Helpful Footnote for Children’s TV Report Rule Violations

Sometimes the FCC appears to take a position on an issue without ever publishing a written opinion about it. When it comes to whether something violates a rule or policy, that “unofficial” practice or policy creates a bit of a tightrope walk, with stations acting in ways that they believe the FCC approves of, but with the FCC holding all the cards to punish a station. We’ve seen the FCC wield the tightrope “punishment” card recently in connection with NCE station LMAs, where for years such documents had been submitted with license assignment applications without FCC comment, with the FCC finally choosing a situation to declare certain LMA terms unlawful. In doing so, the FCC made clear that if it doesn’t  specifically address a situation or issue in the context of an application, it does not amount to an approval of that situation. That explains why a recent footnote from the FCC on Children’s TV reports is important. For many TV stations, when license renewal comes around and they review how they did with timely completing and filing quarterly children’s television reports, their records show a few late filed reports. That presents a double whammy for certifying compliance on the license renewal application since a station cannot accurately certify full compliance with either the filing requirement or the requirement to timely place the report in the public inspection file. So the station has to certify “no” on both, and then explain what occurred. Often, the FCC simply grants those applications that have minor or de minimus late filings, but because they don’t specifically address the issue, stations can never tell if the FCC agrees with the de minimus argument.

Well, now we know, thanks to the fourth footnote in an FCC decision issued May 21, 2013. It turns out that a Class A station filed for renewal, and admitted that it had not timely filed certain children’s television reports during the prior license
term. The FCC ended up fining the station $3,000 for the violations, but footnote four finally confirmed in writing that the FCC considers certain late children’s television reports to be de minimus. Their exact language – “Four of the reports were filed within five days after the quarterly deadline. We would be inclined to excuse these late filings as de minimus absent the additional late filings, which include 3 reports that were filed more than 30 days late.”

We caution that this leniency should not be cause for ignoring the filing deadline, as the FCC does not excuse every late filing. For example, while filings five days late appear to be forgivable without a fine, numerous late filings might cause the FCC to think twice about their benevolence. Nevertheless, stations should breathe a little easier now, knowing that a late Form 398 filing will not (necessarily) doom them to a fine.