Broadcast Services; Children's Television

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

[email protected].

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 [email protected].

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

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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

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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.

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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.

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[FR Doc. 96-21798 Filed 8-26-96; 8:45 am]

BILLING CODE 6712-01-P