Major Kid Vid Revisions Coming Soon… as the FCC Releases a Draft NPRM

When FCC Commissioner Michael O'Rielly published a blog post back in January that called for the reexamination of the Children's Programming Requirements, we questioned whether the requirements would still exist in the near future.

We can now report that we are not likely to see the complete demise of the FCC's Children Programming Requirements (colloquially known as "Kid Vid"). Instead, the FCC released a draft Notice of Proposed Rulemaking (NPRM) on June 21 intended to significantly relax the Kid Vid rules. Included in the NPRM are proposals to 1) revise the "Core Programming" definition, 2) ease the agency's renewal processing guidelines to create a Kid Vid framework that encourages special sponsorship efforts and special non-broadcast efforts, 3) reexamine the FCC's rules that require Core Programming on multicast channels, and 4) reconsider the agency's preemption policies. These proposals are guided by the directives of the Children's Television Act of 1990 (CTA), which requires the FCC to consider, in its review of television license renewals, the extent to which the licensee "has served the educational and informational needs of children through its overall programming, including programming specifically designed to serve such needs."

As stated by the FCC, this NPRM results from the changing dynamics in the way young viewers consume video programming and the comments received from the public in the FCC's Modernization of Media Regulation Initiative proceeding. The Commission's goal is to modify the outdated requirements so that broadcasters will have greater flexibility to better serve the educational and informational needs of children through its overall programming.

Let's get into the nitty gritty of each proposal:

I. Changes to the Core Programming Definition and Requirements: The FCC seeks comment on revisions to its definition of "Core Programming," which is currently defined as programming that meets the following criteria:

• Serves the educational and informational needs of children ages 16 and under as a significant purpose;
• At least 30 minutes in length;
• Aired between the hours of 7:00 a.m. and 10:00 p.m.;
• A regularly scheduled weekly program;
• Identified as specifically designed to educate and inform children by the display on the television screen throughout the programming of the "E/I" symbol;
• Instructions for listing the program as educational/informational, including an indication of the intended age group, are provided to publishers of programming guides; and
• The educational and informational objective along with the target child audience are reported in the licensee's Children's Programming Report.

Of those criteria, the FCC has tentatively concluded to eliminate the requirements for programming to be at least 30 minutes in length, regularly scheduled, and the requirement by noncommercial stations to identify programming with an E/I symbol on the screen. The FCC is seeking comment on whether commercial stations should also be exempt from identifying programming with an E/I symbol, whether the time period during which Core Programming must air should be expanded outside of 7:00 a.m. - 10:00 p.m.; and whether the broadcasters should provide their Core Programming schedules to publishers of program guides.In addition, the FCC seeks guidance on ways to streamline broadcasters' Core Programming Reporting Requirements by tentatively concluding that the programming report (Form 398) must be filed on an annual rather than quarterly basis. The FCC has tentatively concluded that only reporting on current programming (as opposed to future planned programming as currently required) is necessary, but it is seeking comment on 1) whether reporting about target age groups is necessary, 2) additional methods to streamline reporting, and 3) whether the FCC should eliminate the requirement to place the Form 398 in the public files (although with electronic filing, that now occurs automatically when the report is filed with the FCC).

II. Renewal Processing Guidelines: The FCC also seeks comments on the two methods that it uses to evaluate whether a station meets the Kid Vid rules.

The first method, known as the "safe-harbor" method, allows Media Bureau staff to grant a station's license renewal if the broadcaster can demonstrate that it provided an average of three-hours per week of Core Programming during the license term. In the NPRM, the FCC seeks comment on the costs and benefits associated with this requirement and how it affects the delivery of broadcast content to consumers. The Commission also seeks comment on whether there is still a need for a quantitative processing guidelines for determining compliance with the children's programming requirements.

The second method is designed for stations that rely on special sponsorship and special non-broadcast efforts. While the CTA allows the FCC to consider those efforts in addition to consideration of a licensee's programming to evaluate whether a licensee has served the educational and informational needs of children, few broadcasters have taken advantage of this opportunity to date due to the additional regulatory hurdles. The most significant such hurdle is the requirement for the full Commission, rather than the Media Bureau, to approve the children's programming portion of renewal applications that do not met the "safe harbor" described above. In the NPRM, the FCC seeks comment on how to help create a framework under the second method and how it would help broadcasters to fulfill their children's programming obligations.

III. Multicasting Stations: The FCC proposes to eliminate the requirement that a station air additional Core Programming on its multicast digital streams. The agency also tentatively concludes that the CTA does not require that a station air Core Programming on its primary stream. If this proposal is adopted, this would allow a station the flexibility to air its required Core Programming on its primary stream or on any of its free, over-the-air multicast streams.

The FCC also tentatively concludes that a station can only satisfy its Core Programming requirements by airing programming on digital streams with comparable MVPD carriage is no longer necessary. These proposed rule changes could result in Core Programming airing only on an over-the-air stream, rather than one with MVPD carriage.

The FCC also seeks comment on how these rule changes would impact the ATSC 3.0 rules that were recently adopted (which we wrote about here). For example, the FCC asks whether it needs to build into the ATSC 3.0 rules the flexibility for a broadcaster to air Core Programming on only its 1.0 or 3.0 stream, rather than requiring that the programming air on both.

IV. Preemptions: The FCC asks if it should revise its preemption policies or if the other rule changes it proposes will eliminate the need for preemptions.

The FCC plans to officially adopt this NPRM at its next open meeting on July 12. The public will then be invited to submit comments about the proposals. Comments on changes to the limits on commercial matter in Children's Television Programming will not be considered.

We will provide updates of any changes once the final NPRM has been adopted and once comment dates are set.