**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Extension of the Filing Requirement ) MM Docket No. 00-44

For Children\'s Television Programming )

Reports (FCC Form 398) )

)

)

**[NOTICE OF PROPOSED RULE MAKING]{.underline}**

Adopted: March 9, 2000 Released: April 6, 2000

Comment Date: June 12, 2000

Reply Comment Date: July 12, 2000

By the Commission: Commissioners Furchtgott-Roth and Powell concurring
and issuing a joint statement.

**I. INTRODUCTION**

1\. This *Notice of Proposed Rule Making* (*Notice*) proposes to amend
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 annual filing requirement
will permit the Commission to continue to enforce the Children\'s
Television Act of 1990 (\"CTA\"),[^1] 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.

**II. BACKGROUND**

2\. 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 accomplished that
objective by placing on every television licensee an obligation to
provide such programming, including programming specifically designed to
educate and inform children, and by requiring the FCC to enforce that
obligation.

3\. The Commission\'s initial rules implementing the CTA, adopted in
1991, included a very flexible definition of educational programming and
did not establish quantitative guidelines regarding the amount of
educational programming licensees were required to provide. In addition,
these initial rules did not include measures designed to inform the
public about educational programming. Within a few years after these
initial rules took effect, questions began to be raised regarding the
effectiveness of the new rules, and in particular about the content of
the programs stations claimed were educational.

4\. 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 improve public access to
information about the availability of programming \"specifically
designed\" to serve children\'s educational and informational needs
(otherwise known as \"core\" programming). These measures include a
requirement that licensees identify core programming at the time it is
aired and in information provided to publishers of television program
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.[^7] In addition, the rules also
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 their license renewal
applications.[^8]

5\. One of the most important public information measures adopted by the
Commission in 1996 is the requirement that licensees complete a
Children\'s Television Programming Report (FCC Form 398) each calendar
quarter.[^9] 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 child 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.

6\. The Reports are prepared on a quarterly basis and must be placed in
the station\'s public inspection file. Stations are required to
publicize the existence and location of the reports. In addition, as
noted above, the rules currently provide that, \"for an experimental
period of three years\" these Reports must be filed with the Commission
on an annual basis (four quarterly reports filed jointly once a year) on
the following dates: January 10, 1998, January 10, 1999, and January 10,
2000. The Reports must be filed with the Commission electronically,[^10]
and the Commission posts the Reports on the FCC\'s Internet home page
where they can be readily accessed by the public.[^11] The Commission
also encourages broadcasters to make these Reports available on their
own websites.

**III. DISCUSSION**

7\. The public information initiatives adopted in 1996 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. In adopting the public information initiatives as part of
its revised educational programming rules, the Commission explained
their purpose as follows:

> 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. As CBS
> \'wholeheartedly\' agrees, \'judgments of the quality of a licensee\'s
> programming, educational or otherwise, are best made by the audience,
> not the federal government.\' Thus, our rules should facilitate easy
> access to information regarding children\'s educational programming in
> the community.[^12]

8\. Facilitating public access to the information contained in the
Children\'s Television Programming Reports helps the marketplace to
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 the 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. Better information also helps parents in
working with broadcasters in their local communities to improve
children\'s educational programming without government intervention. The
information contained in the Reports can 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. The
Commission encourages parents and others to communicate directly with
stations and program producers regarding the shows stations claim meet
the FCC\'s definition of \"core\" programming. 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.

9\. The requirement that broadcasters file their Children\'s Television
Programming Reports with the Commission was initially adopted, on an
experimental basis, for a period of three years. To date, Reports have
been filed for two successive years, January 10, 1998[^13] and January
10, 1999. Under the current rules, the filing requirement expires after
Reports for 1999 are filed January 10, 2000. We believe that the
requirement that broadcasters file these Reports with the FCC should be
continued. Therefore, we propose to retain the filing requirement
indefinitely, and request comment on this proposal.

10\. Anecdotal evidence suggests that organizations devoted to informing
parents and community members about children's programming use the
reports as a primary data source. For example, 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 Austin, Texas market. The Center for Media
Education uses the reports to develop tools for parents. Other
organizations, including 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. The filing requirement is an important part of
the emphasis placed by the rules on improving the flow of information to
the public about educational programming. Filing permits the Commission
to place the Reports on its website, making this information easily
accessible in one central location. Members of the public can view
Reports from a number of stations easily, and compare results, without
having to contact each station individually. 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 on their station\'s children\'s programming
only once every eight years, at the end of the license term. Extension
of the license term to eight years necessarily places a heavier emphasis
on facilitating public monitoring of licensee compliance with the rules,
to assist the FCC in its enforcement role. Among other things, the
Commission has relied upon information in the Reports to evaluate
industry practices in connection with preemption of children\'s
programming.[^14] A review of the Children\'s Television Programming
Reports filed with the Commission for 1998 indicates that, of the 4,964
quarterly reports filed, 63 reported less than 3 hours of core
children\'s educational and informational programming, 2,116 reported
exactly 3 hours of core programming, and 1,832 reported 4 or more hours
of core programming. 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.[^15] The Commission will
commence that review after January 10, 2000, the filing due date for the
last Children\'s Television Programming Reports of the three-year
period.

11\. We also request comment 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. As broadcasters must prepare the Reports
quarterly, requiring Reports to be filed on a quarterly basis is
unlikely to impose a significant additional burden on licensees,
especially now that Reports are required to be filed electronically and
transmission to the Commission should require only a few additional
keystrokes. 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?

**IV. ADMINISTRATIVE MATTERS**

12\. *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 June 12, 2000 and reply comments
on or before July 12, 2000. 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).

13\. 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.

14\. 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.

15\. Parties who choose to file by paper should also submit their
comments on diskette. These diskettes should be submitted to: Kim
Matthews, 445 Twelfth Street, S.W.; 2-C225, 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.

16\. *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).

17\. *Initial Regulatory Flexibility Analysis*. With respect to this
Notice, and Initial Regulatory Flexibility Analysis (\"IRFA\") is
contained in Appendix A. 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 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 Secretary shall send a copy of this 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.

18\. *Authority*. This Notice is issued pursuant to authority contained
in Sections 4(i), 303, and 307 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), 303, and 307.

19\. *Additional Information*. For additional information on this
proceeding, please contact Kim Matthews, Policy and Rules Division, Mass
Media Bureau, (202) 418-2154.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**APPENDIX A**

*Initial Paperwork Reduction Act of 1995 Analysis*. This NPRM proposes
to continue indefinitely the requirement that broadcast television
licensees file with the Commission their Children\'s Television
Programming Reports on FCC Form 398. In addition, the NPRM invites
comment on whether these filings should be required on a quarterly,
rather than an annual, basis, and on whether revisions should be made to
Form 398 to reduce the burden on licensees. As part of our continuing
effort to reduce paperwork burdens, we invite the general public and the
Office of Management and Budget (OMB) to take this opportunity to
comment on the information collections contained in this NPRM, as
required by the Paperwork Reduction Act of 1995, Public Law No. 104-13.
Public and agency comments are due at the same time as other comments on
this Notice; OMB comments are due 60 days from the date of publication
of this Notice in the Federal Register. 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) 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. 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.; 1-C8004,
Washington, D.C. 20554, or via the Internet to jboley@fcc.gov and to
Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 17th Street, N.W.,
Washington, D.C. 20503 or via the Internet to fain_t@al.eop.gov.

*Initial Regulatory Flexibility Act 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 this
NPRM. 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 NPRM, 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 NPRM, 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. Our goals in
commencing this proceeding and in formulating the proposals in the NPRM
are to ensure that the FCC and the public have adequate information
regarding educational programming for children and licensee compliance
with the CTA and the FCC\'s rules.

b\. Need For and Objectives of the Proposed Rule Changes. Our goal in
commencing this proceeding and in formulating the proposals in the NPRM
is to ensure that the public continues to have access to information
regarding the educational programming being aired by television
broadcast licensees to assist parents in selecting educational
programming for their children and to assist the public in monitoring
the performance of stations in complying with the CTA and the FCC\'s
rules. Our goal is also to ensure that the FCC receives adequate
information to enforce the CTA and its rules, and to permit it to
provide a central location for access to Children\'s Television Reports
on the FCC\'s Internet website.

c\. Legal Basis. Authority for the actions proposed in the NPRM may be
found in Sections 4(i) and 303 and 307 of the Communications Act of
1934, as amended, 47 U.S.C. §§ 154(i), 303, and 307.

d\. Recording, Recordkeeping, and Other Compliance Requirements. The
NPRM proposes to continue indefinitely existing filing requirements, and
invites comments on whether licensees should be required to file
Children\'s Television Programming Reports on a quarterly rather than an
annual basis.

e\. Federal Rules that Overlap, Duplicate, or Conflict with the Proposed
Rules. The rules proposed 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. 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. There are
approximately 1,240 existing commercial television broadcasters of all
sizes that may be affected by the proposals contained in this NRPM.

g\. Any Significant Alternatives Minimizing the Impact on Small Entities
and Consistent with the Stated Objectives: This NPRM solicits comment on
a number of proposals, including continuation of the existing
requirement to file Children\'s Television Programming Reports with the
Commission. We seek comment in the NPRM on this proposal as well as on
other issues, and on whether there is a significant economic impact on
any class of small licensees as a result of any of our proposals. Any
significant alternatives presented in the comments will be considered.

**JOINT CONCURRING STATEMENT OF**

**COMMISSIONERS HAROLD FURCHTGOTT-ROTH and MICHAEL POWELL**

*Re: Extension of the Filing Requirement For Children's Television
Programming Reports (FCC 398)*

We concur in the decision to adopt the Notice of Proposed Rule Making to
query whether the Commission should amend Section 73.3526(e)(11)(iii) to
continue indefinitely the requirement that commercial broadcast
television licensees file Children's Television Programming Reports (FCC
Form 398). But we object to the Commission's conclusion, at this stage
of the proceeding, that a permanent reporting requirement should be
adopted. 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 are intended. We look forward to comments from
interested parties not only on the Commission's specific proposal
articulated in the NPRM, but also on other alternative approaches that
parties may recommend.

[^1]: ^?^ Children\'s Television Act of 1990, Pub. L. No. 101-437, 104
    Stat. 996-1000, *codified at* 47 U.S.C. §§ 303a, 303b, 394.

[^2]: ^?^ 47 U.S.C. § 303b.

[^3]: ^?^ 47 U.S.C. § 303a & b. *See also* S. Rep. No. 227, 101st Cong.,
    1st 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. § 73.3526(a)(11)(iii).

[^8]: ^?^ 47 C.F.R. § 73.671.

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

[^10]: ^?^ Mandatory electronic filing first applied to Reports filed
    January 10, 1999. *See Report and Order, 1998 Biennial Regulatory
    Review - Streamlining of Mass Media Applications, Rules, and
    Processes*, MM Docket No. 98-43, 13 FCC Rcd. 23056 (1998), at ¶ 10,
    *Memorandum Opinion and Order*, FCC 99-267 (rel. Oct. 6, 1999). An
    electronic version of Form 398 has been available since the spring
    of 1997, and some licensees have chosen voluntarily to file
    electronically since that time.

[^11]: ^?^ The address for the Commission\'s home page is:
    http://www.fcc.gov.

[^12]: ^?^ *Children\'s Programming Report and Order*, 11 FCC Rcd 10660,
    at ¶ 47.

[^13]: ^?^ While the Commission\'s requirement that broadcasters prepare
    quarterly Reports became effective in early 1997, the definition of
    core programming did not go into effect until September 1997. Thus,
    Reports filed in January 1998 contain information about core
    programming only for the fourth and part of the third quarter of
    1997.

[^14]: ^?^ *See*, *e.g., The Effect of Preemption on Children\'s
    Educational and Informational Programming, 1997-1998* *Television
    Season*, FCC, DA 98-2306 (Nov. 1998).

[^15]: ^?^ *Children\'s Programming Report and Order,* 11 FCC Rcd at
    10726.