The Federal Communication Commission (“FCC” or the “Commission”) released the much-discussed changes in its rules relating to children’s television programming on July 12, 2019 in a Report and Order and Further Notice of Proposed Rule Making, which include a reduction in the frequency of filing Children’s Television reports and the information required in those reports, more flexibility with respect to program length and pre-emptions, elimination of the additional minimum hours requirement for multiple digital streams, and elimination of the E/I display requirement for noncommercial TV stations.

Federal Register publication is still required for the new rules to become effective,  but adoption of some of the most practical changes, which are those relating to reduced paperwork burdens, nonetheless took one necessary step toward effectiveness.  Any changes in the required collection of paperwork by government agencies from citizens are subject to the requirements of the Paperwork Reduction Act – even in such rare instances as this one of actual paperwork reduction – and are subject to review and approval by the Office of Management and Budget (OMB).  On August 7, 2019, a notice of such review and opportunity to comment on the OMB proceedings by October 7, 2019, was published in the Federal Register.

While much has been said from many perspectives about the changes in the children’s programming rules, less has been said about the Report and Order’s overwhelmingly practical focus.  Among the most important of the changes for broadcasters is the change from quarterly children’s programming reports to annual reports, which will be due on January 30 each year.  Since the initial implementation of the Children’s Television Act of 1990, broadcasters have been required to prepare quarterly reports to document how they had served the needs of children with their programming.  These reports have taken a few different forms during the past roughly 28 years, but settled first on Form 398, then Form 2100 Schedule 398, which requires the listing of all educational and informational (E/I) programming to meet the definition of core programming, both aired in the past quarter and planned to be aired in the upcoming quarter.  Broadcasters also could list E/I programming that had been aired but that did not qualify as core programming, but it was unclear what benefit such listings would have.

Now, instead of filing the same canned information four times a year, sometimes with changes made in the third quarter due to the new broadcast season, broadcasters will need to file only one such report each year, and they will have 30 rather than 10 days to prepare it.

Perhaps even more importantly, the requirement that the reports include information describing the educational and informational purpose of each listed program has been eliminated.  In making this change, the Commission recognized that these descriptions neither reflected any serious thought by the station about how the program met the needs of children nor provided any significant level of information about the program’s educational benefits for children.  Rather, they are most often rote statements put together by the program provider to sound good, and this stock description is simply repeated from quarter to quarter by all stations carrying the program.

Further streamlining the reporting form, the Commission also eliminated the requirement that stations provide information about programming which it plans to air in the upcoming quarter.  The Commission found that this information is readily available from other sources, and there typically is very little change in programming over the course of a year.

Additionally, in an action which removes a hopelessly vague rule from the Commission’s books, the requirement that broadcasters publicize the existence and location of the children’s television programming reports has been eliminated.  This rule never provided any direction to broadcasters as to what methods should be used to publicize the reports, how often these efforts needed to be made, or what age group they should be designed to reach.  Over the years, with few interpretations of the rule, it became clear that one publicity effort a year was probably too little, while one a day was probably too much, and that there were differences of opinion as to whether on-air announcements were absolutely required and whether they should be aired at night when parents might be watching or during children’s programming.  Now, there are no more worries on this front.

When the requirement to file children’s programming reports was first adopted, the thought was that parents could theoretically use the children’s programming reports as a method of evaluating and selecting educational and informational programming for their children to watch.  Of course, two of the main problems have been that parents are completely unaware of the reports, regardless of stations’ publicity efforts, and they have preferred to use other sources to find the information, particularly prior to the advent of the online public file.  Plus, prior versions of the form made it possible to file only information about past programming.  Obviously, a report of programming that a child had missed was of limited value to parents.  After taking a hard look, the Commission finally accepted the fact that there is no evidence that parents have ever used the children’s TV programming reports to guide their children’s TV viewing, nor that members of the public have regularly used the reports to assess a television station’s performance.  Such a conclusion comes only as a welcome relief to a parent who has mentioned children’s TV reports to fellow parents at school events, only to be met with blank stares.

Other changes which fall into the category of finally recognizing reality are the expansion of the hours used in the definition of core programming and of the consideration of either short-form or non-regularly scheduled programming as core programming.

Previously, a children’s E/I program had to air between the hours of 7:00 a.m. and 10:00 p.m. in order to meet the definition of core programming.  Now, it may air as early as 6:00 a.m. and still count as core programming.  The Commission had indicated that this change reflects changing viewing patterns, but it seems more like a recognition of longstanding reality.  Most older parents, if they are honest, will admit that their small children did sometimes wake up before 7:00 a.m. and head for the TV, and that their older children might have sometimes watched early TV before heading off to school.

Another change recognizes that children may benefit from many types of E/I programming, including both educational specials, which generally would not air weekly, and shorter form programming, including interstitials, that might provide bite-size bits of knowledge suited to children’s shorter attention spans.  While the Commission still believes that there are significant benefits in regularly scheduled programming that is at least 30 minutes long, it has effectively reduced the mandatory amount of such programming to an average of 26 hours per quarter or two hours a week.  The additional time needed to get back to the overall requirement of 156 hours per year may be made up either with at least 52 hours annually of programs that are at least 30 minutes long but not regularly scheduled, or a combination of 52 hours annually of such full-length but not regularly scheduled programs and short-form programming.  The total amount of E/I programming required on a station’s primary programming stream to obtain a routine license renewal remains unchanged, but there is a good deal more flexibility in what types of programming count.

Perhaps an even more significant change for broadcasters is that stations will no longer be required to air an additional three hours per week of core programming for each of its multicast streams.  As a result, stations that want to air specialty programming on a multicast stream, such as a weather subchannel, will not be required to insert E/I programs for children for three hours per week.  The Commission acknowledged that this change will result in a reduction in the overall amount of broadcast E/I programming, but noted that multicast streams are less watched than the primary programming stream and that children’s programming is widely available from a wealth of sources today.  Perhaps, the Commission also recognized that as a practical matter, most E/I programming on commercial stations is directed to children ages 13 -16, and most of that fits more into the pro-social category rather than the strictly educational/instructional category of programming.  It making a cost-benefit analysis, it is much easier to find that costs outweigh benefits when the programming in question is yet another teen-aged soap opera.

The Commission did not completely discount the value of multicast channels, however.  Rather, it added further flexibility for broadcasters by allowing them to move up to one hour per week of regularly scheduled, weekly programming from their main channel quota to a multicast channel.  Any programming that is not regularly scheduled or is shorter than 30 minutes in length, however, must be aired on the primary programming stream for it to count toward meeting the required amount of E/I programming.

In a further triumph of improved clarity over imprecision, the Commission also changed is policies with regard to pre-emptions and eliminated the “second home” policy.  While after various prior reconsiderations and repeals of previous pre-emption policies, it was unclear where the Commission had landed, it now has clearly stated that if a station finds that it must pre-empt a regularly scheduled  E/I program on its primary stream, it may reschedule that program on its primary stream to any time slot within core hours which is within seven days either before or after the originally scheduled time, provided on-air notification of the rescheduled time is given in the regularly scheduled time slot.  The “second home” policy, which allowed networks, prior to the start of a season, to pick out alternate time slots for different programs in case of pre-emption and get advance approval of the Commission, has been eliminated.  This change will eliminate both work for the Commission and confusion for network affiliates and non-affiliates.

Finally, while the Commission is still hopeful that pre-emptions will be less frequent with the additional flexibility provided, it also established types of reasons for pre-emption that do not require a particular episode of an E/I programming to be rescheduled in order to be counted.  Now, not only will breaking news give stations a free pass for a pre-emption, but other non-regularly scheduled, locally produced, live programming will do the same thing.  Thus, non-breaking live news, live coverage of a local parade, or live coverage of a local sports team’s championship game which pre-empts an E/I program will not trigger any requirement that that episode is rescheduled.

The Commission also made other changes to reduce broadcasters’ burdens, such as to reduce the number of times per year at which a broadcaster must certify compliance with the commercial limits in children’s programming to one and to eliminate the requirement that noncommercial educational stations air the arguably redundant E/I bug during its children’s core programming.  All in all, the overall goals of the recent, and not yet effective, changes appear to reduce excess paperwork and simplify broadcast stations’ compliance with the rules applicable to children’s TV programming as a practical matter.