**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | MM Docket No. 00-44          |
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| Extension of the Filing          | ) |                              |
| Requirement                      | * |                              |
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| For Children's Television        |   |                              |
| Programming                      | * |                              |
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| Reports (FCC Form 398)           | ) |                              |
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**REPORT AND ORDER AND FURTHER NOTICE OF PROPOSED RULE MAKING**

**Adopted:** September 14, 2000 **Released:** October 5, 2000

Comment Date: December 18, 2000

Reply Comment Date: January 17, 2001

By the Commission: Chairman Kennard issuing a statement; Commissioner
Furchtgott-Roth dissenting and issuing a statement; Commissioner Powell
issuing a statement; Commissioner Tristani concurring in part,
dissenting in part, and issuing a statement.

#  introduction

1.  In this *Report and Order* we make a number of changes to the
    children's educational television reporting requirements of
    commercial broadcast television licensees. First, we extend
    indefinitely the requirement that commercial broadcast television
    licensees file with the Commission their quarterly Children's
    Television Programming Reports (FCC Form 398). The Commission's
    rules currently state that such reports shall be completed quarterly
    and filed on an annual basis for an experimental period of three
    years, from January 1998 through January 2000. These reports are
    required to be filed electronically. Second, we require broadcasters
    in the future to file these reports on a quarterly basis, at the
    time they are prepared, rather than annually. Finally, we also
    announce herein a number of revisions to be made to FCC Form 398 to
    make the information contained in the form clearer and more useful
    to the public and the FCC. The actions we take herein will assist
    the Commission in continuing to enforce the Children's Television
    Act of 1990 ("CTA") and our rules implementing the CTA by
    facilitating monitoring by the FCC and the public of the amount and
    quality of educational television programming for children and
    industry compliance with the Commission's children's educational
    programming requirements. We also adopt a *Further Notice of
    Proposed Rulemaking* to seek comment on whether broadcasters should
    be required to provide their completed Children's Television
    Programming Reports at their own websites.

    **II. BACKGROUND**

2.  Data indicate that children spend, on average, almost three hours a
    day watching television.[^1] In view of the significant impact this
    medium has on children, Congress has concluded that television
    should be contributing to children's development. 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."[^2] In enacting the CTA,
    Congress found that, while television can benefit society by helping
    to educate and inform children, there are significant market
    disincentives for commercial broadcasters to air children's
    educational and informational programming.[^3] The objective of
    Congress in enacting the CTA was to increase the amount of
    educational and informational programming available on
    television.[^4] The CTA places on every licensee an obligation to
    provide such programming, including programming specifically
    designed to educate and inform children, and requires the FCC to
    enforce that obligation.

3.  In August 1996, the Commission adopted its current educational
    programming rules to strengthen its enforcement of the CTA.[^5] The
    Commission's rules include several measures to increase the
    availability of programming "specifically designed" to serve
    children's educational needs (otherwise known as "core" programming)
    and to facilitate public access to information about such
    programming. These measures include a requirement the licensees
    identify core programming at the time it is aired and in information
    provided to publishers of television guides.[^6] Licensees are also
    required to designate a children's liaison at the station
    responsible for collecting comments on the station's compliance with
    the CTA. Furthermore, the rules establish a definition of "core"
    programming as well as a three-hour-per- week processing guideline
    pursuant to which broadcasters airing at least three hours per week
    of programming that meets the definition of "core" will receive
    staff-level approval of the CTA portion of their renewal
    applications.[^7]

4.  One of the most important public information measures adopted by the
    Commission in 1996 was the requirement that licensees complete a
    Children's Television Programming Report, *FCC Form 398*, each
    calendar quarter and place the report in the station's public
    inspection file.[^8] Broadcasters are required to separate the
    children's programming reports from other materials they maintain in
    their public files.[^9] The Commission required that these quarterly
    reports be filed jointly with the Commission on an annual basis for
    an experimental period of three years.[^10] Among other things,
    these reports identify the educational and informational programs
    aired by the licensee over the previous quarter and the days and
    times these programs were regularly scheduled, the age of the target
    audience for each program, and the average number of hours per week
    of core programming broadcast over the past quarter. Licensees must
    include in the reports an explanation of how each core program meets
    the definition of "core" programming adopted by the Commission.
    Stations must also identify in their reports the core programs the
    station plans to air during the next calendar quarter. The
    Commission makes the reports available at its website.

5.  The public information initiatives, including the Children's
    Television Programming Reports, are an integral part of the
    children's programming rules. These measures are designed to ensure
    that the public, and especially parents, has access to information
    regarding the educational programming being aired by broadcasters so
    that parents and others can help achieve the goal of the CTA to
    increase the amount of educational programming available on
    television. Facilitating public access to the information contained
    in the Children's Television Programming Reports helps achieve the
    goals of the CTA in a number of ways. Parents who have access to
    information about educational programming, such as the titles of
    programs, the times they are regularly scheduled to air, and the age
    for which the programs are intended, can select such programming for
    their children to watch, thereby increasing the audience for such
    programs and the incentive of broadcasters to air, and producers to
    supply, more such programs. The information contained in the reports
    can also be used by parents, educators, and others interested in
    educational programming to monitor a station's performance in
    complying with the CTA and the Commission's rules. In this way, the
    public can play an active role in helping to enforce children's
    programming requirements. Finally, requiring broadcasters to
    identify programming they rely upon to meet their obligation to air
    educational programming makes broadcasters more accountable to the
    public. Improving broadcaster accountability minimizes the need for
    government involvement to enforce the CTA and helps to ensure that
    broadcasters, with input from the public, rather than the Commission
    determine which television programs serve children's educational
    needs.

6.  In the *Children's Programming Report and Order*, the Commission
    also required that a children's program be "regularly scheduled" to
    be counted as core programming for purposes of meeting the
    three-hour-per-week processing guideline, i.e., \-- a core
    children's program must "be scheduled to air at least once a week"
    and "must air on a regular basis."[^11] The Commission stated that
    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. The Commission
    noted that 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. The Commission
    stated that it would 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.
    Subsequent to the adoption of the *Children's Programming Report and
    Order*, and in response to requests from the ABC, CBS, and NBC
    networks that local stations be given flexibility to reschedule
    episodes of core programs that are preempted by live network sports
    events without adversely affecting the program's status as
    "regularly scheduled," the Mass Media Bureau has allowed the
    networks limited flexibility in preempting core children's
    programming.[^12] Specifically, within certain limitations, the
    Bureau advised that preempted core programs could count toward a
    station's core programming obligation if the program were
    rescheduled. The Bureau also indicated that it would revisit this
    limited flexibility regarding preempted core programming based on
    the level of preempted programs, the rescheduling and broadcast of
    the preempted programs, and the impact of promotions and other steps
    taken by the stations to make children's educational programming a
    success.

7.  In April 2000, the Commission adopted a *Notice of Proposed Rule
    Making*[^13] proposing to amend section 73.3526(e)(11)(iii) of the
    Commission's rules to extend indefinitely the requirement that
    broadcasters file their Children's Television Programming Reports
    with the Commission. The *Notice* also sought comment on whether
    reports should be filed with the Commission quarterly, at the time
    they are prepared, rather than annually. Finally, the *Notice* asked
    commenters to address whether any changes should be made to *FCC
    Form 398* to make the reports more informative and easier to
    prepare. For example, the *Notice* asked whether there were
    revisions to the form that would make it easier for the reader to
    determine the number of times core programs are preempted and to
    obtain information about the rescheduling of any preempted episodes.
    [^14]

    **III. ISSUE ANALYSIS**

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A.  **Filing Requirement Extension**.

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8.  *Background.* As noted above, we proposed in the *Notice* to
    continue indefinitely the requirement that licensees file their
    quarterly Children's Television Programming Reports with the
    Commission. No comments were filed objecting to this proposal.[^15]

9.  *Discussion*. We will extend indefinitely the requirement that
    broadcasters file *FCC Form 398* with the Commission. As we stated
    in the *Notice*, the requirement that reports be filed with the
    Commission is an important part of the emphasis placed in our
    children's programming rules on improving the flow of information to
    the public about educational programming. Filing permits the
    Commission to place the reports on our website, making this
    information easily accessible in one central location. Members of
    the public can view reports from a number of stations easily without
    having to contact each station individually. As we also stated in
    the *Notice*, continuation of the filing requirement is also
    important to ensure that the Commission itself has access to
    information regarding licensee compliance with the children's
    programming rules. Without the annual filing requirement, licensees
    would be required to report to the Commission on their station's
    children's educational programming only once every eight years, at
    the end of the license term. Extension of the license term to eight
    years necessarily places a stronger emphasis on facilitating public
    monitoring of licensee compliance with the rules, to assist the FCC
    in its enforcement role. The Center for Media Education ("CME"),
    Peggy Charren, the Annenberg Public Policy Center of the University
    of Pennsylvania, and thirteen other academics and organizations
    interested in children's programming issues (collectively referred
    to herein as "*CME et al*.") filed joint comments strongly
    supporting extension of the Children's Television Programming Report
    filing requirement.[^16] These commenters agree that the requirement
    that broadcasters file their quarterly reports with the Commission
    is one of the "principal ingredients" of the children's television
    public information initiatives and is necessary for effective
    monitoring and enforcement of the CTA.[^17] The National Association
    of Broadcasters ("NAB"), the only other commenter to file in
    response to the *Notice*, stated that it does not object to the
    continuation of an annual filing requirement.[^18]

10. We agree with CME *et al*. that extending the filing requirement
    indefinitely is important to permit the Commission to continue to
    inform the public about the availability of educational programming
    and to ensure that broadcasters are meeting the obligations set
    forth in the CTA and our rules. As we stated in the *Notice*,
    evidence also indicates that a variety of organizations, including
    CME, the National Institute on Media and the Family, and the
    Annenberg Public Policy Center at the University of Pennsylvania,
    use the reports to track national trends in children's television
    programming and to develop tools to inform parents and others about
    children's programming.[^19] In addition to these groups, CME *et
    al.* notes that other organizations use or plan to use the reports,
    including the American Center for Children and the Media, the Center
    for Research on the Effects of Television, the Center for
    Educational Priorities, Children Now, the Media Literacy Online
    Project, and Mediascope. CME *et al.* also notes that the reports
    are integral to the academic research undertaken at centers such as
    the Children and Media Project in the Department of Psychology at
    Georgetown University, and the Center for Communication and Social
    Policy at the University of California at Santa Barbara.[^20]

11. The Commission has reviewed all of the reports filed since
    commencement of the FCC filing requirement, and has used the
    information in the reports to evaluate industry practices in
    connection with preemption of children's programming.[^21] In
    addition, the Commission staff is currently preparing an analysis
    based on the data reflected in reports filed over the past three
    years. In adopting the children's programming rules, the Commission
    stated it would monitor the broadcast industry's children's
    educational programming performance for three years based upon the
    Children's Television Programming Reports filed with the Commission,
    and would review the reports at the end of the three-year period and
    take appropriate action as necessary to ensure that stations are
    complying with the rules and guidelines.[^22]

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B.  **Quarterly Filing**

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12. *Background.* We also sought comment in the *Notice* on whether our
    rules should be revised to require that Reports be filed quarterly,
    at the time they are prepared, rather than once a year. We
    tentatively concluded that requiring reports to be filed quarterly
    was unlikely to impose a significant additional burden on licensees,
    especially as reports are required to be filed electronically.

13. *Discussion*. In addition to extending the filing requirement, we
    will require broadcasters to file their Children's Television
    Programming Reports with the Commission on a quarterly basis, at the
    time the reports are prepared, rather than annually. Section
    73.3526(e)(11)(iii) currently requires that the report for each
    calendar quarter be filed in the station's public inspection file by
    the tenth day of the succeeding calendar quarter.[^23] Beginning
    January 10, 2001, we will require that reports for each quarter be
    filed electronically with the Commission by the same date the report
    is due to be placed in the station's public inspection file.

14. We agree with CME *et al.* that quarterly filing with the Commission
    will provide the public and the Commission with more current
    information on the educational and informational programming offered
    by broadcasters to meet their obligation under the CTA and our
    rules. Among other things, the reports include information on the
    core educational and informational programs the licensee plans to
    air during the next calendar quarter. The purpose of requiring
    licensees to report this information is to permit parents, teachers,
    and others to better anticipate and plan for the viewing of
    educational programs by children. Facilitating timely public access
    to the station's schedule of core educational and informational
    programs for the succeeding calendar quarter will permit parents and
    others to use this information more effectively to plan their
    children's television viewing. CME *et al.* suggests that quarterly
    filings will be more helpful to parents, and argues that they will
    also allow researchers to report more timely on programming trends
    for the annual television season, which could influence programming
    for the subsequent television season. [^24]

15. NAB opposes a quarterly filing requirement, arguing that licensees
    appear to be complying with the children's television programming
    rules and that there is no demonstrated need for increased reporting
    requirements.[^25] While we agree that the reports filed since our
    revised children's television programming rules became effective
    indicate that virtually all licensees claim to be airing at least 3
    hours per week of programming that meets our definition of
    programming "specifically designed" to meet the educational and
    informational needs of children, we believe that improving public
    access to the information contained in the reports will assist
    parents and others interested in selecting programs for children to
    watch. As noted above, assisting parents in choosing educational
    programming for their children may possibly increase the commercial
    success of such programming and thereby prompt broadcasters to
    increase the amount of educational and informational broadcast
    television programming available to children -- one of the
    underlying goals of our children's programming public information
    initiatives. More timely information will also assist those
    interested in monitoring station performance under our rules, thus
    assisting the Commission in its enforcement role.

16. As reports must now be prepared and placed in the station's public
    inspection file on a quarterly basis, we continue to believe that
    requiring these quarterly reports to be transmitted electronically
    to the Commission on a quarterly basis, rather than once a year,
    will not impose a significant additional burden on licensees. In
    this regard, we note that more than seventy percent of licensees
    already voluntarily file their reports quarterly. Reports are
    currently required to be filed electronically with the Commission,
    and the Commission makes an electronic version of a blank FCC Form
    398 available on its website to be used by licensees to prepare
    their quarterly submissions. As CME *et al.* suggests, transmitting
    the reports to the Commission quarterly rather than annually should
    require very little additional time and effort on the part of
    licensees. [^26] In view of the benefits of quarterly filing with
    the FCC and the minimal additional burden this will impose on
    licensees, we believe that quarterly filing is warranted.

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C.  **Changes to FCC Form 398**

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17. *Background.* Finally, we also requested comment in the *Notice* on
    possible changes to FCC Form 398 that would make the Children's
    Television Programming Reports more informative or easier to
    prepare. Specifically, we asked whether there are revisions to the
    form that would make it easier for the reader to determine the
    number of times core programs are preempted and to obtain
    information about the rescheduling of any preempted episodes.[^27]

18. CME *et al*. suggested that FCC Form 398 be revised to provide more
    information regarding (1) why a broadcaster has preempted a
    children's educational program, (2) which program guide publishers
    are not printing the programming information provided by local
    broadcasters, and (3) what efforts broadcasters are making to
    publicize the existence and location of their Reports (question
    8).[^28] CME et al. also suggests that broadcasters be required to
    post their reports on their website, that the FCC's own children's
    television webpage be made more user-friendly, and that Form 398 be
    revised to reflect the station's license renewal date.[^29]

19. *Preemption Report.* The Commission required that programming must
    be "regularly scheduled" to qualify under the three-hour guideline.
    This requirement was based on the fact that programming that is
    aired on a regular basis is more easily anticipated and located by
    viewers, and therefore more likely to be seen by its intended
    audience. Although acknowledging that preemption might occur, the
    Commission expected that preemption of core programming would be
    rare. The Mass Media Bureau staff has recently reviewed a random
    sample of the Children's Television Programming Reports, and
    determined that the average preemption rate by stations affiliated
    with the largest networks during the past two years is nearly 10%,
    and has been as high as 25% during a quarter when a large number of
    sports programming commitments. Given this level of preemption, and
    the difficulty that some members of the public and the Commission
    staff have experienced in interpreting the information set forth in
    Form 398, we wish to gather more information about the circumstances
    of preemption to ensure that our preemption policy does not thwart
    the CTA.

20. To make the information in the Children's Television Programming
    Reports clearer and to improve public access to information about
    educational and informational programming and licensee compliance
    with the CTA and our rules, we will make a few revisions to FCC
    Form 398. Currently, question 5 of FCC Form 398 requires
    broadcasters to list, among other information, the title of each
    core educational and informational program aired by the station
    during the past calendar quarter, the days and times the program is
    regularly scheduled, the total times the program aired, the number
    of preemptions and, if the program was preempted and rescheduled,
    the date and time the program was aired. From the way this question
    is currently worded and formatted, it is difficult to determine from
    the responses to this question exactly how many times each core
    program was preempted during the calendar quarter, whether the
    preempted episode was eventually aired and, if so, when the program
    was aired.[^30] In addition, as CME suggests, it would be useful to
    know the reason for each preemption. Although we encourage stations
    to reschedule core programming preempted for breaking news, even if
    programs preempted for breaking news are not rescheduled they can
    count toward the three-hour-per-week core programming guideline. We
    cannot currently determine whether a program was preempted for
    breaking news or another reason, and thus whether the program must
    have been rescheduled and aired in order to count toward the
    three-hour guideline. Finally, we would also like to know if
    licensees made efforts to notify viewers and publishers of program
    guides of the date and time their rescheduled programs would
    air.[^31] To address these issues, we will revise question 5 of FCC
    Form 398 to gather more information about preempted core programs
    during the quarter and add as an addendum to the form a "Preemption
    Report" to be completed for each preempted core program during the
    quarter. The Preemption Report will request information on the date
    of each preemption, if the program was rescheduled the date and time
    the program was aired, and the reason for the preemption (*e.g*., we
    will ask the licensee to pick a reason from among several options,
    including breaking news). We will also ask licensees to indicate
    whether promotional efforts were made to notify the public of the
    time and date the rescheduled program would air. This data will
    provide more complete information regarding the level of preemption
    of core programs and station practices in rescheduling such
    programs. This information will in turn allow the FCC and interested
    members of the public to continue to monitor the impact of
    preemptions generally on the availability of core programs.

21. *Program Guide Information.* We will also revise question 4 of FCC
    Form 398 in order to collect more extensive data about the
    information furnished by licensees to publishers of program guides
    regarding core programming aired by the station. Section 73.673(b)
    of our rules requires commercial television station licensees to
    provide information identifying core programming, and the age group
    for which the program is intended, to publishers of program guides.
    In adopting this requirement, we noted that program guides are an
    effective means of providing parents with advance notice of
    scheduling of educational programs, and that such information can
    assist both parents in finding suitable programs for their children
    and others who wish to monitor station performance in complying with
    the CTA. While we noted that we cannot require guides to print this
    information, we stated that the information is more likely to be
    included in program listings if broadcasters routinely provide
    it.[^32]

22. Question 4 as currently written asks whether licensees have provided
    information to publishers of program guides as required by our
    rules, with the licensee indicating "yes" or "no." We will revise
    this question to ask licensees to identify by name the program
    guides to which information was provided, but decline to require
    broadcasters to indicate in their reports whether the program guides
    to which the information was provided actually published this
    information. Our purpose in making this change is twofold. First, we
    agree with CME *et al*. that requiring broadcasters to list the
    publishers to whom information was submitted will provide parents,
    the public and the Commission useful data by which to judge a
    broadcasters good-faith efforts to comply with our goal of
    facilitating public access to information about educational
    programming. Second, and perhaps more important, requiring
    broadcasters to provide this information will help in identifying
    those publishers that decline to include information about
    educational programming in their program guides. Studies examining
    the impact of the children's programming rules have concluded that
    many parents still do not know which programs carry educational
    labels, and that the widespread failure of program guides to include
    information identifying core educational programming contributes to
    this problem.[^33] It does not appear that any newspapers or program
    guides routinely include in their television listings the symbols
    identifying core programs. Requiring stations to identify publishers
    to which information about core programs is being provided will
    allow parents and others to encourage other program guide publishers
    to include this information in their TV listings. As broadcasters
    are already required by our rules to provide information to program
    guide publishers, it should not be difficult for broadcasters simply
    to identify those publishers on their quarterly programming reports.
    We disagree with CME *et al*., however, that broadcasters should be
    required to indicate in their reports whether the program guides to
    which information was provided actually published this information.
    As NAB argues, tracking what was actually published could impose a
    significant burden on broadcasters.[^34] Once publishers that have
    been provided with information are identified by licensees in their
    reports, interested members of the public can monitor those
    publications and urge them to include educational children's program
    identifiers.

23. *License Renewal Date*. Finally, as CME *et al*. suggests, we will
    also add a question to FCC Form 398 requiring the station to
    indicate its license renewal date. This information is readily
    available to broadcasters and easy to provide, and will be useful to
    members of the public interested in monitoring station compliance.

24. *Revised Form 398*. We will amend Section 73.3526 of the
    Commission's rules as set forth in Appendix A and FCC Form 398,
    Children's Television Programming Report, to reflect the changes
    discussed above. We direct the Mass Media Bureau to revise FCC Form
    398 accordingly and submit it to OMB for approval.

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IV. **FURTHER NOTICE OF PROPOSED RULEMAKING**

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25. *Background*. In the *Notice*, we encouraged broadcasters to make
    the Children's Television Programming Reports available on their own
    websites.[^35] CME *et al*. proposes that broadcasters be required
    to post their reports on their internet websites. NAB, however,
    argues that a requirement that licensees post FCC Form 398 on their
    own websites would be duplicative.[^36]

26. *Discussion.* We tentatively conclude that if a broadcaster
    maintains a website, it must post its quarterly report on that site
    at the same time that it places it in the station's public file.
    Although the Children's Television Programming Reports are available
    in a central location on the FCC's website, we believe that members
    of the public may look first to their local broadcast station,
    rather than the Commission, for information about the programming of
    the station. Our inclination is to allow stations, at their option,
    either to post the quarterly reports on the station\'s own internet
    website, or to create a link on the station\'s website directly to
    either the FCC\'s children\'s television webpage or to the
    station\'s most recent quarterly report on the FCC\'s children\'s
    television website. We note that NAB argues that it may cost
    stations more to provide the required form at their websites.
    Allowing stations simply to create a link to the FCC\'s website
    provides a less costly alternative. This option also responds to
    NAB\'s concern about any unnecessary duplication of effort
    associated with making the reports available both on the FCC\'s and
    the station\'s websites. Broadcasters must currently retain a paper
    copy of the report in their station public inspection file until
    final action has been taken on the station\'s next renewal of
    license.[^37] We seek comment on whether broadcasters that elect to
    maintain the reports on their own station websites should be
    required to maintain these reports on the website until final action
    has been taken on the station\'s next license renewal application. .

27. Because the Commission's own website provides a central location
    where the public can access reports from all stations in their
    community and across the country, we want to ensure that the
    information on our website is easily accessible by the public. In
    response to a request from CME *et al*., the Commission staff has
    created a link directly from its internet homepage to its children's
    television webpage. We note that interested organizations can create
    links directly from their own websites to our children's television
    website if they choose.

    **V. CONCLUSION**

28. In this *Report and Order*, we revise our rules to continue
    indefinitely the requirement that commercial broadcast television
    licensees file their quarterly Children's Television Programming
    Reports with the Commission, and to require that these reports be
    filed quarterly rather than annually. We also make a number of
    revisions to FCC Form 398 to make the information in the reports
    clearer and more useful to the Commission and the public. These
    measures are designed to permit us to continue to enforce the CTA
    and our rules implementing that statute, and to improve public
    access to information about licensee compliance with their
    obligations to provide educational and informational programming for
    children.

    **ADMINISTRATIVE MATTERS**

29. *Comments and Reply Comments*. Pursuant to Sections 1.415 and 1.419
    of the Commission\'s rules, 47 C.F.R. §§ 1.415, 1.419, interested
    parties may file comments on or before December 18, 2000 and reply
    comments on or before January 17, 2001. Comments may be filed using
    the Commission\'s Electronic Filing System (ECFS) or by filing paper
    copies. *See* Electronic Filing of Documents in Rulemaking
    Proceedings, 63 Fed. Reg. 24,121 (1998).

30. Comments filed through the ECFS can be sent as an electronic file
    via the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>.
    Generally, only one copy of an electronic submission must be filed.
    If multiple docket or rulemaking numbers appear in the caption of
    this proceeding, however, commenters must transmit one electronic
    copy of the comments to each docket or rulemaking number referenced
    in the caption. In completing the transmittal screen, commenters
    should include their full name, postal service mailing address, and
    the applicable docket or rulemaking number. Parties may also submit
    an electronic comment by Internet e-mail. To get filing instructions
    for e-mail comments, commenters should send an e-mail to
    ecfs@fcc.gov, and should include the following words in the body of
    the message, \"get form, \<your e-mail address.\" A sample form and
    directions will be sent in reply.

31. Parties who choose to file by paper must file an original and four
    copies of each filing. If more than one docket or rulemaking number
    appear in the caption of this proceeding, commenters must submit two
    additional copies for each additional docket or rulemaking number.
    All filings must be sent to the Commission\'s Secretary, Magalie
    Roman Salas, Office of the Secretary, Federal Communications
    Commission, 445 Twelfth Street, S.W.; TW-A325, Washington, D.C.
    20554.

32. Parties who choose to file by paper should also submit their
    comments on diskette. These diskettes should be submitted to: Wanda
    Hardy, 445 Twelfth Street, S.W.; 2-C221, Washington, D.C. 20554.
    Such a submission should be on a 3.5 inch diskette formatted in an
    IBM compatible format using WordPerfect 5.1 for Windows or
    compatible software. the diskette should be accompanied by a cover
    letter and should be submitted in \"read only\" mode. The diskette
    should be clearly labeled with the commenter\'s name, proceeding
    (including the docket number (MM Docket No. 00-44), type of pleading
    (comment or reply comment), date of submission, and the name of the
    electronic file on the diskette. The label should also include the
    following phrase \"Disk Copy - Not an Original.\" Each diskette
    should contain only one party\'s pleadings, preferably in a single
    electronic file. In addition, commenters must send diskette copies
    to the Commission\'s copy contractor, International Transcription
    Service, Inc., 445 Twelfth Street, S.W.; CY-B402, Washington, D.C.
    20554.

33. *Ex Parte Rules*. This is a permit-but-disclose notice and comment
    rulemaking proceeding. Ex parte presentations are permitted except
    during the Sunshine Agenda period, provided they are disclosed as
    provided in the Commission\'s Rules. See generally 47 C.F.R.
    Sections 1.1202, 1.1203, and 1.1206(a).

34. *Initial Regulatory Flexibility Analysis*. With respect to the
    *Further Notice of Proposed Rulemaking*, an Initial Regulatory
    Flexibility Analysis (\"IRFA\") is contained in Appendix C. As
    required by Section 603 of the Regulatory Flexibility Act, the
    Commission has prepared an IRFA of the expected impact on small
    entities of the proposals contained in this *Further Notice*.
    Written public comments are requested on the IRFA. In order to
    fulfill the mandate of the Contract With America Advancement Act of
    1996 regarding the Final Regulatory Flexibility Analysis, we ask a
    number of questions in our IRFA regarding the prevalence of small
    business in the television broadcasting industry. Comments on the
    IRFA must be filed in accordance with the same filing deadlines as
    comments on the *Notice*, but they must have a distinct heading
    designating them as responses to the IRFA. The Commission's Consumer
    Information Bureau shall send a copy of this *Further* *Notice*,
    including the IRFA, to the Chief Counsel for Advocacy of the Small
    Business Administration in accordance with Section 603(a) of the
    Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5
    U.S.C. § 601 et seq. (1981), as amended.

35. *Initial Paperwork Reduction Act Analysis.* This *Further Notice of
    Proposed Rulemaking* may contain either proposed or modified
    information collections. As part of our continuing effort to reduce
    paperwork burdens, we invite the general public to take this
    opportunity to comment on the information collections contained in
    this *Further* *Notice*, as required by the Paperwork Reduction Act
    of 1996. Public and agency comments are due at the same time as
    other comments on the *Further* *Notice.* Comments should
    address: (a) whether the proposed collection of information is
    necessary for the proper performance of the functions of the
    Commission, including whether the information shall have practical
    utility; (b) ways to enhance the quality, utility, and clarity of
    the information collected; and (c) 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. In addition to filing comments with the Secretary, a
    copy of any comments on the information collections contained herein
    should be submitted to Judy Boley, Federal Communications
    Commission, 445 Twelfth Street, S.W., Room C-1804, Washington, D.C.
    20554, or via the Internet to <jboley@fcc.gov> and to Edward
    Springer, OMB Desk Officer, 10236 NEOB, 725 17^th^ Street, N.W.,
    Washington, D.C. 20503 or via the Internet to
    [edward.springer@omb.eop.gov](mailto:edward.prunger@omb.eop.gov).

36. *Paperwork Reduction Act Analysis*. This *Report and Order* has been
    analyzed with respect to the Paperwork Reduction Act of 1995, and
    found to impose new or modified reporting and recordkeeping
    requirements or burdens on the public. Implementation of these new
    or modified reporting and recordkeeping requirements will be subject
    to approval by the Office of Management and Budget as prescribed by
    the Act.

37. *Final Regulatory Flexibility Analysis*. Pursuant to the Regulatory
    Flexibility Act of 1980, as amended, *see* 5 U.S.C. § 604, the
    Commission's Final Regulatory Flexibility Analysis for this *Report
    and Order* is attached as Appendix B.

38. *Additional Information.* For additional information on this
    proceeding, please contact Kim Matthews, Policy and Rules Division,
    Mass Media Bureau, (202) 418-2130.

    **ORDERING CLAUSES**

39. Accordingly, IT IS ORDERED that, pursuant to authority contained in
    sections 4(i), 303, and 308 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 154(i ), 303, and 308, and the Children's
    Television Act of 1990, 47 U.S.C. §§ 303a, 303b, Part 73 of the
    Commission's rules, 47 C.F.R. Part 73, IS AMENDED as set forth in
    Appendix A below.

40. IT IS FURTHER ORDERED that, pursuant to the Congressional Review
    Act, 5 U.S.C. § 801, *et seq*., the amendments set forth in Appendix
    A SHALL BE EFFECTIVE January 1, 2001. Children's Television
    Programming Reports for the fourth quarter of 2000, due to be filed
    with the Commission by January 10, 2001, should be completed using
    the current FCC Form 398. The Commission will revise its electronic
    version of FCC Form 398 to reflect the changes adopted herein.
    Reports for the first quarter of 2001, due to be filed by April 10,
    2001, should be completed using the revised form.

41. IT IS FURTHER ORDERED that the Commission's Consumer Information
    Bureau, Reference Information Center, shall send a copy of this
    *Report and Order and Further Notice of Proposed Rule Making*,
    including the Initial and Final Regulatory Flexibility Act Analyses,
    to the Chief Counsel for the Small Business Administration.

42. IT IS FURTHER ORDERED that, pursuant to 47 U.S.C. § 155(c), the
    Chief, Mass Media Bureau, is GRANTED DELEGATED AUTHORITY to
    implement the changes to Form 398 adopted in this *Report and
    Order*.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas

    Secretary

    **APPENDIX A**

    **Rules**

    Part 73 of Title 47 of the U.S. Code of Federal Regulations is
    amended to read as follows:

    PART 73 RADIO BROADCAST SERVICES

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1.  The authority citation for Part 73 continues to read as follows:

    AUTHORITY: 47 U.S.C. 154, 303, 334 and 336.

2.  Section 73.3526 is amended by revising paragraph (e)(11)(iii) to
    read as follows:

    § 73.3526 Local public inspection file of commercial stations.

    \*\*\*

    \(e\) *Contents of the file*. The material to be retained in the
    public inspection file is as follows:

    \*\*\*

(11)(iii) *Children's Television Programming Reports*. 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 placed in the
public inspection file by the tenth day of the succeeding calendar
quarter. By this date, a copy of the Report for each quarter is also to
be filed electronically with the FCC. 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 § 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. The Report
shall also identify the program guide publishers to which information
regarding the licensee's educational and informational programming was
provided as required in § 73.673(b), as well as the station's license
renewal date. These Reports shall be retained in the public inspection
file until final action has been taken on the station's next license
renewal application. Licensees shall publicize in an appropriate manner
the existence and location of these Reports.

**APPENDIX B**

**FINAL REGULATORY FLEXIBILITY ANALYSIS**

As required by the Regulatory Flexibility Act (RFA),[^38] an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated in the *Notice
of Proposed Rule Making* (*Notice*). The Commission sought written
public comment on the proposals in the *Notice*, including comment on
the IRFA. One comment was received in response to the IRFA. This present
Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.[^39]

**Need for, and Objectives of, the Adopted Rules**

The *Report and Order* amends Section 73.3526(e)(11)(iii) of the
Commission\'s rules to continue indefinitely the requirement that
commercial broadcast television licensees file with the Commission, on
an annual basis, their quarterly Children\'s Television Programming
Reports (FCC Form 398). The Commission\'s rules currently state that
such reports shall be filed on an annual basis for an experimental
period of three years, from January 1998 through January 2000.
Continuation of the filing requirement will permit the Commission to
continue to enforce the Children\'s Television Act of 1990 (\"CTA\"),
and its rules implementing the CTA, by monitoring the amount and quality
of educational television programming for children and industry
compliance with the Commission\'s children\'s educational programming
requirements. The *Report and Order* also requires that the reports be
filed with the Commission quarterly, at the time they are prepared,
instead of annually, which will make available to the public more timely
information about the educational and informational programming aired by
the licensee during the preceding calendar quarter and planned to be
aired during the succeeding quarter. Finally, the *Report and Order*
also makes a number of revisions to FCC Form 398 to make the information
in the reports clearer and more useful to the Commission and the public.
Specifically, the *Report and Order* adds a "Preemption Report" to FCC
Form 398 to be completed for each preempted core program during the
quarter requesting information on the date of each preemption, if the
program was rescheduled the date and time the program was aired, and the
reason for the preemption. The revised form also asks whether
promotional efforts were made to notify the public of the time and date
the rescheduled program would air, and requires licensees to identify
the program guide publishers provided information about the licensee's
core educational programming. Finally, licensees must indicate on the
revised form the station's next license renewal date. These measures are
designed to permit us to continue to enforce the CTA and our rules
implementing that statute, and to improve public access to information
about licensee compliance with their obligations to provide educational
and informational programming for children.

**Summary of Significant Issues Raised by Public Comments in Response to
the IRFA**

The SBA, in an *ex parte* letter dated August 31, 2000, asked that we
issue a supplemental IRFA if we choose to implement three proposals made
by CME: posting the reports on the Internet, reporting on the names of
the program guides that a licensee provided children programming
information and whether the information was published, and an
explanation of why children\'s programming was preempted.[^40] As noted,
we are issuing a *Further Notice of Proposed Rulemaking* to address the
use of the Internet to post the reports, and an IRFA is included for
that FNPRM. For the programming guide proposal, our existing rules
already require licensees to report children\'s programming to
publishers of program guides.[^41] We did not adopt the proposal that
licensees monitor whether publishers have published the programming
information. Thus, the only portion of the CME proposal we adopt here is
the minimal requirement that a licensee report to us the names of the
publishers provided the licensee\'s programming information, data that
the licensee already has to comply with 47 C.F.R. § 73.673(b). This is
hardly a burdensome requirement. Finally, we adopt CME\'s proposal that
Form 398 include an explanation why children\'s programming is
preempted. As we note at paragraph 20 of the *Report and Order*, we
believe this addition is necessary and in the public interest. We have
devised a simple, non-burdensome checklist addition to the form. This
does not, as the SBA claims, duplicate any other information on the
form, including question 11, which is an optional catchall explanatory
question.

These modifications to Form 398 are logical outgrowths of the NPRM. We
do not think that it was Congress\' intent in passing the RFA to require
supplemental a IRFA every time a proposed rule is modified as a logical
outgrowth of the original proposal after the issuance of the NPRM
especially when the economic impact of the adopted rule on small
entities is not substantial. Indeed, such an approach would render the
RFA\'s notice requirements more onerous than the notice requirement of
the Administrative Procedure Act. Here the IRFA specifically noted that
the Commission was proposing to continue the existing requirement to
file Children Television Programming Reports and indicated that the NPRM
sought comment on this proposal as well as other issues. *See Notice of
Proposed Rule Making*, 15 FCC Rcd 6326, 6331 Appendix A, ¶g. The
*Notice* also sought comment on possible changes to the form.
Specifically, the Notice stated, "Finally, we ask commenters to address
whether any changes should be made to FCC Form 398 to make the Reports
more informative or easier to prepare. For example, are there revisions
to Form 398 that would make it easier for the reader to determine the
number of times core programs are preempted and to obtain information
about the rescheduling of any preempted episodes?"

We believe that the final rule is clearly a logical outgrowth of that
proposed in the *Notice* and IRFA and that the changes to the
programming reports will not have a significant economic impact on a
substantial number of small licensees. As explained above, neither of
the changes to Form 398 will have a significant economic impact.
Reporting the names of program guides simply requires licensees to
provide information they already have as a result of the requirements of
a pre-existing rule. The check-box reporting of reasons for preempting
children\'s programming is of a minimum burden on licensees. We
therefore certify pursuant to 5 U.S.C. § 605(b) that these two changes
to Form 398 will not have a significant economic impact on a substantial
number of small entities.

**Description and Estimate of the Number of Small Entities to Which the
Proposed Rules Apply**

The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that will be
affected by the rules.[^42] The RFA generally defines the term "small
entity" as having the same meaning as the terms "small business," "small
organization," and "small business concern" under section 3 of the Small
Business Act.[^43] 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
SBA.[^44]

[Small TV Broadcast Stations]{.underline}. The SBA defines small
television broadcasting stations as television broadcasting stations
with \$10.5 million or less in annual receipts.[^45] BIA Research Inc.
reports that 784 out of 1221 commercial television stations (64%) have
annual revenues less than \$10.5 million.[^46] Thus, we estimate that
784 or fewer commercial TV broadcast stations are small businesses, as
defined by the SBA.

**Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements**

The *Report and Order* continues the requirement that commercial
broadcast television stations file with the FCC a copy of their
quarterly Children's Television Programming Reports on FCC Form 398. In
addition, the *Report and Order* requires that these reports be filed on
a quarterly basis, as they are prepared, rather than annually. Finally,
the *Report and Order* makes a number of changes in FCC Form 398 to make
the information in the reports clearer and more useful to the FCC and
the public. Specifically, the *Report and Order* adds a "Preemption
Report" to FCC Form 398 to be completed for each preempted core program
during the quarter requesting information on the date of each
preemption, if the program was rescheduled the date and time the program
was aired, and the reason for the preemption. The revised form also asks
whether promotional efforts were made to notify the public of the time
and date the rescheduled program would air, and requires licensees to
identify the program guide publishers provided information about the
licensee's core educational programming. Finally, licensees must
indicate on the revised form the station's next license renewal date

**Steps Taken to Minimize Significant Impact on Small Entities, and
Significant Alternatives Considered**

The *Report and Order* requires licensees to identify in their
Children's Television Programming Reports the program guide publishers
to whom information regarding the licensee's educational and
informational children's programming was provided. Although commenters
also advocated that licensees be required to state whether this
information was actually published, the *Report and Order* declines to
impose this additional obligation on licensees because we believe that
this might have constituted a significant economic impact without an
adequate resulting benefit.[^47] In addition, although commenters
proposed requiring that licensees be required to identify in their
reports the precise efforts made to publicize the existence and location
of the reports as required by 47 C.F.R. § 73.3526(e)(11)(iii), this
proposal was not adopted in the *Report and Order*.

**Report to Congress**

The Commission will send a copy of the *Report and Order*, including
this FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act, *see* 5 U.S.C. § 801(a)(1)(A). In addition,
the Commission will send a copy of the *Report and Order*, including the
certification and FRFA, to the Chief Counsel for Advocacy of the Small
Business Administration. A copy of the *Report and Order*,
certification, and FRFA (or summaries thereof) will also be published in
the Federal Register. *See* 5 U.S.C. §§ 604(b) and 605(b)

> **APPENDIX C**

**INITIAL REGULATORY FLEXIBILITY ANALYSIS**

As required by the Regulatory Flexibility Act, 5 U.S.C. § 603 (\"RFA\"),
the Commission has prepared an Initial Regulatory Flexibility Analysis
(\"IRFA\") of the expected impact on small entities of the proposals
contained in the attached *Further* *Notice of Proposed Rule Making*.
Written public comments are requested with respect to the IRFA. These
comments must be filed in accordance with the same filing deadlines for
comments on the rest of the *Further* *Notice*, but they must have a
separate and distinct heading, designating the comments as responses to
the IRFA. The Commission shall send a copy of this *Further Notice*,
including the IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration in accordance with the RFA, 5 U.S.C. § 603(a).

a\. [Reasons Why Agency Action is Being Considered]{.underline}. Our
goal in commencing this proceeding is to seek comment on the tentative
conclusion to require commercial television broadcasters that maintain a
website to post their quarterly Children's Television Programming
Reports on that site at the same time that they place the reports in the
station's public inspection file. We also seek comment on whether
broadcasters should be required to maintain the reports on the website
until final action has been taken on the station's next license renewal.

b\. [Need For and Objectives of the Proposed Rule Changes]{.underline}.
Although the Children's Television Programming Reports are available in
a central location on the FCC's website, the FCC believes that members
of the public may look first to their local broadcast station, rather
than the Commission, for information about the programming of the
station. We invite comment on this view and ask commenters to provide
detailed information on any costs or other burdens associated with
requiring those stations that maintain websites to post their quarterly
reports on the sites.

c\. [Legal Basis]{.underline}. Authority for the actions proposed in the
*Further Notice* may be found in Sections 4(i) and 303, 307, and 336(d)
of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303,
307, and 336(d), and in the Children's Television Act of 1990.

d\. [Recording, Recordkeeping, and Other Compliance
Requirements]{.underline}. The *Further Notice* invites comment on the
tentative conclusion to require commercial television broadcasters that
maintain a website to post their quarterly Children's Television
Programming Reports on that site at the same time that they place the
reports in the station's public inspection file. We also seek comment on
whether broadcasters should be required to maintain the reports on the
website until final action has been taken on the station's next license
renewal.

e\. [Federal Rules that Overlap, Duplicate, or Conflict with the
Proposed Rules]{.underline}. The rules under consideration in this
proceeding do not overlap, duplicate, or conflict with any other rules.

f\. [Description and Estimate of the Number of Small Entities to Which
the Rules Would Apply]{.underline}. Under the RFA, small entities may
include small organizations, small businesses, and small governmental
jurisdictions. 5 U.S.C. § 601(6). The RFA, 5 U.S.C. § 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.
§ 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\"). 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 SBA 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.

Small TV Broadcast Stations. The SBA defines small television
broadcasting stations as television broadcasting stations with \$10.5
million or less in annual receipts.[^48] BIA Research Inc. reports that
784 out of 1221 commercial television stations (64%) have annual
revenues of less than \$10.5 million.[^49]

The requirement to prepare quarterly Children's Television Programming
Reports applies to commercial broadcast television stations. Thus, we
estimate that 784 or fewer commercial TV broadcast stations are small
businesses, as defined by the SBA.

g\. [Any Significant Alternatives Minimizing the Impact on Small
Entities and Consistent with the Stated Objectives]{.underline}: The RFA
requires an agency to describe any significant alternatives that it has
considered in reaching its proposed approach, which may include the
following four alternatives (among others): (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities. 5 U.S.C.
§ 603( c).

This *Further Notice* invites comment generally on the tentative
conclusion to require commercial television broadcasters that maintain a
website to post their quarterly Children's Television Programming
Reports on that site at the same time that they place the reports in the
station's public inspection file. We also seek comment on whether
broadcasters should be required to maintain the reports on the website
until final action has been taken on the station's next renewal license.
We seek comment on whether there is a significant economic impact on any
class of small licensees as a result of any of these proposals. Any
significant alternatives presented in the comments will be considered.

**STATEMENT OF CHAIRMAN WILLIAM E. KENNARD**

*Re: In the Matter of Extension of the Filing Requirement for Children's
Television*

*Programming Reports (FCC Form 398) (MM Docket No. 00-44)*

Television is among the most powerful influences in our children's
lives. That influence can be overwhelmingly positive because the medium
has incredible potential to educate and enlighten our children. Or,
television programs may raise concerns about children's exposure to
excessive advertisements or inappropriate content. Broadcasters have an
obligation to serve the public interest, including the specific needs of
children. Since the passage of the Children's Television Act,
broadcasters, parents, child advocates, and government have worked
together to provide parents with educational programming choices for
their children.

> The Report and Order adopted today recognizes the success of the
> children's educational programming guidelines and rules. By their own
> reports, broadcasters have been providing not only the required three
> hours of educational programming each week, but an average of four
> hours each week. We must continue to ensure that parents have access
> to this critical information about the educational programming.
>
> However, we missed a unique opportunity to advance the public interest
> in this area by not adding a very simple and logical requirement for
> broadcasters to describe their efforts to increase the public's
> awareness of children's programming as disclosed in the Children's
> Television Programming Reports, Form 398. Recent studies indicate that
> too many parents still lack information about educational and
> informational programming. The current form only asks whether a
> broadcaster publicizes the existence and location of the station's
> Report. Public interest and child advocacy organizations raised
> significant questions in this proceeding about the extent of
> broadcasters\' efforts to publicize these Reports. Requiring
> broadcasters to describe briefly their efforts would promote the goals
> of the Children's Television Act and would not place undue burdens on
> licensees. I strongly encourage broadcasters to respond to the
> concerns of parents and advocates and to provide this information
> voluntarily.

DISSENTING STATEMENT OF

COMMISSIONER HAROLD W. FURCHTGOTT-ROTH

In the Matter of Extension of the Filing Requirement for Children's
Television Programming Reports (FCC Form 398), MM Docket No. 00-44.

I dissent from this Report and Order ("R&O") on the extension of the
filing requirement for children's television programming reports, and
also from the Further Notice of Proposed Rulemaking ("FNPRM") on
mandatory web posting of the reports by broadcasters.

As for the changes to the rule regarding Form 398, I have several areas
of disagreement. First, I would not make permanent the filing
requirement.[^50] At the Notice stage of this proceeding, I expressed my
view that the record revealed scant evidence that these reports
accomplish the Commission's asserted goals, including helping parents
plan their children's television viewing.[^51] I see no more
documentation now of the actual utility of these reports than I did
then. Second, given my skepticism regarding the actual need for these
reports, I would not increase the procedural burden on broadcasters by
requiring them to file the reports on a quarterly, as opposed to annual,
basis.[^52] Third and finally, I would not increase the substantive
burden on broadcasters by asking them to provide more information in the
form than they do now.[^53]

In sum, these forms are of little real-world utility to start with.
Requiring broadcasters to fill out a still longer form and file them
even more frequently accomplishes little more than imposing increased
costs on broadcasters without any proof of the creation of corresponding
benefits.

With respect to the question of mandatory web posting of the reports, as
raised in the FNPRM,[^54] such a requirement is wholly unnecessary. The
FCC web site *already* provides these reports. It is an inefficient use
of broadcaster resources -- particularly those of small broadcasters who
may not have their own web sites but will be forced to create them in
order to satisfy the proposed rule -- to post the reports in a
duplicative format or to require them to provide a link to the FCC site.

**SEPARATE STATEMENT OF COMMISSIONER MICHAEL K. POWELL**

# *Re: In the Matter of Extension of the Filing Requirement for Children\'s Television Programming Reports (FCC Form 398), MM Docket No. 00-44, Report and Order and Further Notice of Proposed Rule Making* {#re-in-the-matter-of-extension-of-the-filing-requirement-for-childrens-television-programming-reports-fcc-form-398-mm-docket-no.-00-44-report-and-order-and-further-notice-of-proposed-rule-making .unnumbered}

For the foregoing reasons, I respectfully dissent from this R&O and
FNPRM.

The Children\'s Television Act of 1990 (\"CTA\") requires that in
reviewing a television broadcast renewal application,[^55] the
Commission must consider whether 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.\"[^56] Under the Commission\'s
implementing rules, a broadcaster can expect to satisfy the
Commission\'s review, if it abides by its \"processing guidelines.\" The
guidelines are, in essence, a safe harbor---if a broadcaster offers
three hours of regularly scheduled children\'s educational programming
per week, his application will be reviewed at the staff level and will
be found to satisfy the CTA. A broadcaster that does not elect to follow
the guidelines can still satisfy the requirements of the CTA, if he
\"demonstrates a level of commitment to educating and informing children
that is at least equivalent to airing three hours per week of core
programming,\"[^57] through a different mix of education and information
programming. Commission rules also require broadcasters to complete
quarterly Children\'s Television Programming Reports identifying core
programming and to place them in their public files for inspection. The
central component of today\'s *Order* is to expand the reporting
requirement.

I support two changes made to the Children\'s Educational Television
Reporting requirements in this Order: the continuation of the reporting
obligations and the change from an annual to a quarterly filing. Neither
of these are burdensome obligations and both requirements will make the
information contained in the reports more readily available for purposes
of enforcing the Children\'s Television Act of 1990. Initially, I was
less enthusiastic about expanding the substance of the reports, by
modifying Form 398, but ultimately became comfortable that the
modifications were modest and served valid purposes. I do, however,
write separately to highlight what I believe are those purposes.

The Children\'s Television Programming Reports serve two valid purposes:
First, the reports serve as a contemporary record of a broadcaster\'s
efforts to avail himself of the processing guidelines\' safe harbor.
Television licenses come up for review only every eight years. At the
end of such a long period, it would be challenging for the Commission to
verify a licensee\'s claim that it satisfied the guidelines, without a
body of record evidence developed over the license period. Second, by
stations making these reports available for public inspection, the
members of the community to whom a broadcaster is committed to serve
will have a better understanding of their local stations\' efforts.
Likewise, it will facilitate parents\' efforts to plan, to a limited
degree, what their children watch.

Throughout the *Order*, however, there is a third purpose suggested that
I believe is untenable. The *Order* regularly emphasizes that the
reports allow the public to play an active role in helping the
Commission \"enforce\" the children\'s programming requirements.
Similarly, the *Order* hails the reports as a way to facilitate
\"monitoring license compliance\" and to assist the FCC in its
\"enforcement role.\" The processing guidelines (consisting of three
hours of regularly scheduled programming) are not accurately described
as requirements. Indeed, a broadcaster could air a different mix of
programming, or very little children\'s programming during its license
term and not, technically speaking, violate any rule. The only
consequence is that he may not avail himself of the safe harbor at the
time his application is up for renewal. Thus, he may be placing his
license at risk by not complying with the processing guideline, but he
is not violating any rule.[^58]

I highlight the nature of the processing guidelines to make the point
that expanding our reporting requirements cannot rest on any notion of
ongoing enforcement, for there is none to be had. The extent of the
reports must be justified, and constrained, by reference to the purposes
of the CTA and our obligations in reviewing license renewal
applications. On balance, I think the changes today are supportable as
measured by this standard.

One final note: Given that our rules do not specifically command
broadcasters to air three hours per week of children\'s educational
programming, they should be commended for doing so. This *Order*
demonstrates that a very substantial percentage of stations are offering
this valuable programming. Of course, this is self-interested to a
degree, for it lowers the risk that their licenses will not be renewed.
But, it takes more than simple risk management to produce a quality
children\'s educational program and many of the positive results we see
today reflect the commendable joint efforts of government and the
broadcasting community.

**PARTIAL DISSENT OF COMMISSIONER GLORIA TRISTANI**

[In the Matter of The Extension of the Filing Requirement for Children's
Television Programming Reports (fcc form 398)]{.smallcaps}*: Report and
Order and Further Notice of Proposed Rule Making*

I strongly support the extension of this filing requirement. I also
strongly support the modifications to FCC Form 398 that are designed to
improve public access to the information contained in the form. Ensuring
the availability of information to consumers and parents about
children's television programs is a key obligation of the Commission and
one that is shared with the broadcasters of such programs.

My partial dissent is very narrow and is rooted in the shared obligation
with the broadcasters. Our rules require broadcasters to publicize the
"existence and location" of the information about their children's
television programs. Question 8 of the form we amend today asks
broadcasters if they have complied with the requirement that they
publicize the availability of this information. Question 8 is a yes or
no question. Studies submitted in the record of this matter demonstrate
that, despite the availability of Form 398, parents are often unaware of
the existence of these reports and about which children's programs are
educational and informational as well as the location of more detailed
information about the programs.

To remedy this problem, and to respond to comments we have received, we
should have amended Question 8 to require the broadcasters to state with
specificity and in detail the efforts they have undertaken to make the
information in Form 398 available to viewers and parents. Increasing
public awareness of children's television programs is a key component of
ensuring parents have the tools they need to choose quality programs for
their children. Today we declined to amend Question 8 and make Form 398
a better tool for empowering parents. On this point, I respectfully
dissent.

[^1]: *See, e.g*., Henry J. Kaiser Family Foundation, *Kids and Media at
    the New Millenium* (Nov. 1999).

[^2]: 47 U.S.C. § 303b.

[^3]: 47 U.S.C. § 303a &b. *See also* S. Rep. No. 227, 101^st^ Cong.,
    1^st^ Sess 5-9 (1989) (Senate Report).

[^4]: *See* Senate Report at 1.

[^5]: See *Report and Order*, *Policies and Rules Concerning Children's
    Television Programming*, MM Docket No. 93-48, 11 FCC Rcd 10660
    (1996) ("*Children's Programming Report and Order"*).

[^6]: 47 C.F.R. § 73.673

[^7]: 47 C.F.R. § 73.671

[^8]: 47 C.F.R. § 73.3526(e)(11)(iii).

[^9]: 47 C.F.R. § 73.3526(e)(11)(iii).

[^10]: 47 C.F.R. § 73.3526(e)(11)(iii ) currently states:

    > 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, in electronic
    >
    > form as of January 10, 1999. These Reports shall be filed with the
    > Commission on January 10, 1998, January 10, 1999, and January 10,
    > 2000.

[^11]: *Children's Television Programming Report and Order*, 11 FCC Rcd
    at 10711.

[^12]: *See, e.g.*, letters dated July 11, 1997 from Roy J. Stewart,
    Chief, Mass Media Bureau to: Martin D. Franks, Senior Vice
    President, Washington, CBS, Inc.; Alan Braverman, Senior Vice
    President & General Counsel, ABC, Inc.; Rick Cotton and Diane
    Zipursky, NBC, Inc.

[^13]: *Notice of Proposed Rule Making*, *In the Matter of The Extension
    of the Filing Requirement For Children's Television Programming
    Reports (FCC Form 398)*, MM Docket No. 00-44, 15 FCC Rcd 6326 (2000)
    ("*Notice*").

[^14]: *Notice* at ¶ 11.

[^15]: We received one comment in response to our *Notice*, and one
    reply comment.

[^16]: The individuals and organizations who filed comments together
    with CME, Peggy Charren, and the Annenberg Public Policy Center are:
    the American Academy of Child and Adolescent Psychiatry; the
    American Psychological Association; Sandra Calvert, Professor of
    Psychology at Georgetown University; the Center for Science in the
    Public Interest; Children Now; the Council of State School Offices;
    the Consumer Federation of America; Dale Kunkel, Professor of
    Communication at University of California at Santa Barbara; the
    National Association for Elementary School Principals; the National
    Alliance for Non-Violent Programming; the National Black Child
    Development Institute; the National Education Association; and the
    National PTA.

[^17]: CME *et al*. Comments at 2.

[^18]: NAB Reply Comments at 1.

[^19]: *Notice* at ¶ 10.

[^20]: CME *et al.* Comments at 3, note 3. The *Notice* also pointed out
    that the Center for Research on the Influences of Television on
    Children at the University of Texas reviews local broadcasters'
    reports as part of an annual evaluation of children's programming in
    the Ausin, Texas market.

[^21]: *See, e.g.*, *The Effect of Preemption on Children's Educational
    and Informational Programming, 1997-1998 Television Season*, DA
    98-2306 (Nov. 1998).

[^22]: *Children's Programming Report and Order*, 11 FCC Rcd at 10726.

[^23]: 47 C.F.R.§ 73.3526(e)(11)(iii).

[^24]: CME *et al*. Comments at 5.

[^25]: NAB Reply Comments at 2.

[^26]: CME *et al*. Comments at 4-5.

[^27]: *Notice* at ¶ 11.

[^28]: CME *et al.* Comments at 6-7. The Commission declines to adopt
    CME's recommendation regarding efforts to publicize the reports.

[^29]: CME *et al*. Comments at 7, n. 5 and 8-9.

[^30]: For example, question 5 of the current form asks licensees to
    indicate the "total times aired" for each program. This information
    is not broken down into the number of time the program aired at its
    regularly scheduled time, and the number of times preempted episodes
    were aired at a rescheduled time.

[^31]: On behalf of their owned and affiliated stations, the ABC, CBS,
    and NBC networks have committed to provide publishers of program
    guides with the alternate date/time when the preempted show will air
    and/or to notify viewers of the alternate date/time. *See, e.g*.,
    July 11, 1997 letters, *supra* note 11.

[^32]: *Children's Programming Report and Order*, 11 FCC Rcd at
    10688-10689

[^33]: *See, e.g.*, Amy B. Jordan, *Is the Three-Hour Rule Living Up to
    Its Potential?, An Analysis of Educational Television for Children
    in the 1999/2000 Broadcast Season*, The Annenberg Public Policy
    Center of the University of Pennsylvania, 2000.

[^34]: NAB Reply Comments at 5.

[^35]: *Notice* at ¶ 6.

[^36]: *See* NAB Reply Comments at 4.

[^37]: 47 C.F.R. § 73.3526(e)(11)(iii).

[^38]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et seq*.,
    has been amended by the Contract With America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^39]: See 5 U.S.C. § 604.

[^40]: *See* Letter from Jere W. Glover, Chief Counsel for Advocacy and
    Eric E. Menge, Assistant Chief Counsel for Telecommunications,
    Office of Advocacy, U.S. Small Business Administration, to William
    E. Kennard, Chairman, Federal Communications Commission, dated
    August 31, 2000.

[^41]: 47 C.F.R. § 73.673(b).

[^42]: 5 U.S.C. § 603(b)(3).

[^43]: 5 U.S.C. § 601(3)(1980).

[^44]: 5 U.S.C. § 632.

[^45]: 13 C.F.R. § 121.201 (SIC Code 4833).

[^46]: BIA Research Inc., MEDIA Access Pro Data Base, July 11, 2000.

[^47]: *See* para. 22, *supra*.

[^48]: 13 C.F.R. § 121.201 (SIC Code 4833).

[^49]: BIA Research Inc., MEDIA Access Pro Data Base, July 11, 2000.

[^50]: *See supra* at paras. 9-11.

[^51]: See Joint Concurring Statement of Commissioners Harold
    Furchtgott-Roth and Michael Powell, Notice of Proposed Rulemaking,
    In the Matter of Extension of the Filing Requirement for Children's
    Television Programming Reports (FCC Form 398), MM Docket No. 00-44,
    15 FCC Rcd. 6326 (2000) ("We are not prepared to conclude, without
    the benefit of further comment, that the filing of these reports
    necessarily accomplishes the goals for which they were intended.").

[^52]: *See supra* at paras. 12-16.

[^53]: *See supra* at paras. 17-24.

[^54]: *See supra* at paras. 25-27.

[^55]: In 1997, the Commission increased the license term for television
    stations from 5 years to 8 years*. See Implementation of Section 203
    of the Telecommunications Act of 1996*, MM Docket No. 96-90, 12 FCC
    Rcd 1720 (1997). The 1996 Telecom Act also eliminated comparative
    renewals and directed the Commission to grant a broadcaster's
    renewal application if statutory renewal standards are met. See 47
    U.S.C. § 309 (k); 47 C.F.R.

    § 73.3591.

[^56]: *See* In the Matter of Policies and Rules Concerning Children\'s
    Television Programming, MM Docket No. 93-48, FCC 96-335, *Report and
    Order*, 11 FCC Rcd 10660, ¶ 1 (1996).

[^57]: *Id*, ¶ 5.

[^58]: It is important to also note that the Children\'s Television Act
    does not strictly speaking require any programming during the
    license term, but only commands the Commission to consider the
    broadcaster\'s efforts when reviewing the application for renewal.