the
information collections contained in this Report and Order as required
by the PRA. Public and agency comments are due October 28, 1996.
Comments should address: (a) whether the new or modified collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
OMB Approval Number: 3060-0214.
Title: Section 73.3526 Local public inspection file of commercial
stations.
Form No.: None.
Type of Review: Revision of existing collection.
Respondents: Businesses or other for-profit.
Number of Respondents: 10,250 commercial radio licensees
recordkeepers ; 1,200 commercial TV licensees recordkeepers; 1,200
commercial TV stations making must-carry/retransmission consent
elections; 1,200 commercial TV stations publicizing existence and
location of children's public inspection file.
Estimated time per response: 104 hours per year for radio
recordkeeping; 130 hours per year for TV recordkeeping; 1 hour per
election statement to 150 cable systems per TV station; 5 minutes per
TV station for revising station identification publicizing the
existence and location of children's public inspection file.
Total annual burden: 1,282,100 hours.
Needs and Uses: Section 73.3526 requires that each licensee/
permittee of a commercial broadcast station maintain a file for public
inspection. The contents of the file vary according to type of service
and status. The contents include, but are not limited to, copies of
certain applications tendered for filing, a statement concerning
petitions to deny filed against such applications, copies of ownership
reports and annual employment reports, statements certifying compliance
with filing announcements in connection with renewal applications,
letters received from members of the public, etc. On August 8, 1996,
the Commission adopted this Report and Order in MM Docket No. 93-49
which, among other things, modifies the requirements currently in
Section 73.3526(a)(8)(iii) by removing the requirement to keep records
of educational and informational programming specifically designed to
serve children's needs. This requirement was replaced with a
requirement that commercial television stations place in their public
inspection file, on a quarterly basis, a Children's Television
Programming Report, maintained in a physically separate file from the
other material kept in the public inspection file. Licensees must also
publicize the existence and location of these Reports and file the
Report annually with the Commission for three years. The data are used
by the public and FCC to evaluate information about broadcast
licensees' performance, to ensure that broadcast stations are
addressing issues concerning the community they are licensed to serve,
and to ensure that radio stations entering into time brokerage
agreements comply with Commission policies pertaining to licensee
control and to the Communications Act and the antitrust laws.
Broadcasters are required to send each cable operator in the station's
market a copy of the election statement applicable to that particular
cable operator. Placing these retransmission consent/must-carry
elections in the public file provides public access to documentation of
station's elections which are used by cable operators in negotiations
with television stations and by the public to ascertain why some
stations are/are not carried by the cable systems. The information
contained in the separate children's television file will be used by
the general public, interested parties, and FCC staff to facilitate
public monitoring of broadcasters' educational programming and to
ensure compliance with the CTA. The requirement that children's
television material be kept in a separate file will provide easier
access to such material.
OMB Approval Number: None.
Title: Section 73.673 Public information initiatives regarding
educational and informational programming for children.
Form No.: None.
Type of Review: New Collection.
Respondents: Businesses or other for-profit.
Number of Respondents: 1,200 commercial television broadcast
licensees.
Estimated Time Per Response: 1 minute per program to ensure that
on-the-air identification is provided; 5 minutes per program to convey
children's television information to publishers of program guides.
Total annual burden: 37,440 hours.
Needs and Uses: This new Section 73.673 will require commercial TV
broadcasters to identify programs specifically designed to educate and
inform children at the beginning of those programs, in a form that is
at the discretion of the licensee, and to provide information
identifying such programs and the age groups for which they are
intended to publishers of program guides. These requirements will
provide better information to the public about the shows broadcasters
air to fulfill their obligation to air educational and informational
programming under the CTA. This information will assist parents who
wish to guide their children's television viewing. In addition, if
large numbers of parents use that information to choose educational
programming for their children, it will increase the likelihood that
the market will respond with more educational programming. Better
information should help parents and others to have an effective
dialogue with broadcasters in their community about children's
programming and, where appropriate, to urge programming improvements
without resorting to government intervention.
[[Page 43992]]
Final Regulatory Flexibility Analysis
71. As required by the Regulatory Flexibility Act, as amended
(``RFA''), an Initial Regulatory Flexibility Analysis (``IRFA''), 5
U.S.C. Sec. 603, was incorporated in the Notice of Proposed Rule Making
in MM Docket No. 93-48 (``NPRM''). The Commission sought written public
comments on the proposals in the NPRM, including the IRFA. The
Commission's Final Regulatory Flexibility Analysis (``FRFA'') 3 in
this Report and Order is as follows:
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\3\ This FRFA conforms to the RFA, as amended by the Contract
with America Advancement Act of 1996, Pub. L. 104-121, 110 Stat. 847
(1996) (``CWAAA''). Subtitle II of the CWAAA is The Small Business
Regulatory Enforcement Fairness Act of 1996 (``SBREFA'').
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A. Need for and Objectives of the Rules
72. The rulemaking proceeding was initiated to explore ways to
implement the Children's Television Act of 1990 (``CTA'') more
effectively by facilitating broadcasters' compliance with their
obligation to air educational and informational programming for
children, including programming specifically designed for this purpose,
and by furthering the CTA's goal of increasing the amount of
educational and informational programming available to children. In
Paras. 9-13 of the Report and Order, we discuss the importance of
children's educational television programming, and in Paras. 25-46 and
throughout this order, we discuss the basis of our concerns that our
prior rules to implement the CTA were not producing a level of
performance consistent with the long-term goals of the statute. The
rules adopted herein meet these objectives by giving licensees clear,
efficient, and fair guidance regarding their children's programming
obligation under the CTA. They do this by increasing the flow of
programming information to the public to facilitate enforcement of the
CTA and improve the functioning of the children's programming
marketplace; by adopting a definition of programming that is clearly
``specifically designed'' to educate and inform children (which we
refer to as ``core programming'') to provide licensees guidance in
fulfilling their statutory obligation to air this programming; and by
adopting a three-hour processing guideline to facilitate review at
renewal time by the Commission, as required by the CTA, of licensees'
compliance with the Act.
B. Issues Raised by the Public Comments in Response to the Initial
Regulatory Flexibility Analysis
73. There were no comments submitted specifically in response to
the IRFA. We have, however, taken into account all issues raised by the
public in response to the proposals raised in this proceeding. In
certain instances, we have modified the rules adopted in response to
those comments.
C. Description and Number of Small Entities to Which the Rules Will
Apply
1. Definition of a ``Small Business''
74. Under the RFA, small entities may include small organizations,
small businesses, and small governmental jurisdictions. 5 U.S.C.
Sec. 601(6). The RFA, 5 U.S.C. Sec. 601(3), generally defines the term
``small business'' as having the same meaning as the term ``small
business concern'' under the Small Business Act, 15 U.S.C. Sec. 632. A
small business concern is one which: (1) is independently owned and
operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business
Administration (``SBA''). Id. According to the SBA's regulations,
entities engaged in television broadcasting (Standard Industrial
Classification (``SIC'') Code 4833--Television Broadcasting Stations)
may have a maximum of Sec. 10.5 million in annual receipts in order to
qualify as a small business concern.\4\ 13 CFR Secs. 121.101 et seq.
This standard also applies in determining whether an entity is a small
business for purposes of the RFA.
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\4\ This revenue cap appears to apply to noncommercial
educational television stations, as well as to commercial television
stations. See Executive Office of the President, Office of
Management and Budget, Standard Industrial Classification Manual
(1987), at 283, which describes ``Television Broadcasting Stations
(SIC Code 4833) as:
Establishments primarily engaged in broadcasting visual programs
by television to the public, except cable and other pay television
services. Included in this industry are commercial, religious,
educational and other television stations. Also included here are
establishments primarily engaged in television broadcasting and
which produce taped television program materials.
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75. Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency after consultation with the
Office of Advocacy of the Small Business Administration and after
opportunity for public comment, establishes one or more definitions of
such term which are appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register.'' While we
tentatively believe that the foregoing definition of ``small business''
greatly overstates the number of television broadcast stations that are
small businesses and is not suitable for purposes of determining the
impact of the new rules on small television stations, we did not
propose an alternative definition in the IRFA.5 Accordingly, for
purposes of this Report and Order, we utilize the SBA's definition in
determining the number of small businesses to which the rules apply,
but we reserve the right to adopt a more suitable definition of ``small
business'' as applied to television broadcast stations and to consider
further the issue of the number of small entities that are television
broadcasters in the future. Further, in this FRFA, we will identify the
different classes of small television stations that may be impacted by
the rules adopted in this Report and Order.
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\5\ We have pending proceedings seeking comment on the
definition of and data relating to small businesses. In our Notice
of Inquiry in GN Docket No. 96-113 (In the Matter of Section 257
Proceeding to Identify and Eliminate Market Entry Barriers for Small
Businesses), 61 FR 33066 (June 26, 1996), we requested commenters to
provide profile data about small telecommunications businesses in
particular services, including television, and the market entry
barriers they encounter, and we also sought comment as to how to
define small businesses for purposes of implementing Section 257 of
the Telecommunications Act of 1996, which requires us to identify
market entry barriers and to prescribe regulations to eliminate
those barriers. The comment and reply comment deadlines in that
proceeding have not yet elapsed. Additionally, in our Order and
Notice of Proposed Rule Making in MM Docket No. 96-16 (In the Matter
of Streamlining Broadcast EEO Rule and Policies, Vacating the EEO
Forfeiture Policy Statement and Amending Section 1.80 of the
Commission's Rules to Include EEO Forfeiture Guidelines), 61 FR 9964
(March 12, 1996), we invited comment as to whether relief should be
afforded to stations: (1) based on small staff and what size staff
would be considered sufficient for relief, e.g., 10 or fewer full-
time employees; (2) based on operation in a small market; or (3)
based on operation in a market with a small minority work force. We
have not concluded the foregoing rule making.
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2. Issues in Applying the Definition of a ``Small Business''
76. As discussed below, we could not precisely apply the foregoing
definition of ``small business'' in developing our estimates of the
number of small entities to which the rules will apply. Our estimates
reflect our best judgments based on the data available to us.
77. An element of the definition of ``small business'' is that the
entity not be dominant in its field of operation. We were unable at
this time to define or quantify the criteria that would establish
whether a specific television station is dominant in its field of
operation. Accordingly, the following estimates of small businesses to
which the new rules will apply do not exclude any television station
from the
[[Page 43993]]
definition of a small business on this basis and are therefore
overinclusive to that extent. An additional element of the definition
of ``small business'' is that the entity must be independently owned
and operated. We attempted to factor in this element by looking at
revenue statistics for owners of television stations. However, as
discussed further below, we could not fully apply this criterion, and
our estimates of small businesses to which the rules may apply may be
overinclusive to this extent. The SBA's general size standards are
developed taking into account these two statutory criteria. This does
not preclude us from taking these factors into account in making our
estimates of the numbers of small entities.
78. With respect to applying the revenue cap, the SBA has defined
``annual receipts'' specifically in 13 CFR Sec. 121.104, and its
calculations include an averaging process. We do not currently require
submission of financial data from licensees that we could use in
applying the SBA's definition of a small business. Thus, for purposes
of estimating the number of small entities to which the rules apply, we
are limited to considering the revenue data that are publicly
available, and the revenue data on which we rely may not correspond
completely with the SBA definition of annual receipts.
79. Under SBA criteria for determining annual receipts, if a
concern has acquired an affiliate or been acquired as an affiliate
during the applicable averaging period for determining annual receipts,
the annual receipts in determining size status include the receipts of
both firms. 13 CFR Sec. 121.104(d)(1). The SBA defines affiliation in
13 CFR Sec. 121.103. In this context, the SBA's definition of affiliate
is analogous to our attribution rules. Generally, under the SBA's
definition, concerns are affiliates of each other when one concern
controls or has the power to control the other, or a third party or
parties controls or has the power to control both. 13 CFR
Sec. 121.103(a)(1). The SBA considers factors such as ownership,
management, previous relationships with or ties to another concern, and
contractual relationships, in determining whether affiliation exists.
13 CFR Sec. 121.103(a)(2). Instead of making an independent
determination of whether television stations were affiliated based on
SBA's definitions, we relied on the data bases available to us to
provide us with that information.
3. Estimates Based on Census and BIA Data
80. According to the Census Bureau, in 1992, there were 1,155 out
of 1,478 operating television stations with revenues of less than ten
million dollars. This represents 78 percent of all television stations,
including non-commercial stations. See 1992 Census of Transportation,
Communications, and Utilities, Establishment and Firm Size, May 1995,
at 1-25. The Census Bureau does not separate the revenue data by
commercial and non-commercial stations in this report. Neither does it
allow us to determine the number of stations with a maximum of 10.5
million dollars in annual receipts. Census data also indicates that 81
percent of operating firms (that owned at least one television station)
had revenues of less than 10 million dollars.6
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\6\ Alternative data supplied by the U.S. Small Business
Administration Office of Advocacy indicate that 65 percent of TV
owners (627 of 967) have less than $10 million in annual revenue and
that 39 percent of TV stations (627 of 1,591) have less than $10
million in annual revenue. These data were prepared by the U.S.
Census Bureau under contract to the Small Business Administration.
U.S. Small Business Administration 1992 Economic Census Industry and
Enterprise Receipts Report, Table 2D (U.S. Census Bureau data
adopted by SBA). These data show a lower percentage of small
businesses than the data available directly from the Census Bureau.
Therefore, for purposes of our worst case analysis, we will use the
data available directly from the Census Bureau.
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81. We have also performed a separate study based on the data
contained in the BIA Publications, Inc. Master Access Television
Analyzer Database,7 which lists a total of 1,141 full-power
commercial television stations. We have excluded Low Power Television
(LPTV) stations or translator stations, which will not be subject to
the new requirements, from our calculations.8 It should be noted
that, using the SBA definition of small business concern, the
percentage figures derived from the BIA data base may be underinclusive
because the data base does not list revenue estimates for noncommercial
educational stations, and these are therefore excluded from our
calculations based on the data base.9 While noncommercial stations
are not subject to the new reporting or recordkeeping requirements
adopted in the Report and Order, the new definition (except for the
reporting requirements) and the processing guideline will apply to
them. The BIA data indicate that, based on 1995 revenue estimates, 440
full-power commercial television stations had an estimated revenue of
10.5 million dollars or less. That represents 54 percent of commercial
television stations with revenue estimates listed in the BIA program.
The data base does not list estimated revenues for 331 stations. Using
a worst case scenario, if those 331 stations for which no revenue is
listed are counted as small stations, there would be a total of 771
stations with an estimated revenue of 10.5 million dollars or less,
representing approximately 68 percent of the 1,141 commercial
television stations listed in the BIA data base.
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\7\ BIA Publications, Inc., Chantilly, VA.
\8\ It should be noted that the Commission has attempted to
minimize the burden on small entities by not applying the rules to
LPTV stations and television translators. As of June 30, 1996, there
were 1,903 LPTV stations and 4,910 television translators licensed
in the United States. FCC News Release, Broadcast Station Totals as
of June 30, 1996, Mimeo No. 63298, released July 10, 1996.
\9\ In the Joint Comments of the Association of America's Public
Television Stations and the Public Broadcasting Service (p. 6), it
is reported that there are 38 public television stations with annual
operating budgets of less than $2 million. As of June 30, 1996,
there were 364 public television stations licensed. FCC News
Release, Broadcast Station Totals as of June 30, 1996, released July
10, 1996.
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82. Alternatively, if we look at owners of commercial television
stations as listed in the BIA data base, there are a total of 488
owners. The data base lists estimated revenues for 60 percent of these
owners, or 295. Of these 295 owners, 158 or 54 percent had annual
revenues of 10.5 million dollars or less. Using a worst case scenario,
if the 193 owners for which revenue is not listed are assumed to be
small, the total of small entities would constitute 72 percent of
owners.
83. In summary, based on the foregoing worst case analysis using
census data, we estimate that our rules will apply to as many as 1,155
commercial and non-commercial television stations (78 percent of all
stations) that could be classified as small entities. Using a worst
case analysis based on the data in the BIA data base, we estimate that
as many as approximately 771 commercial television stations (about 68
percent of all commercial televisions stations) could be classified as
small entities. As we noted above, these estimates are based on a
definition that we tentatively believe greatly overstates the number of
television broadcasters that are small businesses. Further, it should
be noted that under the SBA's definitions, revenues of affiliated
businesses that are not television stations should be aggregated with
the television station revenues in determining whether a concern is
small. Therefore, these estimates overstate the number of small
entities since the revenue figures on which they are based do not
include or
[[Page 43994]]
aggregate such revenues from non-television affiliated companies.
84. It should also be noted that the foregoing estimates do not
distinguish between network-affiliated 10 stations and independent
stations. As of April, 1996, the BIA data base indicates that about 73
percent of all commercial television stations were affiliated with the
ABC, CBS, NBC, Fox, UPN, or WB networks. Moreover, seven percent of
those affiliates have secondary affiliations.11 We assume that
compliance with the requirements adopted in the Report and Order will
be less burdensome for network affiliates than for independent
stations, as the networks may provide some core programming to network
affiliates at lower costs than the network affiliates might otherwise
be able to obtain. The networks might also otherwise assist with the
fulfillment of additional requirements.
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\10\ In this context, ``affiliation'' refers to any local
broadcast television station that has a contractual arrangement with
a programming network to carry the network's signal. This definition
of affiliated station includes both stations owned and operated by a
network and stations owned by other entities.
\11\ Secondary affiliations are secondary to the primary
affiliation of the station and generally afford the affiliate
additional choice of programming.
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4. Alternative Classification of Small Stations
85. An alternative way to classify small television stations is by
the number of employees. The Commission currently applies a standard
based on the number of employees in administering its Equal Employment
Opportunity (``EEO'') rule for broadcasting.12 Thus, radio or
television stations with fewer than five full-time employees are
exempted from certain EEO reporting and recordkeeping
requirements.13 We estimate that the total number of commercial
television stations with 4 or fewer employees is 132 and that the total
number of noncommercial educational television stations with 4 or fewer
employees is 136.14
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\12\ The Commission's definition of a small broadcast station
for purposes of applying its EEO rule was adopted prior to the
requirement of approval by the Small Business Administration
pursuant to Section 3(a) of the Small Business Act, 15 U.S.C.
Sec. 632(a), as amended by Section 222 of the Small Business Credit
and Business Opportunity Enhancement Act of 1992, Pub. L. No. 102-
366, Sec. 222(b)(1), 106 Stat. 999 (1992), as further amended by the
Small Business Administration Reauthorization and Amendments Act of
1994, Pub. L. No. 103-403, Sec. 301, 108 Stat. 4187 (1994). However,
this definition was adopted after public notice and an opportunity
for comment. See Report and Order in Docket No. 18244, 35 FR 8825
(June 6, 1970).
\13\ See, e.g., 47 CFR Sec. 73.3612 (Requirement to file annual
employment reports on Form 395-B applies to licensees with five or
more full-time employees); First Report and Order in Docket No.
21474 (In the Matter of Amendment of Broadcast Equal Employment
Opportunity Rules and FCC Form 395), 44 FR 6722 (Feb. 2, 1979). The
Commission is currently considering how to decrease the
administrative burdens imposed by the EEO rule on small stations
while maintaining the effectiveness of our broadcast EEO
enforcement. Order and Notice of Proposed Rule Making in MM Docket
No. 96-16 (In the Matter of Streamlining Broadcast EEO Rule and
Policies, Vacating the EEO Forfeiture Policy Statement and Amending
Section 1.80 of the Commission's Rules to Include EEO Forfeiture
Guidelines), 61 FR 9964 (March 12, 1996). One option under
consideration is whether to define a small station for purposes of
affording such relief as one with ten or fewer full-time employees.
Id. at para. 21.
\14\ We base this estimate on a compilation of 1995 Broadcast
Station Annual Employment Reports (FCC Form 395-B), performed by
staff of the Equal Opportunity Employment Branch, Mass Media Bureau,
FCC.
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86. Size of the station based on the number of employees is only
one factor in assessing the impact of the compliance requirements on
small stations. For example, as discussed below, the resources that may
often be provided from the networks to network affiliates and from
program syndicators to broadcasters showing their programming should
ease the compliance requirements by providing educational program
descriptions which can be used in public information dissemination.
Small group-owned stations may also receive similar benefits from their
parent companies when programs have been produced or acquired for
multiple stations in the group. However, we do not have the necessary
information at this time to determine the number of small group-owned
stations, either under the SBA's definition or based on those stations
that have fewer than five full-time employees.
D. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements of the Rules
87. The rules adopted in the Report and Order require commercial
television broadcasters, regardless of size, but not including LPTV or
translator stations, to identify programs specifically designed to
educate and inform children at the time those programs are aired (at
the beginning of the program), in a form that is at the discretion of
the licensee, and to provide information identifying such programs and
the age groups for which, in the opinion of the broadcaster, they are
intended, to publishers of program guides.
88. Our rules currently require commercial licensees to complete
reports containing information about the children's programming they
air, including time, date, duration, and description of the programs.
These reports may be produced either quarterly or annually at the
licensee's discretion. Licensees maintain these reports in their public
inspection file.
89. The new rules will require commercial television licensees to
provide a brief explanation in their children's programming reports of
how particular programs meet the definition of programming specifically
designed to meet children's educational and informational needs that is
adopted in the Report and Order. Licensees will be required to produce
their children's reports quarterly. For an experimental period of three
years, broadcasters will be required to file these reports with the
Commission on an annual basis (i.e., four quarterly reports filed
jointly once a year). Broadcasters will also be required to separate
their children's programming reports from other materials in their
public files and to publicize in an appropriate manner the existence
and location of the children's programming reports. The Commission
will, at a later date, adopt a standardized form for the programming
reports. We will also permit, but not require, electronic filing of
children's programming reports. Finally, the Commission will, at a
later date, revise its license renewal form to reflect the new three
hour core programming processing guideline, discussed below.
90. While licensees remain ultimately responsible for ensuring
compliance with our rules, we anticipate that they may be able to refer
to information provided by the broadcast networks and program suppliers
in assessing the educational and informational purpose of programming.
Further, we anticipate that station programming and clerical staff will
continue to be able to perform the other reporting and recordkeeping
functions required under the rules.
91. Under the new rules, commercial television licensees will also
be required to designate a liaison at the station for children's
programming and to include the name and method of contacting that
person in the children's programming reports. In order to minimize
burdens, the Report and Order exempts noncommercial educational
television stations from this requirement. With respect to the liaison,
the rules do not require that a new or additional employee be hired to
perform this function, and we believe that it is reasonable to require
licensees to designate a liaison for children's programming since
someone at each station must, as a practical matter, be responsible for
carrying out the broadcaster's responsibility under the
[[Page 43995]]
CTA to air children's educational television programming and since
licensees are currently required to maintain children's programming
reports and letters received from the public in their public inspection
file.
92. To minimize regulatory burdens, the new rules exempt
noncommercial educational television stations from the foregoing
reporting, filing, and submission requirements and public information
initiatives.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
93. In general, we have attempted to keep burdens on television
broadcast stations to a minimum, as discussed below. The regulatory
burdens we have imposed are necessary to ensure compliance with the
CTA.
1. Public Information Initiatives
94. We adopted the requirements that commercial television
broadcasters identify children's educational and informational programs
and designate a liaison for children's programming, as well as the
revised public file requirements, based on the goal of affording the
public sufficient information to play an active role in assuring that
the goals of the CTA are met. We will also make information obtained
from the children's programming reports available on our Internet World
Wide Web site if it is feasible so that it will be accessible by the
public. Allowing the public to play an active role will, in turn, allow
the Commission to minimize its involvement in evaluating the quality of
children's programming and to rely more on the marketplace to achieve
the goals of the CTA, thereby minimizing regulatory burdens.
95. We determined that these information requirements should not
impose significant additional burdens on licensees, and, in adopting
the rules, the Commission has attempted to minimize regulatory and
significant economic burdens on small businesses and facilitate
compliance with reporting rules wherever possible.
a. Identification of Core Programming
96. The burden of the on-air identification requirement on all
commercial television broadcast stations, including small stations, is
minimized because the form of the identification is at their
discretion. The rules adopted provide greater discretion to television
stations and are thus less burdensome than if we had adopted a
requirement that broadcasters use an icon for such identification, as
suggested in the NPRM. Further, such an identification requirement may
benefit small stations by affording a potential increase in audience
size. An on-air identification requirement will make broadcasters more
accountable to the public and further the goal of minimizing the
possibility that the Commission would be forced to decide whether
particular programs serve the educational and informational needs of
children. We note that it is standard practice in the broadcast
industry for stations to make various on-air announcements promoting
their programming. We further note that under longstanding Commission
rules, stations must make station identification and sponsorship
announcements. See 47 CFR Secs. 73.1201, 73.1212.
b. Program Guides
97. Television stations currently submit programming information to
programming guides, which publish such information without cost to the
broadcasters. See para. 60 supra. Our current rules do not require
broadcasters to provide this information to the guides. However, it has
become a well-established practice to provide specialized information
about programs, such as which programs are closed captioned for the
hearing impaired. Our new rules will require commercial television
broadcasters to provide to publishers of program guides information
identifying core programs, and the age group for which, in the opinion
of the broadcaster, the program is intended.15 This information
will assist parents in finding suitable programs for their children and
be useful to parents and others who wish to monitor station performance
in complying with the CTA. We recognize that broadcasters cannot
require publishers to print this information. The information, however,
is more likely to be in the program listings if broadcasters routinely
provide it. This requirement is a minor extension of what small
stations already do for their standard programming. Stations are not
required to purchase advertising space in TV Guide or local TV weekly
publications, only to provide information to them. As broadcasters
routinely provide such information about their programming to program
guides and designate core programs for their public records, we believe
it would require a minimum of effort, but have a major positive effect,
for them to do so.
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\15\ As described above in Section IV of the Report and Order,
we will require that commercial broadcasters indicate the age of the
target child audience in their program description.
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c. Public File Requirements
98-99. Our rules currently require commercial television licensees
to compile reports, containing information about the children's
programming they air, including the time, date, duration, and
description of the programs. Licensees maintain these reports in the
station's public inspection file. Our new rules will require commercial
television licensees to prepare these reports using a standardized
format on a quarterly basis. The reports will describe their efforts to
comply with the CTA-related programming requirements outlined in this
decision. Licensees will be required to provide a brief explanation of
how particular programs meet the definition of ``core'' programming.
Commercial television licensees will be required to separate the
children's programming reports from the other reports they maintain in
their public files.
100. The impact of this requirement will depend on the specific
class into which a small station falls. Network-affiliated stations,
regardless of staff size, may have network support in fulfilling
aspects of the reporting requirement for the programs that are
broadcast by the network. For example, we assume that, in developing
the educational and informational programming they furnish to
affiliates, networks will have prepared program information about the
educational and informational benefits to children that can be
disseminated to affiliated stations.16 Assuming that the network
furnishes such material, a small station may be able to rely on it in
preparing its programming report, with respect to the network programs
that it airs. In addition, program syndicators may also provide the
information needed for a small station to complete its children's
programming reports with respect to the programs furnished by the
syndicator, further lessening any burden on small stations.
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\16\ See e.g., NBC Comments at 7, 19; NBC Reply Comments at 9
(written articulation of the educational theme or goal of each
educational segment furnished to affiliates for inclusion in their
children's programming reports); see also ABC Comments at 12 (ABC
currently provides to its affiliates a brief explanation of how
particular programs meet the definition of educational and
informational programming for children).
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101. A small station that wishes to produce its own children's
educational programming will not have the benefit of any such material
provided by a network or syndicator in fulfilling the program report
requirements. However, assuming a determination of the
[[Page 43996]]
educational and informational attributes of the program has been made
at the pre-production/development stage, additional analysis may not be
necessary in preparing the programming report. It is not required, nor
should it be necessary, for a small station to hire additional
personnel or a children's educational expert to prepare such reports.
The Commission considered but specifically rejected such a requirement
in order to minimize regulatory burdens on licensees.
102. A number of broadcasters and other commenters requested that
the Commission develop a standardized form to facilitate their assembly
of children's programming reports, which they are required to do under
our current rules. See Report and Order, para. 69 and n. 174 supra. So
that the reporting burden will be minimized, the Commission will
develop a standardized form to be used for preparing the quarterly
children's programming reports. We believe that the standardized form
will make compliance with the reporting requirements easier and less
burdensome for all entities, including small entities. See Report and
Order, Paras. 69-72.
103. With regard to licensees publicizing the availability and
location of the programming reports, we believe that this requirement
should not be burdensome on small entities because we do not prescribe
the manner in which licensees are to publicize the availability and
location of the reports, but allow the licensees flexibility to do so
in an appropriate manner. Therefore, licensees may choose to fulfill
the requirement in a manner that is least burdensome to them, provided
they do so in an appropriate manner.
104. Our new rules also require commercial television licensees to
designate a liaison for children's programming and to include the name
and method of contacting that individual in the station's children's
programming reports.17 Licensees already employ sufficient staff
in order to maintain the children's programming reports 18 and
letters received from the public in their public inspection files, as
required by our current regulations.19 Thus, we do not expect that
the new requirement for designation of a liaison will impose a
significant additional burden on licensees. The rules do not require
that a new or additional employee be hired to perform this function,
and we believe that it is reasonable to require licensees to designate
a liaison for children's programming since someone at each station
must, as a practical matter, be responsible for carrying out the
broadcaster's responsibility under the CTA to air children's
educational television programming. In addition, our rules place no
limitations on the licensee's discretion in assigning the liaison
function and determining how it will be carried out.
---------------------------------------------------------------------------
\17\ As noted earlier, noncommercial educational television
licensees are exempt from this requirement.
\18\ NPRM, 60 FR 20586; 47 CFR Sec. 73.1202.
\19\ 47 CFR Sec. 73.1202. Commercial stations are required to
maintain a number of other reports, records, and applications in
their public inspection file as well. See id. at Sec. 73.3526.
---------------------------------------------------------------------------
2. Definition of ``Specifically Designed'' Programming
105. The CTA requires the Commission to consider the extent to
which a broadcaster has ``served the educational and informational
needs of children through the licensee's overall programming, including
programming specifically designed to serve such needs.'' We determined
that we should adopt a definition of programming specifically designed
to serve children's educational and informational needs (or ``core
programming'') because our current definition is very broad, does not
distinguish between general audience/entertainment programs and
programs that are specifically designed to educate and inform, and does
not provide licensees with sufficient guidance regarding their
obligation to air ``specifically designed'' programming as required by
the CTA. The definition is designed to be sensitive to our concerns
that the rules be explicit, clear, simple, and fair and that they
afford clear guidance to licensees as to their obligations under the
CTA.
106. In adopting the definition, we attempted to minimize
regulatory burdens and economic impact on small entities. For example,
the Commission rejected a proposal advanced by several commenters that
licensees be required to consult with educational experts in order for
a program to qualify as core programming. Report and Order, para. 90.
The Commission rejected this proposal in order to minimize burdens on
our licensees. An element of our core programming definition is the
requirement that commercial television licensees specify in writing in
their children's programming report the educational and informational
objective of a core program as well as its target child audience. While
we recognize this element of the revised definition may impose an
additional paperwork burden on commercial licensees, we conclude that
the burden is outweighed by the benefits of the proposal. See Report
and Order, Paras. 91-95. The description of a program's educational
objective does not have to be lengthy, and we do not require that the
description be prepared by an expert.
3. Processing Guideline
107. We adopt a three-hour per week safe harbor processing
guideline. A processing guideline is consistent with the text of the
CTA and with the First Amendment, and we conclude that our current ad
hoc approach provides inadequate guidance to licensees and Commission
staff. Under the new processing guideline adopted, we would permit
staff approval of the children's programming portion of the renewal
application where the three-hour benchmark is met. A measure of
flexibility is afforded to licensees, including small businesses, since
a licensee falling somewhat short of this benchmark could still receive
staff approval based on a showing that it has aired a package of
different types of educational and informational programming that,
while containing somewhat less than three hours per week of core
programming, demonstrates a level of commitment to educating and
informing children that is at least equivalent to airing three hours
per week of core programming. In this regard, specials, PSAs, short-
form programs and regularly scheduled non-weekly shows with a
significant purpose of educating and informing children can count
toward the three hour per week processing guideline. Renewal
applications that do not meet these criteria will be referred for
consideration to the Commission, where they will have a full
opportunity to demonstrate compliance with the CTA. Such applicants may
be able to demonstrate compliance, for example, by relying in part on
sponsorship of core educational and informational programs on other
stations in the market that increases the amount of core educational
and informational programming on the station airing the sponsored
program and/or on special nonbroadcast efforts that enhance the value
of children's educational and informational television programming. A
processing guideline is consistent with the text of the CTA that the
Commission ``consider the extent'' to which licensees serve the
``educational and informational needs of children through the
licensee's overall programming, including programming specifically
designed to serve such needs.'' Report and Order, Paras. 120-130.
108. In adopting this guideline, the Commission seeks to minimize
the
[[Page 43997]]
regulatory burdens and economic impact on licensees, including small
businesses, by delegating authority to the Mass Media Bureau to approve
Category A or Category B renewal applications. See Report and Order,
Paras. 120-34. Additionally, the Commission allows broadcasters
scheduling flexibility by adopting a per-week rather than a per-day
safe harbor and by permitting the three-hour benchmark to be averaged
over a six-month period, and further attempts to minimize the economic
impact by allowing repeats and reruns of core programming to be counted
toward fulfillment of the three-hour guideline.
109. With respect to network affiliates, we expect that networks,
as they have in the past, will provide programming and compliance
information to their affiliates so that, regardless of revenues, the
burden on network-affiliated stations will be minimized. Indeed, as
noted in para. 132 of the Report and Order, Westinghouse Electric
Corporation has announced that it will provide three hours per week of
children's educational programming over the CBS network and on its
owned and operated stations by the fall 1997 season. Further, we assume
that the three-hour per week guideline will not be burdensome because,
as the National Association of Broadcasters (``NAB'') reports,
broadcasters today air an average of more than four hour per week of
total educational and informational programming under the CTA. See
Report and Order, para. 40. Even though that figure may be inflated by
the inclusion of some programming that may not qualify under the
definition of core programming, it suggests that a three-hour
processing guideline is a reasonable level that should not be
particularly difficult for broadcasters to achieve.
110. The Commission considered but did not adopt two alternative
options to the processing guideline: (1) Commission monitoring of the
amount of educational and informational programming on the air during a
period of time following the adoption of measures to improve the flow
of programming information to the public and a definition of core
programming; and (2) adoption of a programming standard that would
require broadcasters to air a specified average number of hours of
programming specifically designed to serve the educational and
informational needs of children. The rule adopted furthers the goal of
making the Commission's rules and processes as clear, efficient, and
fair as possible, while affording licensees discretion to augment their
core programming responsibility with program sponsorship or other
exceptional programming efforts.
111. The Commission concludes that the option chosen strikes the
appropriate balance between the need for certainty and flexibility in
enforcing the CTA and is thus preferable to both the monitoring and
programming standard proposals set forth in the NPRM. It should be
noted that the option chosen, a processing standard, is less burdensome
and affords licensees, including small businesses, greater flexibility
than if the Commission had imposed a programming standard. Based on the
record, the Commission does not believe that three hours of educational
programming would be difficult for most broadcasters to achieve. While
mere monitoring might be less burdensome than a processing guideline,
the Commission concludes in the Report and Order that it is inadvisable
to process renewals under the CTA without some quantitative guidelines
that are published in advance to provide licensees notice as to means
by which they can fulfill their CTA obligations.
112. Finally, the Commission will revise its license renewal form
to reflect the new three hour core programming processing guideline. To
minimize the regulatory burden and economic impact on broadcasters,
including small businesses, they will be able to demonstrative
compliance either by checking a box and providing supporting
information indicating that they have aired an average of three hours
per week of core programming or by showing that they have aired a
package of different types of educational and informational programming
that, while containing somewhat less than three hours per week of core
programming, demonstrates a level of commitment to educating and
informing children that is at least equivalent to airing three hours
per week of core programming. In revising the renewal form, we will
seek to minimize the reporting burden on licensees, including small
businesses, by, for example, permitting them to rely on the children's
programming reports they have previously prepared.
F. Report to Congress
113. The Secretary shall send a copy of this Final Regulatory
Flexibility Analysis along with this Report and Order in a report to
Congress pursuant to Section 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996, codified at 5 U.S.C. Section
801(a)(1)(A). A copy of this FRFA will also be published in the Federal
Register.
Ordering Clauses
114. Accordingly, it is Ordered that, pursuant to the authority
contained in Sections 4 (i) & (j), 303(r), 308, and 403 of the
Communications Act of 1934, 47 U.S.C. 154 (i) & (j), 303(r), 308, 403,
as amended, and the Children's Television Act of 1990, 47 U.S.C.
303b(a), 303b(b), and 394, Part 73 of the Commission's Rules, 47 CFR
Part 73 IS AMENDED as set forth below. The rule changes to Sections
73.673, 73.3526(a)(8)(iii), and 73.3500, 47 CFR Secs. 73.673,
73.3526(a)(8)(iii), 73.3500, shall take effect on January 2, 1997,
subject to OMB approval under the Paperwork Reduction Act. Appropriate
public notice will be given upon OMB's action to confirm this effective
date. The rule changes to Sections 73.671 and 73.672, 47 CFR
Secs. 73.671, 73.672, shall take effect on September 1, 1997.
115. It is further ordered that the new or modified paperwork
requirements contained in this Report and Order (which are subject to
approval by the Office of Management and Budget) will go into effect
upon OMB approval.
116. It is further ordered that the Secretary shall send a copy of
this Report and Order, including the Final Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with paragraph 603(a) of the Regulatory
Flexibility Act, Public Law No. 96-354, 94 Stat. 1164, 5 U.S.C. 601 et
seq. (1981).
117. It is further ordered that this proceeding is terminated.
List of Subjects in 47 CFR Part 73
Television.
Federal Communications Commission
William F. Caton,
Acting Secretary.
Rule Changes
Part 73 of Title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--RADIO BROADCAST SERVICES
1. The authority citation for Part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334.
2. Section 73.671 is amended by removing the Note following the
section, revising paragraph (a), and by adding paragraph (c) and Notes
1 and 2 to read as follows:
[[Page 43998]]
Sec. 73.671 Educational and informational programming for children.
(a) Each commercial and noncommercial educational television
broadcast station licensee has an obligation to serve, over the term of
its license, the educational and informational needs of children
through both the licensee's overall programming and programming
specifically designed to serve such needs.
* * * * *
(c) For purposes of this section, educational and informational
television programming is any television programming that furthers the
educational and informational needs of children 16 years of age and
under in any respect, including the child's intellectual/cognitive or
social/emotional needs. Programming specifically designed to serve the
educational and informational needs of children (``Core Programming'')
is educational and informational programming that satisfies the
following additional criteria:
(1) It has serving the educational and informational needs of
children ages 16 and under as a significant purpose;
(2) It is aired between the hours of 7:00 a.m. and 10:00 p.m.;
(3) It is a regularly scheduled weekly program;
(4) It is at least 30 minutes in length;
(5) The educational and informational objective and the target
child audience are specified in writing in the licensee's Children's
Television Programming Report, as described in Sec. 73.3526(a)(8)(iii);
and
(6) Instructions for listing the program as educational/
informational, including an indication of the age group for which the
program is intended, are provided by the licensee to publishers of
program guides, as described in Sec. 73.673(b).
Note 1 to Sec. 73.671: For purposes of determining under this
section whether programming has a significant purpose of serving the
educational and informational needs of children, the Commission will
ordinarily rely on the good faith judgments of the licensee.
Commission review of compliance with that element of the definition
will be done only as a last resort.
Note 2 to Sec. 73.671: The Commission will use the following
processing guideline in assessing whether a television broadcast
licensee has complied with the Children's Television Act of 1990
(``CTA''). A licensee that has aired at least three hours per week
of Core Programming (as defined in paragraph (c) of this section and
as averaged over a six month period) will be deemed to have
satisfied its obligation to air such programming and shall have the
CTA portion of its license renewal application approved by the
Commission staff. A licensee will also be deemed to have satisfied
this obligation and be eligible for such staff approval if the
licensee demonstrates that it has aired a package of different types
of educational and informational programming that, while containing
somewhat less than three hours per week of Core Programming,
demonstrates a level of commitment to educating and informing
children that is at least equivalent to airing three hours per week
of Core Programming. In this regard, specials, PSAs, short-form
programs, and regularly scheduled non-weekly programs with a
significant purpose of educating and informing children can count
toward the three hour per week processing guideline. Licensees that
do not meet these processing guidelines will be referred to the
Commission, where they will have full opportunity to demonstrate
compliance with the CTA (e.g., by relying in part on sponsorship of
core educational/informational programs on other stations in the
market that increases the amount of core educational and
informational programming on the station airing the sponsored
program and/or on special nonbroadcast efforts which enhance the
value of children's educational and informational television
programming).
Sec. 73.672 [Removed and Reserved]
3. Section 73.672 is removed and reserved.
4. New Section 73.673 is added to read as follows:
Sec. 73.673 Public information initiatives regarding educational and
informational programming for children.
(a) Each commercial television broadcast licensee shall identify
programs specifically designed to educate and inform children at the
beginning of the program, in a form that is in the discretion of the
licensee.
(b) Each commercial television broadcast station licensee shall
provide information identifying programming specifically designed to
educate and inform children to publishers of program guides. Such
information shall include an indication of the age group for which the
program is intended.
5. Section 73.3526(a)(8)(iii) is revised to read as follows:
Sec. 73.3526 Local public inspection file of commercial stations.
(a) * * *
(8)(i) * * *
(ii) * * *
(iii) For commercial TV broadcast stations, on a quarterly basis, a
completed Children's Television Programming Report (``Report''), on FCC
Form 398, reflecting efforts made by the licensee during the preceding
quarter, and efforts planned for the next quarter, to serve the
educational and informational needs of children. The Report for each
quarter is to be filed by the tenth day of the succeeding calendar
quarter. The Report shall identify the licensee's educational and
informational programming efforts, including programs aired by the
station that are specifically designed to serve the educational and
informational needs of children, and it shall explain how programs
identified as Core Programming meet the definition set forth in
Sec. 73.671(c). The Report shall include the name of the individual at
the station responsible for collecting comments on the station's
compliance with the Children's Television Act, and it shall be
separated from other materials in the public inspection file. Licensees
shall publicize in an appropriate manner the existence and location of
these Reports. For an experimental period of three years, licensees
shall file these Reports with the Commission on an annual basis, i.e.,
four quarterly reports filed jointly each year, preferably in
electronic form. These Reports shall be filed with the Commission on
January 10, 1998, January 10, 1999, and January 10, 2000.
* * * * *
6. Section 73.3500 is amended by adding entry 398 in numerical
order to read as follows:
Sec. 73.3500 Application and report forms.
* * * * *
------------------------------------------------------------------------
Form number Title
------------------------------------------------------------------------
* * * * *
398............................. Children's Television Programming
Report.
------------------------------------------------------------------------
[FR Doc. 96-21798 Filed 8-26-96; 8:45 am]
BILLING CODE 6712-01-P
