The FCC has issued its first fine to a television station for failure to have a sufficient amount of children's educational or informational (E/I) programming, as opposed to failure to have sufficient record-keeping with regard to such programming. The Class A TV station was hit with a $20,000 fine for failure to air core children's programming for a portion of its license term. This failure, the FCC found, constituted a violation of Section 73.671 of its rules. The commission more than doubled the base fine for Section 73.671 violations from the standard $8000 to $20,000.
Defining the rule
This fine was levied despite the fact that the rule cited does not contain an absolute requirement for three hours per week of core programming. For purposes of the kidvid rules, core programming is defined as E/I programming for children ages 16 and under, which is:
- aired between 7:00 a.m. and 10:00 p.m.;
- a regularly scheduled weekly program;
- at least 30 minutes in length;
- described in the station's children's television programming report;
- listed in information provided to program guide publishers; and
- broadcast with the E/I logo or bug.
Section 73.671 of the commission's rules specifies that a station that broadcasts an average of three hours per week of core programming will be presumed to have met the requirements of the Children's Television Act, and it can have its license renewed routinely by the FCC's staff. According to the rule, a station may demonstrate that it has fulfilled its obligations through an alternate package of programming that shows an equivalent commitment to the educational needs of children. Further, the rule specifies that a station that does not meet the processing standards for routine renewal will be referred to the full commission, where the licensee will be provided a full opportunity to comply with the Children's Television Act.
Where the station went wrong
In this case, the record showed that while the station sought out quality E/I programming, it neglected to air core programming on a regular basis for approximately three years. However, the station did undertake other initiatives for children. The licensee did not begin airing core children's programming until midway through its seven-year license term.
The licensee submitted information to the commission about its other efforts for children, but the commission did not take the additional information into account. Moreover, the staff did not refer the matter to the full commission as the rule provides. Instead, the staff's decision to issue a $20,000 fine states that the failure to broadcast at least three hours per week of core programming constitutes a willful and repeated violation of Section 73.671 of the rules. There was no discussion of the fact that the rule establishes an average of three hours per week as a processing standard, not an absolute requirement. And there was little discussion of how the staff arrived at the amount of the fine beyond stating that the base fine is $8000.
This case, whether or not it was decided correctly and whether or not it was the conversion of a mere processing standard into a mandatory programming dictate — a possible violation of the First Amendment — nevertheless underscores how important it is for stations to continue to air at least three hours per week of core E/I programming.
Harry C. Martin is a past president of the Federal Communications Bar Association and a member of Fletcher, Heald and Hildreth, PLC.
Send questions and comments to:firstname.lastname@example.org
- Oct. 1 is the deadline for TV stations in the following states and territories to file their biennial ownership reports: Alaska, Florida, Hawaii, Oregon, the Pacific Islands, Puerto Rico, the Virgin Islands and Washington.
- Oct. 1 is the deadline for TV stations and Class A TV stations in the following states and territories to place their 2008 EEO public file reports in their public files and post them on their Web sites: Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, the Pacific Islands, Puerto Rico, the Virgin Islands and Washington. LPTV stations originating programming in these locations, which are not required to have public files, must post these reports on their Web sites and keep them in their station records.