Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 25

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by March 4, 2005. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).)

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds.

Dated: December 17, 2004. 

Richard E. Greene, 

Regional Administrator, Region 6.

■ 40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

■ 1. The authority citation for part 52 

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart SS—Texas

■ 2. In § 52.2270, the table in paragraph 

(e) entitled ‘‘EPA approved 

nonregulatory provisions and quasiregulatory measures’’ is amended by 

adding one new entry to the end of the 

table to read as follows:

§ 52.2270 Identification of plan.

* * * * *

(e) * * *

EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP 

Name of SIP provision Applicable geographic or 

nonattainment area 

State approval/submittal date EPA approval date Comments 

* * * * * * * 

Second 10-year maintenance plan for Victoria 

County.

Victoria ............................... 02/05/03 01/03/05 [Insert FR page number where document begins].

■ 3. Section 52.2275, Control strategy 

and regulations: Ozone, paragraph (e) is 

revised to read as follows:

§ 52.2275 Control strategy and 

regulations: Ozone.

* * * * *

(e) Approval—The Texas Commission 

on Environmental Quality (TCEQ) 

submitted a revision to the Texas SIP on 

February 18, 2003, concerning the 

Victoria County 1-hour ozone 

maintenance plan. This SIP revision 

was adopted by TCEQ on February 5, 

2003. This SIP revision satisfies the 

Clean Air Act requirement, as amended 

in 1990, for the second 10-year update 

to the Victoria County 1-hour ozone 

maintenance area.

[FR Doc. 04–28700 Filed 12–30–04; 8:45 am] 

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 73 and 76 

[MM Docket No. 00–167; FCC 04–221] 

Broadcast Services; Children’s 

Television; Cable Operators

AGENCY: Federal Communications 

Commission.

ACTION: Final rule.

SUMMARY: This document resolves a 

number of issues regarding the 

obligation of television broadcasters to 

protect and serve children in their 

audience. The document addresses 

matters related to two areas: the 

obligation of television broadcast 

licensees to provide educational and 

informational programming for children 

and the requirement that television 

broadcast licensees protect children 

from excessive and inappropriate 

commercial messages. The Commission 

goal is to provide television 

broadcasters with guidance regarding 

their obligation to serve children as we 

transition from an analog to a digital 

television environment, and to improve 

our children’s programming rules and 

policies.

DATES: 47 CFR 73.670(a), (b) and (c) and 

Note 2, 47 CFR 73.673, and 47 CFR 

76.225(b) and (c) are effective February 

1, 2005. 47 CFR 73.670, Note 1; 47 CFR 

73.671 (c)(6), (c)(7), (d), (e), and (f) and 

Note 2; and 47 CFR 76.225 (d) and Note 

1 are effective January 1, 2006. 47 CFR 

73.671(c)(5) and 47 CFR 

73.3526(e)(11)(iii) contain information 

collection requirements that have not 

been approved by the Office of 

Management and Budget (OMB). The 

FCC will publish a document 

announcing the effective date for these 

sections.

ADDRESSES: Federal Communications 

Commission, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Kim 

Matthews, Media Bureau, (202) 418–

2120.

26 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Federal 

Communications Commission’s Report 

and Order in MM Docket No. 00–167, 

FCC 04–221, adopted September 9, 

2004, and released November 23, 2004. 

The complete text of this document is 

available for inspection and copying 

during normal business hours in the 

FCC Reference Center, 445 12th Street, 

SW., Washington, DC 20554. The 

complete text may be purchased from 

the Commission’s copy contractor, 

Qualex International, 445 12th Street, 

SW., Room CY–B402, Washington, DC 

20554. The full text may also be 

downloaded at: http://www.fcc.gov. To 

request materials in accessible formats 

for people with disabilities (braille, 

large print, electronic file, audio 

format), send an e-mail to 

fcc504@fcc.gov or call the Consumer & 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

Paperwork Reduction Act: This 

document contains modified 

information collections subject to the 

Paperwork Reduction Act of 1995 

(PRA), Public Law 104–13. It will be 

submitted to the Office of Management 

and Budget (OMB) for review under 

section 3507(d) of the PRA. OMB, the 

general public, and other Federal 

agencies will be invited to comment on 

the modified and proposed information 

collection requirements contained in 

this proceeding. 

Summary of the Report and Order and 

Further Notice of Proposed Rule 

Making 

1. In this Report and Order we resolve 

a number of issues raised in the Notice 

of Proposed Rulemaking (65 FR 66951–

01, November 8, 2000) regarding the 

obligation of television broadcasters to 

protect and serve children in their 

audience. We address matters related to 

two areas: The obligation of television 

broadcast licensees to provide 

educational and informational 

programming for children and the 

requirement that television broadcast 

licensees protect children from 

excessive and inappropriate commercial 

messages. For purposes of the 

Children’s Television Act of 1990, 

which provides the basis for these limits 

on children’s television commercial 

content, ‘‘the term ‘commercial 

television broadcast licensee’ includes a 

cable operator, as defined in section 602 

of the Communications Act of 1934 (47 

U.S.C. 522).’’ While some of the rules 

and policies we adopt herein apply only 

to digital broadcasters, others apply to 

both analog and digital broadcasters as 

well as cable operators. Our goals in 

resolving these issues are to provide 

television broadcasters with guidance 

regarding their obligation to serve 

children as we transition from an analog 

to a digital television environment, and 

to improve our children’s programming 

rules and policies. 

2. First, we address the obligation of 

digital television (‘‘DTV’’) broadcasters 

to provide children’s educational and 

informational programming and, 

specifically, how that obligation applies 

to DTV broadcasters that use the 

multicast capability of their ATSC 

digital service to broadcast multiple 

program services. We adopt an approach 

pursuant to which digital broadcasters 

that choose to provide streams or hours 

of free video programming in addition 

to their required free over-the-air video 

program service will have an increased 

core programming benchmark roughly 

proportional to the additional amount of 

free video programming they choose to 

provide. Second, for both analog and 

digital broadcasters, we limit the 

number of preemptions allowed under 

our processing guideline to no more 

than 10 percent of core programs in 

each calendar quarter. A station that 

fails to meet the processing guideline 

because of excessive preemptions may 

still receive staff-level approval of its 

renewal application if it demonstrates 

that it has aired a package of 

educational and informational 

programming, including specials, PSAs, 

short-form programs, and regularly 

scheduled non-weekly programs with a 

significant purpose of educating and 

informing children, that demonstrates a 

commitment to educating and informing 

children at least equivalent to airing the 

amount of core programming indicated 

by the processing guideline. Licensees 

that do not qualify for staff level 

approval will have their license renewal 

applications referred to the Commission 

where they will have an additional 

opportunity to demonstrate compliance 

with the CTA. Third, we amend our rule 

regarding on-air identification of core 

programming to require both analog and 

digital broadcasters to identify such 

programming with the same symbol, E/

I, which must be displayed throughout 

the program in order for the program to 

qualify as core educational 

programming. Fourth, we clarify that 

the children’s television commercial 

limits and policies apply to all digital 

video programming directed to children 

ages 12 and under. Fifth, we interpret 

the commercial time limits to require 

that the display of Internet Web site 

addresses during program material is 

permitted as within the time limits only 

if the Web site meets certain 

requirements, including the requirement 

that it offer a substantial amount of bona 

fide program-related or other 

noncommercial content and is not 

primarily intended for commercial 

purposes. Sixth, we revise our 

definition of ‘‘commercial matter’’ to 

include promotions of television 

programs or video programming 

services other than children’s 

educational and informational 

programming. Educational and 

Informational Programming.

Digital Core Children’s Programming 

Processing Guideline 

3. One of the questions posed in the 

Notice is how the current three-hour 

children’s core educational 

programming processing guideline 

should apply to a DTV broadcaster that 

chooses to multicast. We asked if the 

processing guideline should apply to 

only one digital broadcasting program 

stream, to more than one program 

stream, or to all program streams the 

broadcaster chooses to provide. We also 

noted that DTV broadcasters may 

choose to devote a portion of their 

spectrum to either non-video services, 

such as datacasting, or to subscription 

video services available only to viewers 

who pay a fee, consistent with the 

requirement that they provide at least 

one free, over-the-air video program 

service to viewers. We asked whether 

the guideline should apply only to free 

broadcast services or also to services 

offered for a fee, and to video services 

only or also to non-video services. 

Finally, we asked how we should take 

into account the fact that DTV 

broadcasters have the flexibility to vary 

the amount and quality of broadcast 

programming they offer throughout the 

day. For example, a broadcaster could 

air 4 SDTV channels from 8 a.m. to 3 

p.m., switch to two higher definition 

channels from 3 p.m. to 8 p.m., and 

finish with one HDTV channel for 

prime-time and late-night programming. 

4. We have three main goals in 

crafting children’s educational and 

informational programming rules for 

digital broadcasting. First, we want to 

ensure that the needs of children 

continue to be served ‘‘through the 

licensee’s overall programming.’’ We 

agree with children’s television 

advocates who strongly support the 

position that any increase in 

multicasting channel capacity that 

broadcasters choose to implement as a 

result of digital technology should 

translate to a commensurate increase in 

the amount of educational programming 

available to children. Second, we want 

to provide broadcasters with flexibility 

in meeting their children’s core 

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 27

programming obligations to permit them 

to explore the myriad potential uses of 

their broadcast spectrum made possible 

by digital technology. Third, we want to 

address what has been identified by 

many as a persistent problem in our 

rules and policies implementing the 

CTA: the continued lack of awareness 

on the part of parents and others of the 

availability of core programming. This 

concern about lack of public awareness 

of core programming applies to both the 

analog and digital broadcast 

environments. 

5. The current 3 hours per week 

processing guideline was adopted with 

the one channel per broadcaster analog 

model in mind. With the advent of 

digital broadcasting and the 

multicasting ability that technology 

offers, a new method of quantifying the 

current core programming guideline for 

digital broadcasting is both necessary 

and appropriate. We also believe that 

whatever additional requirements we 

impose should be as concrete and 

quantifiable as possible to remove 

uncertainty and facilitate enforcement. 

6. We adopt today an approach 

pursuant to which digital broadcasters 

that choose to provide additional 

channels or hours of free video 

programming in addition to their 

required free over-the-air video program 

service will have an increased core 

programming benchmark roughly 

proportional to the additional amount of 

free video programming they choose to 

provide. This approach is similar to that 

proposed by a number of commenters in 

response to the NOI and the Notice. Our 

revised guideline will work as follows. 

Digital broadcasters will continue to be 

subject to the existing three hours per 

week core programming processing 

guideline on their main program stream. 

DTV broadcasters that choose to provide 

additional streams or channels of free 

video programming will, in addition, 

have the following guideline applied to 

the additional programming: 1⁄2 hour 

per week of additional core 

programming for every increment of 1 to 

28 hours of free video programming 

provided in addition to the main 

program stream. Thus, digital 

broadcasters providing between 1 and 

28 hours per week of free video 

programming in addition to their main 

program stream will have a guideline of 

1⁄2 hour per week of core programming 

in addition to the 3 hours per week on 

the main program stream. Digital 

broadcasters providing between 29 and 

56 hours per week of free video 

programming in addition to their main 

program stream will have a guideline of 

1 hour per week of core programming in 

addition to the 3 hours per week on the 

main program stream. Digital 

broadcasters providing between 57 and 

84 hours per week of free video 

programming in addition to their main 

program stream will have a guideline of 

11⁄2 hours per week of core 

programming in addition to the 3 hours 

per week on the main program stream. 

The guideline will continue to increase 

in this manner for additional hours of 

free video programming. These 

benchmarks were derived by dividing 

the total number of hours in the week 

(168) by 6 (the number of 1⁄2 hour core 

programming increments required 

under our current guideline, as core 

programs must be at least 30 minutes in 

length), which equals 28. Thus, under 

the revised guideline, for every 

increment of 1 to 28 hours of additional 

free video programming offered in 

addition to the main digital program 

stream, the broadcaster must air at least 

an additional 1⁄2 hour of core 

programming. Another way to look at 

this is that for each full time stream of 

additional free video programming (24 

hours day 7 days per week), the licensee 

must air an additional 3 hours per week 

of core programming.

7. Although we encourage stations to 

air more than an additional 1⁄2 hour per 

week of core programming for every 

increment of 28 hours of additional free 

video programming, in order to receive 

staff level approval of the CTA portion 

of their license renewal application 

under our revised processing guideline 

digital broadcasters must air at least 1⁄2

hour of core educational children’s 

programming for every increment of 1 to 

28 hours of free video programming 

provided in addition to the main 

program stream. As under our current 

processing guideline for the analog 

channel, a licensee will continue to be 

eligible for staff level approval if it 

demonstrates that it has aired a package 

of different types of educational and 

informational programming that, while 

containing somewhat less core 

programming than indicated by the 

revised guideline, demonstrates a level 

of commitment to educating and 

informing children at least equivalent to 

airing the amount of programming 

indicated by the guideline. In this 

regard, specials, PSAs, short-form 

programs, and regularly scheduled nonweekly programs with a significant 

purpose of educating and informing 

children may be counted toward the 

processing guideline. Licensees that do 

not meet these processing guidelines 

will be referred to the Commission, 

where they will have the opportunity to 

demonstrate compliance with the CTA 

in the same manner as under our 

current processing guideline. 

8. To be considered core, the 

programming must comply with all of 

the requirements for core programming 

specified in our rules: that is, it must 

have serving the educational and 

informational needs of children ages 16 

and under as a significant purpose; it 

must be aired between the hours of 7 

a.m. and 10 p.m.; it must be a regularly 

scheduled weekly program; it must be at 

least 30 minutes in length; the 

educational and informational objective 

and the target child audience must be 

specified in writing the licensee’s 

Children’s Television Programming 

Report; and instructions for listing the 

program as educational/informational, 

including an indication of the age group 

for which the program is intended, must 

be provided by the licensee to 

publishers of program guides. 

9. Our current 3 hours per week core 

programming processing benchmark is 

averaged over a six-month period in 

order to provide broadcasters with 

scheduling flexibility. We will also 

average the revised core programming 

processing benchmark to be applied to 

DTV broadcasters over a six-month 

period, thus providing some flexibility 

for digital broadcasters. The revised 

digital core programming guideline will 

become effective one year after release 

of this Report and Order. 

10. We are concerned that digital 

broadcasters do not simply replay the 

same core programming in order to meet 

our revised processing guideline, 

particularly if broadcasters offer 

multiple streams of free video 

programming and thereby face a higher 

core programming guideline. We 

recognize, however, that to some degree 

children can benefit from repeated 

viewing of the same core program, as 

the educational lesson or message is 

reinforced. Accordingly, we will not 

prohibit all repeats of core programming 

by digital broadcasters under our 

revised guideline, but will require that 

at least 50 percent of core programming 

not be repeated during the same week 

to qualify as core. Under our current 3 

hours per week processing guideline 

that applies to the analog channel, we 

allow repeats and reruns of core 

programming to be counted toward 

fulfillment of the guideline. We will 

exempt from this requirement any 

program stream that merely time shifts 

the entire programming line-up of 

another program stream. In addition, 

during the digital transition, we will not 

count as repeated programming core 

programs that are aired on both the 

analog station and a digital program 

stream. 

28 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 

11. In order to receive staff level 

approval of their license renewal 

application under our revised core 

programming processing guideline, 

digital broadcasters will be required to 

air at least three hours per week of core 

programming on their main program 

stream. To provide broadcasters with 

flexibility in choosing how best to serve 

their child audience, however, we will 

permit digital broadcasters to air all of 

their additional digital core 

programming, beyond the 3 hour 

baseline on the main digital program 

stream, on one free digital video 

channel or distribute it across multiple 

free digital video channels, at their 

discretion, as long as the stream/s on 

which the core programming is aired 

has comparable carriage on 

multichannel video programming 

distributors (‘‘MVPDs’’) as the stream 

whose programming generates the core 

programming obligation under the 

revised processing guideline. 

Educational and informational 

programming aired on subscription 

channels, however, will not be 

considered core under our processing 

guideline. In addition, the current three 

hours per week core programming 

processing guideline will continue to 

apply to analog stations until the analog 

channel is returned to the Commission 

at the end of the digital transition. Core 

programs aired on digital program 

streams will not be considered in 

evaluating whether a station has 

complied with the core programming 

processing guideline for its analog 

channel. 

12. We agree with those commenters 

who argue that, in some cases, children 

and parents may be best served by 

having core programming available on a 

channel that is devoted to programming 

appropriate for child or family viewing 

during all or part of the programming 

day or week. We also agree that 

requiring every programming stream to 

carry core programming could 

discourage broadcasters from 

experimenting with innovative 

multicasting services. If, for example, 

alternative content streams are used to 

directly expand the value of the main 

stream through the broadcasting of 

associated information or different 

camera angles or the alternative streams 

are used for low bit rate video services 

such as a dedicated weather channel, 

they may not be appropriate for the 

carriage of children’s programming. 

Moreover, we do not want to discourage 

broadcasters from providing highly 

specialized channels on which content 

directed to children might depart from 

the specialized focus. It is our 

expectation that broadcasters will 

develop such programming services. In 

the next three years, we intend to revisit 

the issues addressed in this Report and 

Order in another proceeding. At that 

time, we will consider, among other 

things, whether we should give 

broadcasters who choose to multicast 

more flexibility in terms of placement of 

core programming. 

13. The revised guideline discussed 

above applies to digital broadcasters and 

the digital programming they provide. 

Up until the time that analog channels 

are returned to the Commission, we will 

continue to apply our current three 

hours per week core children’s 

programming processing guideline to 

analog channels. Broadcasters will 

continue to file, on a quarterly basis, 

their Children’s Television 

Programming Report, on FCC Form 398. 

We will revise current FCC Form 398 to 

permit broadcasters to report both 

analog and digital core programming on 

that form. Once the new form has been 

approved for use, we will issue a Public 

Notice informing broadcasters of the 

availability of the form and the date on 

which the revised form must begin to be 

used in place of the current form. On 

that date, reports will also be required 

to include information about digital core 

programming. As we have done in the 

analog context, we will continue to 

exempt noncommercial television 

licensees from children’s programming 

reporting requirements with respect to 

their digital programming.

14. We also decline, at this time, to 

require high definition, interactivity, or 

other features made possible by digital 

technology to enhance core 

programming. We believe it would be 

premature to impose any requirement 

for use of technological advances in 

children’s programming until 

broadcasters have had more opportunity 

to experiment with these features in 

other programming. However, we 

encourage broadcasters to provide high 

definition educational and 

informational programming for children 

as well as educational interactive 

features, to ensure that children benefit 

from the capabilities of digital 

technology. We agree with those 

commenters who argue that use of such 

features could improve the educational 

potential of core programming. 

15. Finally, we disagree with those 

commenters that argue that the 

Commission lacks legal authority to 

impose new children’s educational and 

informational programming 

requirements. As noted above, digital 

broadcasters are subject to the CTA’s 

educational and informational 

programming requirements. In the 1996 

Children’s Programming Report and 

Order, we concluded that a safe harbor 

processing guideline approach to 

implementing the CTA is consistent 

with both the language and the intent of 

the statute. The revised quantitative 

processing guideline we adopt today for 

digital broadcasters is also consistent 

with the CTA and the First Amendment. 

In adopting the three hours per week 

core programming processing guideline 

for analog broadcasters, we concluded 

that defining what qualifies as 

programming ‘‘specifically designed’’ to 

serve the educational needs of children 

and giving broadcasters clear but 

nonmandatory guidance on how to 

guarantee compliance is a constitutional 

means of giving effect to the CTA’s 

programming requirement. The actions 

we take today extend the current 

processing guideline to digital 

broadcasters and increase the guideline 

only for broadcasters who choose to use 

their digital capacity to air more free 

video programming. Broadcasters 

continue to retain wide discretion in 

choosing the ways in which they will 

meet their CTA obligations. Our new 

guideline imposes reasonable 

parameters on a broadcaster’s use of the 

public airwaves and is narrowly tailored 

to advance the government’s substantial, 

and indeed compelling, interest in the 

protection and education of America’s 

children. 

Preemption 

16. Related to the issue of digital 

broadcasters’ educational and 

informational programming obligations 

under the CTA is the issue of how we 

will treat preemptions of core programs 

by DTV broadcasters. To qualify as 

‘‘core programming’’ for purposes of the 

three-hour-per-week processing 

guideline, the Commission requires that 

a children’s program be ‘‘regularly 

scheduled’’; that is, a core children’s 

program must ‘‘be scheduled to air at 

least once a week’’ and ‘‘must air on a 

regular basis.’’ In adopting the current 

educational programming rules, 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 

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 29

programming and what level of 

preemption is allowable.

17. We requested comment in the 

Notice on whether the Commission’s 

policies regarding preemption of core 

programs should be revised in view of 

the greater programming capacity that 

will be available to DTV broadcasters. 

We noted that the ability of DTV 

broadcasters to multicast provides them 

with the option of airing multiple 

streams of programming 

simultaneously, thus increasing their 

flexibility to either avoid preempting 

core programs or to reschedule such 

programs to a regular ‘‘second home.’’

Given this capability, we asked if we 

should fashion a rule defining clearly 

the requirement that a ‘‘core’’ program 

be ‘‘regularly scheduled,’’ including the 

number of times a core program could 

be preempted and still count toward the 

three-hour-per-week processing 

guideline, and the efforts that must be 

made to reschedule and promote 

preempted programs in order for these 

programs to contribute toward the core 

programming guideline. If we were to 

adopt such a rule, we asked if we 

should continue to exempt from the 

requirement that core programs be 

rescheduled core programs preempted 

for breaking news. We also sought 

comment on the kind of rescheduling 

practices and promotion of rescheduled 

programs that we could require from 

digital broadcasters. 

18. For both analog and digital 

broadcasters, to be considered core 

programming we will generally require 

that a preempted core program be 

rescheduled. In addition, we will 

consider, in determining whether the 

rescheduled program counts as a core 

educational program, the reason for the 

preemption, the licensee’s efforts to 

promote the rescheduled program, the 

time when the rescheduled program is 

broadcast, and, as discussed below, the 

station’s level of preemption of core 

programming. We will continue to 

exempt from the requirement that core 

programs be rescheduled core programs 

preempted for breaking news. Absent 

clear evidence that broadcasters are 

abusing this exemption, we intend to 

rely on broadcasters’ journalistic 

judgment regarding the necessity of 

interrupting scheduled core 

programming because of a news alert. 

19. As a general matter, for digital 

broadcasters we will not consider a core 

program moved to the same time slot on 

another of the station’s digital program 

streams to be preempted as long as the 

alternate program stream receives 

MVPD carriage comparable to the 

stream from which the program is being 

moved and the station provides 

adequate on-screen information about 

the move, including when and where 

the program will air, on both the 

original and the alternate program 

stream. This policy applies only to 

program moves from one digital stream 

to another digital stream on the same 

station. Thus, as long as viewers are 

adequately notified of the move and the 

program is moved to a program stream 

that is accessible to a comparable 

number of viewers, broadcasters may 

use their multicasting capability to 

avoid preempting core programming. 

20. For both analog and digital 

broadcasters, we will limit the number 

of preemptions under our processing 

guideline to no more than 10 percent of 

core programs in each calendar quarter. 

Each preemption beyond the 10 percent 

limit will cause that program not to 

count as core under the processing 

guideline, even if the program is 

rescheduled. We will exempt from this 

preemption limit preemptions for 

breaking news. 

21. We believe that this preemption 

limit will help parents and children to 

locate core programming and to 

anticipate when it will be aired. We 

believe that most stations currently do 

not preempt more than 10 percent of 

core programs in each calendar quarter. 

We also note that our processing 

guideline is averaged over a six-month 

period, which will provide broadcasters 

with some scheduling flexibility. In 

addition, a station that fails to meet the 

processing guideline because of 

excessive preemptions may still receive 

staff-level approval of its renewal 

application if it demonstrates that it has 

aired a package of educational and 

informational programming, including 

specials, PSAs, short-form programs, 

and regularly scheduled non-weekly 

programs with a significant purpose of 

educating and informing children, that 

demonstrates a commitment to 

educating and informing children at 

least equivalent to airing the amount of 

core programming indicated by the 

processing guideline. Licensees that do 

not qualify for staff level approval will 

have their license renewal applications 

referred to the Commission where they 

will have an additional opportunity to 

demonstrate compliance with the CTA. 

Identification of Core Programming 

22. As we stated in the NPRM, studies 

of the effectiveness of our educational 

programming requirements show a 

continued lack of awareness on the part 

of parents regarding the availability of 

core programming. As one study 

observed:

Information about E/I programs remains hard 

for parents to find. Although commercial 

broadcasters are consistently using E/I icons, 

the on-air information is often brief and 

difficult to identify. Printed listing services 

do not carry the information. * * * Thus, 

there is a serious lack of information for 

parents about core educational and 

informational offerings, mostly because the 

popular press does not appear to be 

interested in or have the capacity to publish 

such information. Not surprisingly, only one 

in seven parents is able to correctly identify 

the meaning of the E/I symbol.

23. As we noted when we adopted the 

current children’s educational 

programming rules in 1996, parents can 

increase the audience of an educational 

program by encouraging their children 

to watch the show, but can only do so 

if they know in advance when the show 

will air and that the show is 

educational. The public information 

initiatives adopted by the Commission 

in 1996 were designed to maximize 

public access to information about core 

programming while minimizing the cost 

to licensees. In adopting the current onair identification requirement, the 

Commission noted that on-air identifiers 

were likely to reach a larger audience 

than information published in program 

guides, at minimal cost to stations. We 

continue to believe that on-air 

identification of core programming is a 

cost-effective means of ensuring that 

core programming reaches the child 

audience, but agree with those 

commenters that argue that the use of 

different identifiers by different 

broadcasters is confusing parents and 

impairing their ability to choose core 

programming for their children. 

24. Accordingly, we will amend our 

rules regarding on-air identification of 

core programming to require both 

analog and digital broadcasters to 

identify such programming with the 

same symbol: E/I. We will also require 

that this symbol be displayed 

throughout the program in order for the 

program to qualify as core. We believe 

this change to our on-air identification 

requirement will not prove onerous to 

broadcasters, who already use on-screen 

identifiers for core programs, and could 

greatly improve the public’s ability to 

recognize and locate core programs. We 

note that broadcasters now display 

icons and other on-screen information 

with increasing frequency in many 

kinds of programming, and the public is 

increasingly used to seeing such 

information displayed along with 

program material. Broadcasters’

increasing voluntary use of onscreen 

identifiers, such as network logos, 

presumably reflects their judgment as to 

the effectiveness of this technique in 

communicating information. We believe 

that broadcasters can display the E/I 

30 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 

icon in an unobtrusive manner that will 

help parents and others identify core 

programs without deterring potential 

child viewers. 

25. We will apply this revised on-air 

identification requirement to both 

commercial and noncommercial 

broadcasters. Although we have 

previously exempted noncommercial 

licensees from the requirement that they 

identify core programming, we believe 

that requiring all broadcasters to use the 

E/I symbol throughout the program to 

identify core programming will help 

reinforce viewer awareness of the 

meaning of this symbol. We will, 

however, continue to exempt 

noncommercial television licensees 

from the other public information 

initiatives adopted in the 1996 

Children’s Programming Report and 

Order. Thus, noncommercial television 

stations will not be required to prepare 

and file quarterly Children’s Television 

Programming Reports or to provide 

information identifying programming 

specifically designed to educate and 

inform children to publishers of 

program guides. As is our current 

practice, we will require noncommercial 

broadcast stations to maintain 

documentation sufficient to show 

compliance with the CTA’s 

programming obligations at renewal 

time in response to a challenge or to 

specific complaints.

Commercial Limits 

Application of Existing Commercial 

Limits Rules and Policies to DTV 

26. We sought comment in the Notice 

on how the limits on the amount of 

commercial matter in children’s 

programming should apply in the digital 

environment and how we should 

interpret with respect to DTV 

broadcasters the policies set forth in the 

1974 Policy Statement on children’s 

programming. We asked whether 

children’s advertising limits and 

policies should apply only to free overthe-air channels, or to all digital 

channels, both fee and pay. We sought 

comment specifically on the proposal by 

CME, et al. that the Commission 

prohibit all direct links to commercial 

Web sites during children’s 

programming. If we were to permit 

certain kinds of commercial links 

during children’s programs, we asked if 

such links should be permitted to 

appear during the program itself, or be 

limited to appearing during 

commercials adequately separated from 

program material as required by our 

separations policy. 

27. We will apply the commercial 

limits and policies, as clarified in 

today’s Order, to all digital video 

programming directed to children ages 

12 and under, whether that 

programming is aired on a free or pay 

digital stream. We note that the 

commercial limits and policies 

currently apply to cable operators and 

DBS providers and that cable operators 

are defined as ‘‘broadcast licensees’’ for 

purposes of the commercial matter 

limitations in the CTA. Therefore, the 

application of such limits and policies 

to pay broadcast channels provides for 

consistent treatment of these program 

delivery systems for purposes of 

children’s advertising restrictions. We 

agree with those commenters that argue 

that the same concerns that led to 

adoption of the advertising restrictions 

in the 1974 Policy Statement and the 

CTA—the unique vulnerability of 

children as television viewers—apply 

regardless of the channel that a child 

viewer watches. Thus, any advertising 

restrictions for children’s programming 

should apply to all such programming, 

regardless of the free or pay status of the 

channel. This determination is both 

consistent with and required by Section 

336 of the Communications Act, which 

states that the Commission ‘‘shall adopt 

regulations that allow the holders of 

[DTV] licenses to offer such ancillary 

and supplementary services on 

designated frequencies as may be 

consistent with the public interest, 

convenience and necessity.’’ Providing 

programs intended for children that do 

not comply with the advertising limits 

or commercial policies is contrary to the 

public interest because they could 

expose children to excessive and 

abusive advertising practices. 

28. We are aware that some 

broadcasters are currently displaying 

Internet Web site addresses that appear 

during children’s program material (for 

example, in a crawl at the bottom of 

screen) which raises the issue of how 

the CTA commercial time limits should 

apply. We are concerned that the 

display of such addresses for Web sites 

established solely for commercial 

purposes in children’s programs is 

inconsistent with our mandate under 

the CTA to protect children, who are 

particularly vulnerable to commercial 

messages and incapable of 

distinguishing advertising from program 

material. This is a concern that arises 

with respect to all broadcasters, both 

analog and digital, and to cable 

operators. Accordingly, we adopt a 

proposal similar to that advanced by 

Sesame Workshop with respect to this 

display of commercial Web site 

information in children’s programs. 

Specifically, we will interpret the CTA 

commercial time limits to require that, 

with respect to programs directed to 

children ages 12 and under, the display 

of Internet Web site addresses during 

program material is permitted as within 

the CTA limitations only if the Web site: 

(1) Offers a substantial amount of bona 

fide program-related or other 

noncommercial content; (2) is not 

primarily intended for commercial 

purposes, including either e-commerce 

or advertising; (3) the Web site’s home 

page and other menu pages are clearly 

labeled to distinguish the 

noncommercial from the commercial 

sections; and (4) the page of the Web 

site to which viewers are directed by the 

Web site address is not used for ecommerce, advertising, or other 

commercial purposes (e.g., contains no 

links labeled ‘‘store’’ and no links to 

another page with commercial material). 

29. For Web sites meeting these 

requirements, we will not limit the 

amount of time that the Web site 

address may be displayed during 

children’s programs. In addition, we 

will permit the commercial portions of 

Web sites that comply with these 

requirements to sell or advertise 

products associated with the related 

television program. Because we require 

that permissible Web sites clearly 

separate the commercial portions of the 

site from the site’s other content, we 

believe that children will be adequately 

protected from program-related 

merchandise sales. Because of the 

unique vulnerability of young children 

to host-selling, however, we will 

prohibit the display of Web site 

addresses in children’s programs when 

the site uses characters from the 

program to sell products or services. 

This restriction on Web sites that use 

host-selling applies to Web site 

addresses displayed both during 

program material and during 

commercial material. We do not impose 

other restrictions at this time on the use 

of Web site addresses displayed only 

during commercials aired in children’s 

programs. 

30. We believe that this approach to 

the display of Web site addresses in 

programs directed to children ages 12 

and under fairly balances the interest of 

all broadcasters in exploring the 

potential uses of the Internet in 

connection with their children’s 

programs with our mandate to protect 

children from over commercialization. 

We will require a broadcaster that 

chooses to air children’s programs 

displaying Web site addresses during 

program material to certify, as part of its 

certification in its license renewal 

application of compliance with the 

commercial limits on children’s 

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 31

programming, that it has also complied 

with the requirements concerning the 

display of Web site addresses in such 

programming. In addition, these 

broadcasters will be required to 

maintain in their public inspection file, 

until final action has been taken on the 

station’s next license renewal 

application, records sufficient to 

substantiate the station’s certification of 

compliance with the restrictions on Web 

site addresses in programs directed to 

children ages 12 and under. Cable 

operators airing children’s programming 

must maintain records sufficient to 

verify compliance with these new rules 

and make such records available to the 

public. Such records must be 

maintained by cable operators for a 

period sufficient to cover the limitations 

period specified in 47 U.S.C. 

503(b)(6)(B). 

31. With respect to the appearance of 

direct, interactive, links to commercial 

Internet sites in children’s 

programming, we agree with those 

commenters that express concern that 

prohibiting such links at least at this 

stage in the digital transition is 

premature and unnecessary and could 

hamper the ability of broadcasters to 

experiment with potential uses of 

interactive capability in children’s 

programming. There is little if any use 

of direct Internet connectivity today in 

television programming of the type that 

was contemplated when the Notice in 

this proceeding was issued. 

Accordingly, we find that it would be 

premature and unduly speculative to 

attempt to regulate such direct 

connectivity at this time. We agree that 

direct links to Web sites with programrelated material could provide 

beneficial educational and 

informational content in children’s 

programs and do not wish to place 

unnecessary barriers in the way of 

technical developments in this area that 

may take place.

32. We encourage broadcasters to 

experiment with the capabilities digital 

television offers by developing 

interactive services that can be used to 

enhance the educational value of 

children’s programming. With the 

benefits of interactivity, however, come 

potential risks that children will be 

exposed to additional commercial 

influences. We therefore seek comment 

in the Further Notice of Proposed 

Rulemaking that is part of this Report 

and Order about what kinds of services 

broadcasters and cable operators are 

developing and what rules would be 

appropriate to adopt. During the 

pendancy of this proceeding, however, 

we emphasize that broadcasters and 

cable operators may not circumvent our 

rules on commercial limits through 

technological developments in 

interactivity. We encourage broadcasters 

and cable operators to innovate and 

experiment with new uses of interactive 

technology that is educational in nature. 

Definition of Commercial Matter 

33. The Notice also invited 

commenters to address a broader 

question related to our restriction on the 

duration of advertising during 

children’s programming. This issue 

arises with respect to both analog and 

digital programming. We noted that, 

under our current policy, the limitation 

of 10.5 minutes per hour on weekends 

and 12 minutes per hour on weekdays 

applies to ‘‘commercial matter.’’

‘‘Commercial matter’’ is defined to 

exclude certain types of program 

interruptions from counting toward the 

commercial limits, including 

promotions of upcoming programs that 

do not mention sponsors, public service 

messages promoting not-for-profit 

activities, and air-time sold for purposes 

of presenting educational and 

informational material. We observed in 

the Notice that there is a significant 

amount of time devoted to these types 

of announcements in children’s 

programming, thereby often reducing 

the amount of time devoted to actual 

program material to an amount far less 

than the limitation on the duration of 

commercial matter alone might suggest. 

34. Accordingly, we invited comment 

in the Notice on whether the 

Commission should revise its definition 

of ‘‘commercial matter’’ to include some 

or all of these types of program 

interruptions that do not currently 

contribute toward the commercial 

limits. We noted that some of the types 

of program interruptions currently 

excluded from the commercial limits 

may contain information valuable to 

children, such as promotion of 

upcoming educational programs or 

certain types of public service messages. 

We asked if we should nonetheless 

require that the time devoted to these 

announcements count toward the 

commercial limits to maximize the 

amount of time devoted to program 

material and reduce the time taken by 

interruptions. We also asked whether, if 

we were to revise our definition of 

‘‘commercial matter,’’ we should apply 

the new definition only to digital 

broadcasting or also to analog 

broadcasting. Finally, we asked 

commenters to address whether our 

ability to revise this definition is 

restricted by the CTA and its legislative 

history. 

35. We will revise our definition of 

‘‘commercial matter’’ to include 

promotions of television programs or 

video programming services other than 

children’s educational and 

informational programming. This 

revised definition will apply to analog 

and digital television stations and to 

cable operators. In the Further Notice of 

Proposed Rulemaking that is part of this 

Report and Order, we also propose to 

apply this revised definition to Direct 

Broadcast Satellite service providers. 

Our goals in making this revision to the 

definition of commercial matter are to 

reduce the number of commercial 

interruptions in children’s programming 

and encourage the promotion of 

educational and informational 

programming for children. 

36. We agree with those commenters 

who argue that program promotions 

should fall within the scope of 

commercial matter because the station 

broadcasting the promotion receives 

significant consideration for airing these 

advertisements: specifically, the 

increased audiences for the promoted 

program which presumably leads to 

increased advertising rates for the 

station. Reducing the number of 

program promotions will help protect 

children from overcommercialization of 

programming consistent with the overall 

intent of Congress in the CTA. At the 

same time, exempting program 

promotions for children’s educational 

and informational programming may 

encourage broadcasters to promote this 

programming, thereby increasing 

parents’ awareness of the programming 

and possibly the program’s audience, 

and thus extending the educational 

benefit of the programming. As noted 

above, there is evidence of a continued 

lack of awareness on the part of parents 

regarding the availability of core 

programming. Our action may lead to 

additional promotion of children’s 

educational and informational 

programming, including core 

programming, thereby helping to 

address this problem. 

37. This decision is consistent with 

the CTA and its legislative history. The 

term ‘‘commercial matter’’ is not 

defined in the CTA. The House and 

Senate Reports state that the definition 

should be ‘‘consistent’’ with the 

definition used in former Form 303–C, 

which defined commercial matter to 

include, among other things, 

promotional announcements by 

commercial stations for or on behalf of 

another commonly owned or controlled 

broadcast station serving the same 

community. Including program 

promotions in the definition of 

commercial matter is consistent with 

this aspect of the definition of 

commercial matter on former Form 303–

32 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 

C, as in either case the station is 

receiving indirect consideration for the 

program promotion. 

Inappropriate Promotions in Children’s 

Programming 

38. Another issue raised both in the 

Notice and in the NOI relates to the 

airing, in programs viewed by children, 

of promotions for other upcoming 

programs that may be unsuitable for 

children to watch because either the 

promotions themselves or the programs 

they refer to contain sexual or violent 

content or inappropriate language. This 

issue arises with respect to both analog 

and digital broadcasting and applies not 

only to educational and informational 

children’s programming but to any 

programming that is viewed by a 

substantial number of children. We 

sought comment in the Notice on steps 

the Commission could take to ensure 

that programs designed for children or 

families do not contain promotions that 

are unsuitable for children to watch. We 

noted that the broadcast, cable, and 

motion picture industries voluntarily 

rate video programming that contains 

sexual, violent, or other indecent 

material and broadcast signals 

containing these ratings so that these 

programs can be screened by ‘‘V-Chip’’

technology available in television sets. 

The ratings identify the age group for 

which a particular program is suitable 

and indicate when the program contains 

violence, sexual content, or suggestive 

or coarse language. We asked in the 

Notice whether the ratings of programs 

promoted by broadcasters should be 

consistent with the ratings of the 

program during which the promotions 

run. We also asked whether we should 

require that promotions themselves be 

rated and encoded so they can be 

screened by V-Chip technology, or that 

promotions be rated and that programs 

with a significant child audience 

contain only promotions consistent with 

the rating of the program in which they 

appear.

39. In light of the consensus among 

commenters that voluntary efforts rather 

than Commission action are preferable 

to ensure that age-inappropriate 

promotions are not aired in children’s 

programs, we will not take action on 

this issue at this time. Instead, we urge 

broadcasters to ensure that industry 

mechanisms are in place and are used 

effectively to prevent the airing of 

promotions in children’s programs that 

are inappropriate for child viewing. We 

also urge the public to continue to 

monitor promotions aired in children’s 

programming and to notify us of 

instances in which broadcasters air ageinappropriate promotions. If we receive 

information suggesting that ageinappropriate promotions have become 

a systemic problem, we will revisit this 

issue. 

40. We agree with those commenters 

that argue that DTV technical standards 

should not foreclose the implementation 

of changes to or improvements in the VChip system. We also believe that DTV 

technical standards should not foreclose 

the option of using V-Chip technology 

to support multiple rating systems. In 

our Report and Order in the Second 

Periodic Review of the Commission’s 

Rules and Policies Affecting the 

Conversion to Digital Television, we 

adopted rules to ensure that V-Chip 

functionality is available in the digital 

world. In that proceeding, we stated our 

belief that the ability to modify the 

content advisory rating system is 

beneficial and required that television 

receivers be able to process new ratings 

should they be developed. We also 

adopted standards that do not preclude 

manufacturers from incorporating 

additional blocking standards or 

techniques into receivers, thereby 

permitting manufacturers to develop VChip technology that can be used in 

conjunction with additional ratings 

systems. 

41. We will not at this time adopt the 

other V-Chip proposals advanced by 

commenters. Nonetheless, we encourage 

broadcasters to consider various ways of 

improving V-Chip utility, including 

making available in their programming 

a link to a Web site where parents and 

other viewers can get additional 

information about program ratings and 

the V-Chip, once such technology or 

functionality is available to consumers. 

We also encourage the broadcast, cable, 

and motion picture industries to 

consider whether any revisions to the 

ratings system would make it more 

accurate and easier to understand. 

42. In our next periodic review of the 

status of the digital transition, we plan 

to address whether we should require 

digital broadcasters to embed E/I 

information in the core program stream 

so that this information can be sought 

by V-Chip or other technology. Given 

the lack of information in the record of 

this proceeding about how this 

information would be used and the 

potential benefits of this technology in 

helping parents locate core 

programming, and the potential costs 

such a requirement would impose, we 

do not address this issue today. 

Future Proceedings 

43. We intend to revisit the issues 

addressed in this item in the next three 

years and consider whether the 

determinations made herein should be 

changed in light of technological 

developments. In particular, we will 

consider whether broadcasters should 

be given more flexibility to determine 

the program stream on which core 

programming is placed. 

44. In addition, we intend to issue a 

Public Notice in the near future seeking 

comment on whether broadcasters are 

complying with the letter and intent of 

the CTA in terms of, among other 

things, the amount and quality of core 

children’s programming being provided 

and the extent of preemption of such 

programming. The Commission staff 

also intends to conduct a review of 

broadcaster compliance with the CTA 

and our rules and to issue a report on 

the results of this review and the 

comments filed in response to the 

Public Notice. The Commission last 

issued a report on compliance with the 

CTA in 2001. The Commission plans to 

conduct similar reviews and issue 

similar reports on a regular basis 

roughly every three years. 

Effective Dates and Transition Period 

45. Our revised policies and rules 

regarding application of the commercial 

limits and policies to digital 

programming as well as those regarding 

the display of Internet addresses in 

analog and digital programming and in 

programming aired by cable operators, 

will become effective February 1, 2005. 

We will begin to evaluate compliance 

with these requirements in renewal 

applications filed after that date. Thus, 

the first renewal applications to which 

these new requirements will be applied 

are those required to be filed by April 

1, 2005, by television stations located in 

the states of Indiana, Kentucky, and 

Tennessee. Licensee performance 

during any portion of the renewal term 

that predates February 1, 2005, will be 

evaluated under the current rules and 

policies and performance that post-dates 

the rules will be judged under the new 

provisions. 

46. Our rules regarding on-air 

identification of core programming will 

become effective after approval by the 

Office of Management and Budget 

(‘‘OMB’’) under the Paperwork 

Reduction Act of 1995 (‘‘PRA’’). Upon 

OMB approval, we will issue a Public 

Notice announcing the effective date of 

this rule. The effective date will be no 

earlier than February 1, 2005. Similarly, 

we will issue a Public Notice 

announcing when the revised FCC Form 

398, also subject to OMB approval 

under the PRA, will be available for use 

by licensees and when licensees must 

commence using the revised form to 

report digital core programming. 

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 33

1See 5 U.S.C. § 604.

47. Our revised definition of 

commercial matter will become effective 

January 1, 2006. This transition period 

will give programmers time to produce 

sufficient children’s programming and 

other material to include within 

children’s programming that would not 

be considered commercial matter. 

Similarly, our revised safe harbor 

processing guideline for digital 

broadcasters will become effective 

January 1, 2006. The limit on the 

number of preemptions for digital 

broadcasters under our processing 

guideline to no more than 10 percent of 

core programs in each calendar quarter 

and the limit for digital broadcasters on 

the number of repeats of core 

programming to no more than 50 

percent of core programming during the 

same week will also become effective 

January 1, 2006. These requirements 

relate to the calculation of hours of core 

programming under our revised 

guideline and therefore should become 

effective at the same time as the revised 

guideline. In addition, to give analog 

broadcasters time to come into 

compliance with our rule limiting the 

number of preemptions under the 

current analog processing guideline to 

no more than 10 percent of core 

programs in each calendar quarter, we 

will also delay the effective date of that 

rule as applied to analog broadcasters 

until January 1, 2006. We believe that 

this transition period is appropriate to 

give licensees time to develop 

programming or to renegotiate or allow 

expiration of existing program contracts 

as necessary. Renewal applications filed 

earlier than January 1, 2006, will be 

evaluated for compliance with the CTA 

based on our current rules and the 

policies expressed in the 1996 

Children’s Programming Report and 

Order and the 1991 Report and Order, 

as modified upon reconsideration. 

License renewal applications filed after 

January 1, 2006, will be evaluated to 

determine whether broadcasters are 

providing core programming using the 

revised definition of commercial matter 

and processing guideline adopted 

herein and are complying with the 

revised rules concerning preemption 

and repeats of core programming. Thus, 

the first renewal applications to which 

these new requirements will be applied 

are those required to be filed by 

February 1, 2006, by stations located in 

the states of Kansas, Nebraska, and 

Oklahoma. Licensee performance during 

any portion of the renewal term that 

predates January 1, 2006, will be 

evaluated under the current rules and 

policies and performance that post-dates 

the new rules will be judged under the 

new provisions.

Conclusion 

48. We adopt this Report and Order 

and Further Notice of Proposed Rule 

Making to address the obligation of DTV 

broadcasters under the CTA to air 

educational programming for children 

and to protect children from excessive 

and inappropriate commercial 

messages. Our goals are to ensure that 

parents and children benefit from 

broadcasters’ use of digital technology 

to provide multiple broadcast streams 

and to permit broadcasters flexibility to 

explore the potential uses of the 

broadcast spectrum made possible by 

digital technology, including the use of 

direct Web site links in children’s 

programming, consistent with the 

mandate of the CTA. We believe that the 

rules and policies adopted herein 

further the mandate of the CTA that 

broadcast television fulfill its potential 

to teach the nation’s children and that 

broadcasters protect children from over 

commercialization. 

VII. Administrative Matters 

49. This Report and Order contains 

new or modified information 

collection(s) subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. It will be submitted to the 

Office of Management and Budget 

(OMB) for review under Section 3507(d) 

of the PRA. OMB, the general public, 

and other Federal agencies are invited to 

comment on the new or modified 

information collection(s) contained in 

this proceeding. Written comments by 

the public on the proposed new and 

modified information collection(s) are 

due 60 days from date of publication of 

this Report and Order in the Federal 

Register. In addition to filing comments 

with the Secretary, a copy of any 

comments on the information 

collection(s) contained herein should be 

submitted to Cathy Williams, Federal 

Communications Commission, Room 1–

C823, 445 12th Street, SW., Washington, 

DC 20554, or via the Internet to Cathy 

Williams@fcc.gov, and to Kristy L. 

LaLonde, OMB Desk Officer, Room 

10234 NEOB, 725 17th Street, NW., 

Washington, DC 20503, or via the 

Internet to KristyL. 

LaLonde@omb.eop.gov, or via fax at 

202–395–5167. 

50. As required by the Regulatory 

Flexibility Act,1 the Commission has 

prepared a Final Regulatory Flexibility 

Analysis (‘‘FRFA’’) relating to this 

Report and Order. The FRFA is set forth 

below.

51. The Commission will send a copy 

of the Report and Order in a report to 

be sent to Congress and the General 

Accounting Office pursuant to the 

Congressional Review Act, see 5 U.S.C. 

801(a)(1)(A). 

52. For additional information on this 

proceeding, please contact Kim 

Matthews, Policy Division, Media 

Bureau at (202) 418–2154. 

Final Regulatory Flexability Analysis 

53. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(‘‘RFA’’), an Initial Regulatory 

Flexibility Analysis (‘‘IRFA’’) was 

incorporated in the Notice of Proposed 

Rule Making (‘‘NPRM’’). The 

Commission sought written public 

comment on the proposals in the Notice, 

including comment on the IRFA. One 

comment was received on the IRFA. 

This Final Regulatory Flexibility 

Analysis (‘‘FRFA’’) conforms to the 

RFA. 

I. Need for, and Objectives of, the Report 

and Order 

The purpose of this proceeding is to 

determine how the existing children’s 

educational television programming 

obligations and limitations on 

advertising in children’s programs 

should be interpreted and adapted to 

apply to digital television broadcasting 

in light of the new capabilities made 

possible by that technology. First, we 

address the obligation of digital 

television (‘‘DTV’’) broadcasters to 

provide children’s educational and 

informational programming and, 

specifically, how that obligation applies 

to DTV broadcasters that use the 

multicast capability of their ATSC 

digital service to broadcast multiple 

program services. We adopt an approach 

pursuant to which digital broadcasters 

that choose to provide streams or hours 

of free video programming in addition 

to their required free over-the-air video 

program service will have an increased 

core programming benchmark roughly 

proportional to the additional amount of 

free video programming they choose to 

provide. Second, for both analog and 

digital broadcasters, we limit the 

number of preemptions allowed under 

our processing guideline to no more 

than 10 percent of core programs in 

each calendar quarter. Third, we amend 

our rule regarding on-air identification 

of core programming to require both 

analog and digital broadcasters to 

identify such programming with the 

same symbol, E/I, which must be 

displayed throughout the program in 

order for the program to qualify as core 

34 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 

educational programming. Fourth, we 

clarify that the children’s television 

commercial limits and policies apply to 

all digital video programming directed 

to children ages 12 and under. Fifth, we 

interpret the commercial time limits to 

require that the display of Internet Web 

site addresses during program material 

is permitted as within the time limits 

only if the Web site meets certain 

requirements, including the requirement 

that it offer a substantial amount of bona 

fide program-related or other 

noncommercial content and is not 

primarily intended for commercial 

purposes. Sixth, we revise our 

definition of ‘‘commercial matter’’ to 

include promotions of television 

programs or video programming 

services other than children’s 

educational and informational 

programming. Finally, we seek 

comment on several additional 

proposals concerning the children’s 

programming commercial limits and 

indicate our intention to issue a Public 

Notice in the near future seeking 

comment on broadcaster compliance 

with the Children’s Television Act of 

1990 (‘‘CTA’’). Our objectives in 

resolving these issues are to provide 

television broadcasters with guidance 

regarding their obligation to serve 

children as we transition from an analog 

to a digital television environment and 

to improve our children’s programming 

rules and policies.

II. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

The U.S. Small Business 

Administration (‘‘SBA’’) filed the only 

comment in this proceeding responding 

to the IRFA. According to the SBA, the 

IRFA does not satisfy the requirements 

of the RFA, as it does not describe many 

of the ‘‘compliance requirements’’

contained in the NPRM and their impact 

on small firms. The SBA also argues that 

the IRFA does not discuss significant 

alternatives that would accomplish the 

objectives while minimizing the 

significant economic impact on small 

entities. SBA states that it does not 

question the Commission’s goals in this 

proceeding, but instead asks that the 

Commission seek ways to minimize the 

burdens on small business while still 

accomplishing its goals. 

The NPRM described a number of 

possible ways of applying the current 

core programming processing guideline 

to digital broadcasters. These proposals 

were suggested by commenters 

responding to the NOI in this docket. It 

was not possible for the Commission to 

develop detailed estimates of the cost of 

adopting each of these proposals 

because the details of how any of the 

proposals would be implemented were 

not known. The NPRM sought comment 

on these various proposals in large part 

to determine, in the view of 

broadcasters and others, which would 

be the preferable means of adapting our 

current rules. Commenters responding 

to the NPRM address, among other 

issues, the cost of the various proposals 

and the advantages, from cost and other 

perspectives, of the approach they 

advocate. In determining what approach 

to adopt, the Commission carefully 

considered all of the comments, 

particularly those offering less 

burdensome means of accomplishing 

our stated objectives. The approach 

adopted in the Report and Order 

attempts to balance the need to adapt 

our current rules to the digital 

environment and to improve our 

children’s programming rules and 

policies with the need to minimize costs 

where possible and provide 

broadcasters with flexibility to continue 

to explore different ways of employing 

digital technology. 

III. Description and Estimate of the 

Number of Small Entities to Which the 

Rules Will 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. The 

RFA generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction’’ under section 3 of the 

Small Business Act. In addition, the 

term ‘‘small business’’ has the same 

meaning as the term ‘‘small business 

concern’’ under the Small Business Act. 

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. 

Television Broadcasting. The Small 

Business Administration defines a 

television broadcasting station that has 

no more than $12 million in annual 

receipts as a small business. Business 

concerns included in this industry are 

those ‘‘primarily engaged in 

broadcasting images together with 

sound.’’ According to Commission staff 

review of the BIA Publications, Inc. 

Master Access Television Analyzer 

Database as of May 16, 2003, about 814 

of the 1,220 commercial television 

stations in the United States have 

revenues of $12 million or less. We 

note, however, that, in assessing 

whether a business concern qualifies as 

small under the above definition, 

business (control) affiliations must be 

included. Our estimate, therefore, likely 

overstates the number of small entities 

that might be affected by our action, 

because the revenue figure on which it 

is based does not include or aggregate 

revenues from affiliated companies. 

In addition, an element of the 

definition of ‘‘small business’’ is that the 

entity not be dominant in its field of 

operation. We are unable at this time to 

define or quantify the criteria that 

would establish whether a specific 

television station is dominant in its field 

of operation. Accordingly, the estimate 

of small businesses to which rules may 

apply do not exclude any television 

station from the definition of a small 

business on this basis and are therefore 

over-inclusive to that extent. Also as 

noted, an additional element of the 

definition of ‘‘small business’’ is that the 

entity must be independently owned 

and operated. We note that it is difficult 

at times to assess these criteria in the 

context of media entities and our 

estimates of small businesses to which 

they apply may be over-inclusive to this 

extent. 

There are also 380 non-commercial 

TV stations in the BIA database. Since 

these stations do not receive advertising 

revenue, there are no revenue estimates 

for these stations. We believe that 

virtually all of these stations would be 

considered ‘‘small businesses’’ given 

that they are generally owned by noncommercial entities including local 

schools and governments and, for the 

most part, rely on public donations and 

funding.

Cable Operators. The SBA has 

developed a small business size 

standard for cable and other program 

distribution services, which includes all 

such companies generating $12.5 

million or less in revenue annually. The 

Commission has developed, with SBA’s 

approval, our own definition of a small 

cable system operator for the purposes 

of rate regulation. Under the 

Commission’s rules, a ‘‘small cable 

company’’ is one serving fewer than 

400,000 subscribers nationwide. We last 

estimated that there were 1,439 cable 

operators that qualified as small cable 

companies. Since then, some of those 

companies may have grown to serve 

over 400,000 subscribers, and others 

may have been involved in transactions 

that caused them to be combined with 

other cable operators. Consequently, we 

estimate that there are fewer than 1,439 

small entity cable system operators that 

may be affected by the decisions and 

rules in this Report and Order. 

The Communications Act, as 

amended, also contains a size standard 

for a small cable system operator, which 

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 35

is ‘‘a cable operator that, directly or 

through an affiliate, serves in the 

aggregate fewer than 1% of all 

subscribers in the United States and is 

not affiliated with any entity or entities 

whose gross annual revenues in the 

aggregate exceed $250,000,000.’’ The 

Commission has determined that there 

are 68,500,000 subscribers in the United 

States. Therefore, an operator serving 

fewer than 685,000 subscribers shall be 

deemed a small operator if its annual 

revenues, when combined with the total 

annual revenues of all of its affiliates, do 

not exceed $250 million in the 

aggregate. Based on available data, we 

find that the number of cable operators 

serving 685,000 subscribers or less totals 

approximately 1,450. Although it seems 

certain that some of these cable system 

operators are affiliated with entities 

whose gross annual revenues exceed 

$250,000,000, we are unable at this time 

to estimate with greater precision the 

number of cable system operators that 

would qualify as small cable operators 

under the definition in the 

Communications Act. 

IV. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

The Order adopts a revised core 

children’s programming processing 

guideline for digital television 

broadcasters. Our revised guideline will 

work as follows. Digital broadcasters 

providing only one stream of free digital 

video programming will continue to be 

subject to the existing 3 hours per week 

core programming processing guideline. 

DTV broadcasters that choose to provide 

additional streams or channels of free 

video programming will, in addition, 

have the following guideline applied to 

the additional programming: 1⁄2 hour 

per week of additional core 

programming for every increment of 1 to 

28 hours of free video programming 

provided in addition to the main 

program stream. Thus, digital 

broadcasters providing between 1 and 

28 hours per week of free video 

programming in addition to their main 

program stream will have a guideline of 

1⁄2 hour per week of core programming 

in addition to the 3 hours per week on 

the main program stream. Digital 

broadcasters providing between 29 and 

56 hours per week of free video 

programming in addition to their main 

program stream will have a guideline of 

1 hour per week of core programming in 

addition to the 3 hours per week on the 

main program stream. Digital 

broadcasters providing between 57 and 

84 hours per week of free video 

programming in addition to their main 

program stream will have a guideline of 

11⁄2 hours per week of core 

programming in addition to the 3 hours 

per week on the main program stream. 

The guideline will continue to increase 

in this manner for additional hours of 

free video programming. In addition, for 

digital broadcasters, we will require that 

at least 50 percent of core programming 

not be repeated during the same week 

to qualify as core. 

The revised guideline discussed 

above applies to digital broadcasters and 

the digital programming they provide. 

Up until the time that analog channels 

are returned to the Commission, we will 

continue to apply our current 3 hours 

per week core children’s programming 

processing guideline to analog channels. 

Broadcasters will continue to file, on a 

quarterly basis, their Children’s 

Television Programming Report, on FCC 

Form 398. We will revise current FCC 

Form 398 to permit broadcasters to 

report both analog and digital core 

programming on that form. Once the 

new form has been approved for use, we 

will issue a public notice informing 

broadcasters of the availability of the 

form and the date on which the revised 

form must begin to be used in place of 

the current form. On that date, reports 

will also be required to include 

information about digital core 

programming. As we have done in the 

analog context, we will continue to 

exempt noncommercial television 

licensees from children’s programming 

reporting requirements with respect to 

their digital programming. 

As a general matter, for digital 

broadcasters we will not consider a core 

program moved to the same time slot on 

another of the station’s digital program 

streams to be preempted as long as the 

alternate program stream receives 

MVPD carriage comparable to the 

stream from which the program is being 

moved and the station provides 

adequate on-screen information about 

the move, including when and where 

the program will air, on both the 

original and the alternate program 

stream. Thus, as long as viewers are 

adequately notified of the move and the 

program is moved to a program stream 

that is accessible to a comparable 

number of viewers, broadcasters may 

use their multicasting capability to 

avoid preempting core programming. 

For both analog and digital broadcasters, 

however, we will limit the number of 

preemptions under our processing 

guideline to no more than 10 percent of 

core programs in each calendar quarter. 

Each preemption beyond the 10 percent 

limit will cause that program not to 

count as core under the processing 

guideline, even if the program is 

rescheduled. We will exempt from this 

preemption limit preemptions for 

breaking news. 

In addition, the item amends our rules 

regarding on-air identification of core 

programming to require both analog and 

digital broadcasters to identify such 

programming with the same symbol: E/

I. We will also require that this symbol 

be displayed throughout the program in 

order for the program to qualify as core. 

We will apply this revised on-air 

identification requirement to both 

commercial and noncommercial 

broadcasters. 

The item applies the commercial 

limits and policies to all digital video 

programming directed to children ages 

12 and under, whether that 

programming is aired on a free or pay 

digital stream. In addition, we interpret 

the CTA commercial time limits to 

require that, for both analog and digital 

broadcasters, with respect to programs 

directed to children ages 12 and under, 

the display of Internet Web site 

addresses during program material is 

permitted as within the CTA limitations 

only if the Web site: (1) Offers a 

substantial amount of bona fide 

program-related or other noncommercial 

content; (2) is not primarily intended for 

commercial purposes, including either 

e-commerce or advertising; (3) the Web 

site’s home page and other menu pages 

are clearly labeled to distinguish the 

noncommercial from the commercial 

sections; and (4) the page of the Web 

site to which viewers are directed by the 

Web site address is not used for ecommerce, advertising, or other 

commercial purposes (e.g., contains no 

links labeled ‘‘store’’ and no links to 

another page with commercial material). 

Finally, the item also revises our 

definition of ‘‘commercial matter’’ to 

include promotions of television 

programs or video programming 

services other than children’s 

educational and informational 

programming. 

V. Steps Taken To Minimize Significant 

Economic Impact on Small Entities and 

Significant Alternatives Considered 

Several steps were taken to minimize 

significant impact on small entities. For 

the many broadcasters simulcasting the 

core programming offered on their 

analog channel on a single digital 

program stream and offering no other 

digital free video programming, 

compliance with the new processing 

guideline should be automatic, as the 

digital stream will simulcast the core 

programming aired on the analog stream 

and the current 3 hours/week guideline 

will apply to both streams. For 

broadcasters choosing to provide 

additional streams of digital free video 

36 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 

programming, the revised guideline 

establishes a series of graduated 

benchmarks which increase the core 

programming obligation in relation to 

the number of hours of additional free 

video programming offered by the 

licensee. Thus, only those stations 

choosing to provide additional free 

video programming are subject to the 

revised processing guideline. We 

rejected the ‘‘pay or play’’ and ‘‘menu’’

alternatives to the revised guideline 

largely because these approaches were 

more administratively burdensome to 

stations. Under the current and revised 

guideline, stations have and will 

continue to have the option of 

sponsoring core programming on other 

stations in the market.

In addition, for digital broadcasters 

we require under the new processing 

guideline that at least 50 percent of core 

programming not be repeated during the 

same week to qualify as core. However, 

we exempt from this requirement any 

program stream that merely time shifts 

the entire programming line-up of 

another program stream. Also, during 

the transition, we will not count as 

repeated programming core programs 

that are aired on both the analog station 

and a digital program stream. 

For both analog and digital 

broadcasters, however, the item limits 

the number of preemptions under our 

processing guideline to no more than 10 

percent of core programs in each 

calendar quarter. We exempt from this 

preemption limit preemptions for 

breaking news, however. We believe 

that most stations currently do not 

preempt more than 10 percent of core 

programs in each calendar quarter. We 

also note that our processing guideline 

is averaged over a six-month period, 

which will provide broadcasters with 

some scheduling flexibility. In addition, 

a station that fails to meet the 

processing guideline because of 

excessive preemptions may still receive 

staff-level approval of its renewal 

application if it demonstrates that it has 

aired a package of educational and 

informational programming, including 

specials, PSAs, short-form programs, 

and regularly scheduled non-weekly 

programs with a significant purpose of 

educating and informing children, that 

demonstrates a commitment to 

educating and informing children at 

least equivalent to airing the amount of 

core programming indicated by the 

processing guideline. Licensees that do 

not qualify for staff level approval will 

have their license renewal applications 

referred to the Commission where they 

will have an additional opportunity to 

demonstrate compliance with the CTA. 

Although we have previously 

exempted noncommercial licensees 

from the requirement that they identify 

core programming, we believe that 

requiring all broadcasters to use the E/

I symbol throughout the program to 

identify core programming will help 

reinforce viewer awareness of the 

meaning of this symbol. We will, 

however, continue to exempt 

noncommercial television licensees 

from the other public information 

initiatives adopted in the 1996 

Children’s Programming Report and 

Order. Thus, noncommercial television 

stations will not be required to prepare 

and file quarterly Children’s Television 

Programming Reports or to provide 

information identifying programming 

specifically designed to educate and 

inform children to publishers of 

program guides. As is our current 

practice, we will require noncommercial 

broadcast stations to maintain 

documentation sufficient to show 

compliance with the CTA’s 

programming obligations at renewal 

time in response to a challenge or to 

specific complaints. We also decline to 

require licensees to use high definition, 

interactivity, or other features to 

enhance core programming. 

Although the Order limits the display 

in children’s programming of Internet 

Web site addresses to sites established 

solely for commercial purposes, it does 

not prohibit the display of all Web site 

addresses. In addition, the item does not 

prohibit direct Internet links in 

children’s programs as several 

commenters advocated. This approach 

was adopted in an attempt to balance 

the interest of digital broadcasters in 

exploring the potential uses of 

interactivity with our mandate to 

protect children from over 

commercialization. The Order also 

declines to do more than urge voluntary 

action on the part of broadcasters to 

ensure that age-inappropriate 

promotions are not aired in children’s 

programs. 

VI. 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 

this FRFA, to the Chief Counsel for 

Advocacy of the Small Business 

Administration. A copy of the Report 

and Order and FRFA (or summaries 

thereof) will also be published in the 

Federal Register. See 5 U.S.C. 604(b).

List of Subjects 

47 CFR Part 73 

Television. 

47 CFR Part 76 

Cable television.

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary.

Rule Changes

■ For the reasons discussed in the 

preamble 47 CFR Parts 73 and 76 of the 

Code of Federal Regulations are 

amended as follows:

PART 73—RADIO BROADCAST 

SERVICES

■ 1. The authority citation for part 73 

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334, and 

336.

■ 2. Section 73.670 is revised to read as 

follows:

§ 73.670 Commercial limits in children’s 

programs. 

(a) No commercial television 

broadcast station licensee shall air more 

than 10.5 minutes of commercial matter 

per hour during children’s programming 

on weekends, or more than 12 minutes 

of commercial matter per hour on 

weekdays. 

(b) The display of Internet Web site 

addresses during program material is 

permitted only if the Web site: 

(1) Offers a substantial amount of 

bona fide program-related or other 

noncommercial content; 

(2) Is not primarily intended for 

commercial purposes, including either 

e-commerce or advertising;

(3) The Web site’s home page and 

other menu pages are clearly labeled to 

distinguish the noncommercial from the 

commercial sections; and 

(4) The page of the Web site to which 

viewers are directed by the Web site 

address is not used for e-commerce, 

advertising, or other commercial 

purposes (e.g., contains no links labeled 

‘‘store’’ and no links to another page 

with commercial material). 

(c) The display of Web site addresses 

in children’s programs is prohibited 

during both program material and 

commercial material when the site uses 

characters from the program to sell 

products or services.

Note 1: Commercial matter means air time 

sold for purposes of selling a product or 

service and promotions of television 

programs or video programming services 

other than children’s educational and 

informational programming.

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 37

Note 2: For purposes of this section, 

children’s programming refers to programs 

originally produced and broadcast primarily 

for an audience of children 12 years old and 

younger.

* * * * *

■ 3. Section 73.671 is amended by 

revising paragraphs (c)(5) and (c)(6), 

adding paragraphs (c)(7), (d), (e), and (f), 

and removing Note 2 to read as follows:

§ 73.671 Educational and informational 

programming for children.

* * * * *

(c) * * * 

(5) The program is identified as 

specifically designed to educate and 

inform children by the display on the 

television screen throughout the 

program of the symbol E/I; 

(6) The educational and informational 

objective and the target child audience 

are specified in writing in the licensee’s 

Children’s Television Programming 

Report, as described in 

§ 73.3526(e)(11)(iii); and 

(7) Instructions for listing the program 

as educational/informational, including 

an indication of the age group for which 

the program is intended, are provided 

by the licensee to publishers of program 

guides, as described in § 73.673. 

(d) Until analog channels are returned 

to the Commission, the Commission 

will apply the following processing 

guideline to analog stations in assessing 

whether a television broadcast licensee 

has complied with the Children’s 

Television Act of 1990 (‘‘CTA’’) on its 

analog channel. A licensee that has 

aired at least three hours per week of 

Core Programming (as defined in 

paragraph (c) of this section and as 

averaged over a six month period) will 

be deemed to have satisfied its 

obligation to air such programming and 

shall have the CTA portion of its license 

renewal application approved by the 

Commission staff. A licensee will also 

be deemed to have satisfied this 

obligation and be eligible for such staff 

approval if the licensee demonstrates 

that it has aired a package of different 

types of educational and informational 

programming that, while containing 

somewhat less than three hours per 

week of Core Programming, 

demonstrates a level of commitment to 

educating and informing children that is 

at least equivalent to airing three hours 

per week of Core Programming. In this 

regard, specials, PSAs, short-form 

programs, and regularly scheduled nonweekly programs with a significant 

purpose of educating and informing 

children can count toward the three 

hour per week processing guideline. 

Licensees that do not meet these 

processing guidelines will be referred to 

the Commission, where they will have 

full opportunity to demonstrate 

compliance with the CTA (e.g., by 

relying in part on sponsorship of Core 

educational/informational programs on 

other stations in the market that 

increases the amount of Core 

educational and informational 

programming on the station airing the 

sponsored program and/or on special 

nonbroadcast efforts which enhance the 

value of children’s educational and 

informational television programming). 

(e) The Commission will apply the 

following processing guideline to digital 

stations in assessing whether a 

television broadcast licensee has 

complied with the Children’s Television 

Act of 1990 (‘‘CTA’’) on its digital 

channel(s). 

(1) A digital television licensee 

providing only one stream of free digital 

video programming will be subject to 

the 3 hour/week Core Programming 

processing guideline discussed in 

paragraph (d) of this section on that 

channel; i.e., a licensee that has aired at 

least three hours per week of Core 

Programming (as defined in paragraph 

(c) of this section and as averaged over 

a six month period) on its main program 

stream will be deemed to have satisfied 

its obligation to air such programming 

and shall have the CTA portion of its 

license renewal application approved by 

the Commission staff. A licensee will 

also be deemed to have satisfied this 

obligation and be eligible for such staff 

approval if the licensee demonstrates 

that it has aired a package of different 

types of educational and informational 

programming that, while containing 

somewhat less than three hours per 

week of Core Programming, 

demonstrates a level of commitment to 

educating and informing children that is 

at least equivalent to airing three hours 

per week of Core Programming. In this 

regard, specials, PSAs, short-form 

programs, and regularly scheduled nonweekly programs with a significant 

purpose of educating and informing 

children can count toward the three 

hour per week processing guideline. 

Licensees that do not meet these 

processing guidelines will be referred to 

the Commission, where they will have 

full opportunity to demonstrate 

compliance with the CTA (e.g., by 

relying in part on sponsorship of Core 

educational/informational programs on 

other stations in the market that 

increases the amount of Core 

educational and informational 

programming on the station airing the 

sponsored program and/or on special 

nonbroadcast efforts which enhance the 

value of children’s educational and 

informational television programming). 

(2)(i) A digital television licensee 

providing streams of free digital video 

programming in addition to its main 

program stream will be subject to the 

processing guideline described in 

paragraph (e)(1) of this section on its 

main program stream and to the 

following guideline applied to the 

additional programming: 1⁄2 hour per 

week of additional Core Programming 

(as defined in paragraph (c) of this 

section and as averaged over a six 

month period) for every increment of 1 

to 28 hours of free video programming 

provided in addition to the main 

program stream. Thus, digital 

broadcasters providing between 1 and 

28 hours per week of free video 

programming in addition to their main 

program stream will have a guideline of 

1⁄2 hour per week of core programming 

in addition to the 3 hours per week on 

the main program stream. Digital 

broadcasters providing between 29 and 

56 hours per week of free video 

programming in addition to their main 

program stream will have a guideline of 

1 hour per week of core programming in 

addition to the 3 hours per week on the 

main program stream. Digital 

broadcasters providing between 57 and 

84 hours per week of free video 

programming in addition to their main 

program stream will have a guideline of 

11⁄2 hours per week of core 

programming in addition to the 3 hours 

per week on the main program stream. 

The guideline will continue to increase 

in this manner for additional hours of 

free video programming. 

(ii) Broadcasters providing more than 

one stream of free digital video 

programming may air all of their 

additional core programming, apart 

from the 3 hours of core programming 

that must be aired on the main program 

stream, on one free video channel, or 

distribute it across multiple free video 

channels, at their discretion, as long as 

the stream on which the core 

programming is aired has comparable 

MVPD carriage as the stream whose 

programming generates the core 

programming obligation under the 

processing guideline described in 

paragraph (e)(2)(i) of this section.

(3) For purposes of the guideline 

described in paragraphs (e)(1) and (e)(2) 

of this section at least 50 percent of core 

programming cannot be repeated during 

the same week to qualify as core. This 

requirement does not apply to any 

program stream that merely time shifts 

the entire programming line-up of 

another program stream and, during the 

digital transition, to core programs aired 

on both the analog station and a digital 

program stream. 

38 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 

(f) No more than 10 percent of Core 

Programs may be preempted in each 

calendar quarter to qualify as Core 

Programming.

* * * * *

§ 73.673 [Amended]

■ 4. Section 73.673 is amended by 

removing and reserving paragraph (b).

■ 5. 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) * * * 

(11) * * * 

(iii) Children’s television 

programming reports. For commercial 

TV broadcast stations, both analog and 

digital, 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, 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.

* * * * *

PART 76—MULTICHANNEL VIDEO 

AND CABLE TELEVISION SERVICE

■ 6. The authority citation for part 76 

continues to read as follows:

Authority: 47 U.S.C. 151, 152, 153, 154, 

301, 302, 303, 303a, 307, 308, 309, 312, 317, 

325, 338, 339, 503, 521, 522, 531, 532, 533, 

534, 535, 536, 537, 543, 544, 544a, 545, 548, 

549, 552, 554, 556, 558, 560, 561, 571, 572, 

and 573.

■ 7. Section 76.225 is amended by 

revising paragraph (b) and Note 1 and by 

adding paragraphs (c) and (d) to read as 

follows:

§ 76.225 Commercial limits in children’s 

programs.

* * * * *

(b) The display of Internet Web site 

addresses during program material is 

permitted only if the Web site: 

(1) Offers a substantial amount of 

bona fide program-related or other 

noncommercial content; 

(2) Is not primarily intended for 

commercial purposes, including either 

e-commerce or advertising; 

(3) The Web site’s home page and 

other menu pages are clearly labeled to 

distinguish the noncommercial from the 

commercial sections; and 

(4) The page of the Web site to which 

viewers are directed by the Web site 

address is not used for e-commerce, 

advertising, or other commercial 

purposes (e.g., contains no links labeled 

‘‘store’’ and no links to another page 

with commercial material). 

(c) The display of Web site addresses 

in children’s programs is prohibited 

during both program material and 

commercial material when the site uses 

characters from the program to sell 

products or services. 

(d) This rule shall not apply to 

programs aired on a broadcast television 

channel which the cable operator 

passively carries, or to access channels 

over which the cable operator may not 

exercise editorial control, pursuant to 47 

U.S.C. 531(e) and 532(c)(2).

Note 1 to § 76.225: Commercial matter 

means air time sold for purposes of selling 

a product or service and promotions of 

television programs or video programming 

services other than children’s educational 

and informational programming.

* * * * *

[FR Doc. 04–28173 Filed 12–30–04; 8:45 am] 

BILLING CODE 6712–01–P

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Office of the Secretary 

48 CFR Chapter 3 

Acquisition Regulation

AGENCY: Department of Health and 

Human Services (HHS).

ACTION: Direct final rule.

SUMMARY: The Department of Health and 

Human Services is amending its 

acquisition regulation (HHSAR) for the 

purpose of making administrative and 

editorial changes to reflect 

organizational title changes resulting 

from Office of the Secretary (OS) and 

Operating Division (OpDiv) 

reorganizations; updating and removing 

outdated references; providing 

procedural guidance for reporting 

violations of the Procurement Integrity 

Act; assigning unique document 

numbers for contracts and task orders, 

in accordance with an Office of 

Management and Budget Memorandum 

dated August 6, 2003; adding a new 

training requirement for HHS project 

officers; adding the terms ‘‘veteranowned’’ and ‘‘service-disabled veteranowned’’ to describe small business 

categories consistent with the Federal 

Acquisition Regulation (FAR); 

permitting a total of basic and option 

periods of up to ten years for all service 

contracts not subject to the Service 

Contract Act or other statutory 

requirements; adding the Choice of Law 

(Overseas) clause in solicitations and 

contracts when contract performance 

will be outside the United States, its 

possessions, and Puerto Rico, except as 

otherwise provided in a government-togovernment agreement; removing the 

reference to the Department’s General 

Administration Manual with respect to 

major system acquisitions; deleting 

unconstitutional and unenforceable 

portions of the Confidentiality of 

Information clause resulting from the 

outcome of Board of Trustees of Leland 

Stanford Junior Univ. v. Sullivan, and 

providing current references with 

respect to assurances and regulations 

governing the protection of human 

subjects. HHS is issuing a direct final 

rule for this action because HHS expects 

there will be no significant adverse 

comments on the rule.

DATES: This direct final rule will 

become effective March 4, 2005, unless 

significant adverse comments are 

received by February 2, 2005. If adverse 

comment is received, HHS will publish 

a timely withdrawal of the rule in the 

Federal Register.

ADDRESSES: You may submit comments 

by either of the following methods: EMail: Tracey.Mock@hhs.gov or by mail 

to: Tracey Mock, DHHS, OS, ASAM, 

Office of Acquisition Management and 

Policy, 200 Independence Ave., SW., 

Room 324E, Washington, DC 20201. 

Please state ‘‘48 CFR 3’’ on the subject 

line.