MM Docket No. 93-48
Policies and Rules Concerning Children's Television Programming Revision of Programming Policies for Television Broadcast Stations
Adopted: April 5, 1995 Released: April 7, 1995
By the Commission: Commissioner Quello issuing a statement; Commissioner Barrett concurring in part, dissenting in part and issuing a statement; Commissioners Ness and Chong issuing separate statements.
Comment Date: June 16, 1995
Reply Comment Date: July 17, 1995
I. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. The Current State of Children's Television Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. The FCC's Rules and Current Proceeding . . . . . . . . . . . . . . . . 13 III. Proposed Revisions of Children's Programming Requirement . . . . . . . 21 A.Improving the Flow of Information to the Public to Facilitate Enforcement of the CTA . . . . . . . . . . . . . . . . . 21 B. Definition of Programming "Specifically Designed" to Serve Children's Needs . . . . . . . . . . . . . . . . . . . . . 27 C. Further Options . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 1. Monitoring Broadcaster Performance . . . . . . . . . . . . . . . . . 55 2. Safe Harbor Processing Guideline . . . . . . . . . . . . . . . . . . 56 3. Programming Standard . . . . . . . . . . . . . . . . . . . . . . . . 59 4.Certain Issues Relevant to a Safe Harbor Processing Guideline and a Programming Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 5. First Amendment Issues . . . . . . . . . . . . . . . . . . . . . . . 66 6. License Renewal Procedures . . . . . . . . . . . . . . . . . . . . . 74 7. Program Sponsorship . . . . . . . . . . . . . . . . . . . . . . . . . 77 D. Reexamination of Rules . . . . . . . . . . . . . . . . . . . . . . . . 86 IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 V. Administrative Matters . . . . . . . . . . . . . . . . . . . . . . . . . 89 ** Appendixes
2. Congress observed that "it is well established that in exchange for 'the free and exclusive use of a valuable part of the public domain,' a broadcaster can be required to actas a public fiduciary, obligated to serve the needs and interests of its area."(n4) Congress further stated that "[a]s a part of public interest obligation, broadcasters can and indeed must be required to render public service to children."(n5) As a consequence, Congress directed the Commission to review, in any application for license renewal, whether a television broadcast licensee had "served the educational and information needs of children through the licensee's overall programming, including programming specifically designed to serve such needs."(n6)
3. The Commission adopted rules implementing the CTA
in 1991.(n7) In 1993, the Commission, in light of its experience
in reviewing more than 320 television license renewals,
began an inquiry to examine whether our rules should be
revised. Based on that inquiry, this Notice of Proposed
Rule Making proposes changes to our rules to make them
as clear as possible to facilitate licensee compliance
with the CTA, and to strengthen the functioning of the
children's television marketplace.
4. In developing these proposed changes, the Commission
has followed three principles. The first principle is
that judgments of the quality of a licensee's programming,
educational or otherwise, are best made by the audience,
not by the federal government. To enable audiences to
make these judgments, the Commission must ensure that key
members of the market -- e.g., parents -- receive the information
they need to participate in a meaningful fashion. Therefore,
we propose to require broadcasters to identify educational
programming in materials provided to publishers of television
schedules, and to improve the quality of, and public access
to, the information broadcasters make available regarding
their efforts in providing children's programming.
5. By improving the information available to parents
and local communities, we can enable them to be better
informed consumers, influencing the market through their
choices. With better information, parents, educators,
and child advocacy groups also can more effectively use
community-based efforts to seek changes in children's programming
without resorting to governmental intervention. These
groups also can be more effective in facilitating enforcement
of the CTA.
6. The second principle the Commission has followed is
that our rules and processes should be as clear, simple,
and fair as possible. To this end, we believe that we
should revise our definition of "educational and informational"
programming. The current definition is ambiguous and therefore
fails to give licensees clear guidance. Indeed, some licensees
have interpreted this definition to include general audience
news and game shows. Moreover, we have never defined what
constitutes programming "specifically designed" to serve
children's educational and informational needs, even though
the CTA expressly requires each licensee to provide such
programming. We are concerned that this lack of clarity
has led to less than optimal compliance with the goals
of the CTA. We are concerned that, unless we provide greater
specificity, noneducational programming could drive educational
programming off the air.
7. While we believe that our proposals to ensure that
the public has greater access to information and to clarify
the definition of educational and informational programming
are important steps toward promoting the goals of the CTA
more effectively, we are concerned that these efforts may
not suffice to serve the educational and informational
needs of children, and to bring about the kind of measurable
increase in such programming contemplated by Congress.
Accordingly, we also propose to take one of the following
three types of action:
(1) Monitor the amount of broadcasted programming specifically
designed to serve the educational and informational needs
of children for a specified period of time (e.g., three
years) to determine whether our efforts to increase the
flow of information to the public and clarify our rules
have caused a significant increase in such programming.
Stations would be required to submit annual descriptions
of their educational and informational programming. At
the end of the specified period, the Commission would assess
the need for further regulatory action.
(2) Establish a "safe harbor" quantitative processing
guideline, which would specify an amount of programming
specifically designed to serve the educational and informational
needs of children (e.g., 3 hours per week or 3 increasing
to 5 hours per week) that would represent one means of
satisfying the CTA's programming obligation and permit
staff approval of the children's programming portion of
a license renewal application.
(3) Establish a programming standard -- i.e., a rule --
that would require broadcasters to air a specified average
number of hours (e.g., 3 hours per week or 3 increasing
to 5 hours per week) of programming specifically designed
to serve the educational and informational needs of children,
or demonstrate that the programming they did air, along
with other programming-related activities in their market,
served the educational and informational needs of children
as well as or better than providing an additional amount
of programming specifically designed to serve those needs.
As explained more fully below, we seek comment on whether,
if we adopt either a processing guideline or a programming
standard, the regulation should be sunsetted by December
31, 2004. Such a measure would ensure that the Commission
undertakes a review of either type of regulation before
8. The Commission's third principle is that broadcasters
should be guided by market forces, to the greatest extent
possible, in determining whether they meet their programming
obligation by airing shows themselves, or by sponsoring
programming aired on other stations. The program sponsorship
concept, most relevant to the options of adopting processing
guidelines or programming standards, would permit a broadcaster
to better utilize other stations' children's programming
expertise, would allow some stations to develop audience
identification and programming schedules that build child
audiences, and could stimulate growth in the production
of educational and informational programming, all while
reducing disincentives to airing such programming. We
do not believe, however, that the CTA permits a licensee
to satisfy its programming obligation entirely through
sponsorship arrangements. Thus, whatever action we ultimately
take in this area, a licensee would not, in fulfilling
its obligations under the CTA, be permitted to rely completely
on programming it sponsored to air on other stations.
9. American children spend considerable time watching television. Recent data show that children from 2 to 17 watch on average more than 3 hours of television each day.(n8) By the time most children reach the age of 18, it is estimated that they will have watched between 15,000 and 20,000 hours of television. In contrast, they will havespent less than 13,000 hours in the classroom.(n9) Moreover, many children watch television before they are exposed to any formal education.(n10)
10. In enacting the CTA, Congress declared that "[o]ur children are this nation's most valuable resource, and we need to pay special attention to their needs."(n11) At the same time, Congress recognized that many children lack basic reading, math, and other skills.(n12) As noted above, Congress concluded that television has the capacity to benefit society by helping to educate and inform our children.(n13) Indeed, studies show that television programs can effectively teach children specific skills. Children who watch "Sesame Street" and "Mister Roger's Neighborhood," for example, have been shown to learn the concepts and skills taught on those programs,(n14) and to have enhanced attentional and perceptual abilities.(n15) Television can also help prepare children for formal schooling and supplement skills taught in the classroom, and is especially effective when designed to focus on particular age groups.(n16) Finally, television can be used effectively to convey important and positive messages about social behavior.(n17)
11. Recent surveys of children confirm the powerful impact television has on them. In a nationwide survey of 750 children ages 10 to 16, more than one-third said they "often" want to try things they see on TV, and two-thirds said their contemporaries are influenced by what they see on TV.(n18) These surveys reaffirm what the Office of Technology Assessment stated in 1990: "[c]ommunication is the process by which culture is developed and maintained," and "[c]ulture can be thought of as the 'glue,' the shared values and practices, that holds a society together."(n19)
12. As noted above, however, Congress also found that
market forces alone have produced "disturbingly little"
educational and informational programming on commercial
television,(n20) that market forces were not "sufficient to
ensure that commercial stations provide educational and
informational programming,"(n21) and that government action
to increase the availability of such programming therefore
B. The FCC's Rules and Current Proceeding
13. The CTA imposes an affirmative obligation on broadcast
television stations to serve the educational and informational
needs of children through not only their "overall programming,"
but also programming "specifically designed" to serve children's
needs.(n22) The CTA also authorizes the Commission, as part
of its license renewal review process, to consider any
special nonbroadcast efforts by the licensee that enhance
the educational and informational value of programming
to children, and any special efforts by the licensee to
produce or support programming specifically designed to
serve the educational and informational needs of children
that is broadcast by another station in the licensee's
market.(n23) Our current rules generally incorporate the language
of thestatute and also define educational and informational
programming as "programming that furthers the positive
development of children 16 years of age and under in any
respect, including the child's intellectual/cognitive or
social/emotional needs."(n24) In addition, we require broadcasters
to air some amount of standard-length educational and informational
programming specifically designed for children 16 years
of age and under.(n25) We have adopted no other guidelines
regarding the types of programming that may contribute
to satisfying a station's renewal review requirement, and
our rules contain no requirement as to the number of hours
of educational and informational programming that stations
must broadcast or the time of day during which such programming
may be aired.
14. After developing some experience with our implementation of the CTA's regulatory scheme, we initiated this proceeding with a Notice of Inquiry ("NOI") in 1993 "to seek comment on whether and in what manner our rules and policies might be revised to more clearly identify the levels and types of programming necessary in the long term to adequately serve the educational and informational needs of children."(n26) Based on an informal review of more than 320 license renewal applications, we did not believe at that time that the level of educational programming performance was consistent with the CTA's long-term objectives. Concluding that the apparent lack of growth in children's educational programming might be largely attributable to broadcasters' uncertainty regarding the scope of their obligation, we sought comment in our NOI on whether: (1) in establishing compliance with the CTA, licensees should rely primarily on standard-length programming that is specifically designed to serve the educational and informational needs of children, and only secondarily on short-segment programming; and (2) the "primary" objective of qualifying "core" programming should be educational and informational, with entertainment as a secondary goal.(n27) We also sought comment on whether, to provide licensees with clearer guidance and to facilitate the license renewal review process, the Commission should adopt staff processing guidelines specifying an amount and type of children's programming that would permit staff approval of the children's programming portion of license renewal applications.(n28)
15. In June 1994, we convened an en banc hearing on the subject of children's television programming. Twenty-nine panelists gave oral presentations to the full Commission on three topics: (1) "Educational and Informational Programming: Will We Know It When We See It?"; (2) "Educational and Informational Programming: How Much Is Enough?"; and (3) "The Economics of Providing Educational and Informational Programming for Children." The panel participants also submitted written comments addressing these issues, as did other interested parties.(n29)
16. Parties responding to our NOI and commenting in connection with our en banc hearing submitted studies both challenging and supporting our tentative finding that there had been little change in the amount of available educational and informational programming since passage of the CTA. According to a station survey submitted by the National Association of Broadcasters ("NAB"), which purported to show an increase in such programming, the average commercial station aired slightly more than 2 hours per week of regularly scheduled, standard-length children's educational programming in the fall of 1990 and 3.6 hours per week of such programming in the fall of 1993.(n30) According to a survey of member stations conducted by the Association of Independent Television Stations, Inc. ("INTV"), which also claimed that the amount of educational programming had increased, the average independent station aired 4.64 hours per weekof regularly scheduled, standard-length educational programs in the first quarter of 1994.(n31) In a study of license renewal applications filed in 1992, Dr. Dale Kunkel of the University of California, Santa Barbara, found that stations reported airing on average 3.4 hours per week of regularly scheduled, standard-length programming specifically designed to meet children's educational needs, but he concluded that this figure is likely to be inflated because it accepts at face value station claims as to the educational value of programs, and because many of the programs identified by stations were of dubious educational value to children.(n32) Squire Rushnell, former Vice President of Children's Television for ABC from 1973 to 1989, performed a study comparing the amount of children's educational and informational programming produced by networks in the years 1975, 1980, 1985, and 1990, as well as plans for the then upcoming 1994/95 season. Rushnell's results show that in 1975 the three commercial networks were presenting a combined average of 9-3/4 hours per week of children's programs specifically designed as educational. In 1980, this figure rose to 11-1/4 hours per week, but by 1990 had fallen to 1-3/4 hours. Projections for the 1994/95 season showed that three commercial networks (ABC, NBC, and CBS) would present a combined weekly average of 5-3/4 hours of educational children's programming. With the addition of Fox, the weekly average would increase to 9 hours.(n33)
17. After careful review of these studies, as well
as all other information regarding the availability of
educational broadcast programming provided in response
to our NOI and in connection with our en banc hearing,
we find that this evidence is insufficient to support a
conclusion as to whether or not the educational and informational
needs of children are being met, including whether the
CTA and our existing regulations have precipitated a significant
increase in the amount of children's educational and informational
programming carried by commercial broadcasters. In particular,
none of the studies submitted enables us to determine accurately
what amount of programming specifically designed to educate
and inform children is currently being aired by commercial
18. Indeed, the usefulness of all of the studies submitted is limited. Like Dr. Kunkel's study, the station surveys submitted by both the NAB and INTV accept at face value station claims as to the educational content of their programming. Our experience with such face value claims calls into question the reliability of the results presented and the amount of programming on the air they would purport to document. A cursory review of children's programming reports submitted as part of license renewal applications reveals that broadcasters have misidentified certain programs as contributing to their compliance under the CTA.(n34) Others who have reviewed the programming some stations have claimed as educational have found that a significant number of claimed programs were inappropriate, which further supports the suggestion that the figures produced by the above studies may be inflated. The Center for Media Education, filing jointly with other parties ("CME et al."), submitted results of a review of commercial television license renewal applications which it conducted with the Institute for Public Representation of the Georgetown University Law Center in 1992. Based on this study and continued review of license renewal applications, CME found that many stations were listing in their applications programs with no educational content, and concluded that most broadcasters were not increasing the number of hours they devote to children's educational programming.(n35) In addition, the stations that chose to respond to the NAB and INTV surveys may have made a more significant effort to provide educational programming than those that did not respond, which may have resulted in anoverstatement of the effort being made by commercial television broadcasters overall.(n36) Although INTV did include the list of programs reflected in its study of market clearances, this study is limited to syndicated programming. Squire Rushnell's study, on the other hand, is limited to network programming. Moreover, NAB points out several problems that it believes exist with the Rushnell study, including use of an incorrect amount of educational and informational programming for both 1980 and the 1994/95 season, and notes that stations affiliated with the networks today air a considerable amount of non-network educational and informational programming for children.(n37)
19. Even if we accept the conclusion drawn by some parties
that the amount of educational programming on the air has
increased since implementation of our rules, the degree
of that increase appears to be quite modest at best. Thus,
we are not convinced that our current rules are prompting
an adequate response to the CTA. Accordingly, we feel
that it would be desirable to precipitate a more substantial
and significant increase in the amount of children's educational
and informational programming -- in particular, programming
specifically designed to educate and inform children --
in the future. As discussed more fully below, we tentatively
conclude that the first steps toward achieving this goal
should be the following: (1) to take measures to improve
the flow of programming information to the public, and
(2) to adopt a definition of programming specifically designed
to serve children's educational and informational needs.
In addition, we believe that further action is needed
to ensure an adequate supply of programming specifically
designed to meet children's educational and informational
needs. However, as indicated above, the record compiled
thus far is inconclusive with respect to what form that
action should take, and we therefore seek comment below
on a range of options.
20. In conjunction with the description and analysis of each of the proposals and options described more specifically below, we must reiterate to all interested parties the importance of providing us with information and studies in addition to those already submitted, as well as analysis of any useful information or studies already on record. Of obvious importance are materials documenting changes in the nature and amount of children's programming, especially recently. In providing such studies and analysis, commenters should bear in mind the various infirmities that we have already found that limit the utility of the material already presented to us in this inquiry. Such information could be of utmost significance in assisting us in designing rules that achieve the goals ofthe CTA. Finally, we note that if data were submitted that show that the educational and informational needs of children are being met consistent with the goals of the CTA, we would reassess the need for further action.(n38)
21. As stated above, one principle we intend to apply
in this proceeding is that programming quality judgments
are best made by the audience, not the government. Here,
commenters have convinced us that one way to ensure that
Commission licensees provide sufficient amounts of children's
educational programming to comply with the CTA is to facilitate
the ability of the public, especially parents, to interact
in the marketand in the regulatory process.(n39) It is only
through parental involvement that the CTA will be successful.
22. In administering the CTA, we do not believe that
it is necessary for the Commission to evaluate the quality
of children's programming if the public has sufficient
opportunity -- through information -- to play an active
role in assuring that the ultimate goals of the statute
are achieved. Providing this opportunity accomplishes
two things. First, it allows the Commission to rely more
on marketplace forces as a critical mechanism for achieving
the goals of the CTA. For example, if parents have the
opportunity to know in advance that a particular program
has an educational and informational focus, and when such
programs will be shown, they can encourage their children
to watch such programming and thereby increase audience,
ratings, and the incentive of broadcasters to air, and
programmers to supply, more of such programming. We note
that television research indicates generally that parents
act on their objections to television programs and that
programming information could help parents influence the
shows viewed by children. Indeed, one recent study examines
the impact of viewer advisories on a particular subset
of programs which carried such advisories, specifically
prime time movies shown on network television between 1987
and 1993.(n40) Similarly, easy access to information about
a station's past and planned performance in this area would
permit the public to exercise its market prerogatives more
effectively by facilitating viewing campaigns and related
efforts to influence station performance by coordinating
contacts with the station and its advertisers, and by otherwise
bringing community pressure to bear. Indeed, given the
available evidence that parents do use information to exercise
their market prerogatives, we believe that the currentinsufficiency
of over-the-air educational programming may be attributable,
at least in part, to the dearth of programming information
in the marketplace.
23. As the APA has also pointed out, the second thing
that increasing the flow of information to the public
should accomplish is to faciliate enforcement of the CTA.(n41)
Parents, educators, and grass roots groups can play a
more effective role in both the renewal process and in
ongoing monitoring efforts during the course of a station's
license term if information about a station's efforts in
programming for children is made readily available and
24. Accordingly, we tentatively conclude that stations
should be required to identify programs specifically designed
to serve the educational and informational needs of children
at the time they are aired, and, to the extent that programs
are scheduled, that licensees should provide such identifying
information to program guide publishers. Not only would
this information facilitate public involvement as discussed
above, but it also appears to us that stations could use
this as an opportunity for promoting their educational
programs. We believe that such identifications need not
consume large amounts of print or air time, and that they
could be as simple as an icon.(n42) We ask commenters not only
to address this specific proposal and how it could be implemented,
but also to propose any other methods for informing the
public of upcoming children's educational and informational
25. We also seek comment on how we can improve the public's
ability to monitor a licensee's specific efforts to provide
more programming specifically designed to serve the educational
and informational needs of children. At present, licensees
are required to compile reports, on an annual or quarterly
basis (at the licensee's discretion), containing information
about the children's programming they air, including the
time, date, duration and description of the programs.(n43)
These reports must be maintained in the station's public
inspection file. There appear to be a number of changes
we could make in the existing requirements to facilitate
public access to and use of the type of information now
appearing in these reports. One simple change would be
to require the station to include the name of and method
for contacting the person at the station responsible for
collecting comments on the station's compliance with the
CTA. We ask for comment on how such a requirement could
be implemented without being overly burdensome. To the
extent we amend our rules to define "core" programming(discussed
infra at paras. 36-43), it also appears reasonable to require
licensees to provide a brief explanation of how particular
programs meet that definition. In addition, if we adopt
the program sponsorship proposal described below, we believe
that licensees should be required to include information
regarding both the programs they aired themselves and the
programs they sponsored so that this information is verifiable.
26. More generally, we seek comment on ways of rendering
the required information in an easily understandable yet
comprehensive form. At a minimum, we believe that the
reports should be physically separated from the rest of
the material in the public inspection file, as is the licensee's
political file, so that parents and other interested parties
can view the information without having to search through
other unrelated materials. In addition, we believe that
licensees should make efforts to publicize the reports,
by, for example, announcing their existence and location
periodically over the air. We also ask whether these reports
should be produced annually or quarterly, or whether we
should, as we do now, allow stations to choose one of these
B. Definition of Programming "Specifically Designed" to
Serve Children's Needs
27. Background. Under both the CTA and our rules, licensees are allowed to demonstrate that they have met their children's programming requirement in part through general audience and entertainment programs that contain information or illustrate messages helpful to children, but they must also air some programming "specifically designed" to serve the educational and informational needs of children.(n44) Our current definition of educational and informational programming -- "programming that furthers the positive development of children 16 years of age and under in any respect, including the child's intellectual/cognitive or social/emotional needs"(n45) -- is very broad and makes no distinction between general audience/entertainment programs and programs that are specifically designed to educate and inform. As we explained in our Memorandum Opinion and Order, we adopted this very general definition because we thought giving broadcasters wide latitude to make their own children's programming judgments would foster creativity.(n46) In addition, we explained our belief that Congress intended the Commission to defer to the "reasonable programming judgments" of licensees.(n47) We also adopted permissive guidelines for the exercise of licensees' discretion in applying thisdefinition, encouraging them to use these guidelines in assessing the needs of children in their communities and deciding on the types of programming to air.(n48)
28. We found in our review of license renewal applications that some broadcasters were claiming as "educational and informational" programs that had very little educational content. Thus, having preliminarily found that clarification of our definition might be warranted, we sought comment in our NOI on two relevant views: (1) that licensees should rely primarily on standard-length programming that is specifically designed to serve the educational and informational needs of children, and only secondarily on short-segment programming; and (2) that the "primary" objective of qualifying "core" programming should be educational and informational, with entertainment as a secondary goal.(n49)
29. Comments. Several broadcast organizations, including NAB and INTV, argued in response to our NOI that our current broad definition of educational and informational programming should be retained. According to NAB, for example, this definition strikes the appropriate balance between allowing licensees to make their own programming decisions on the one hand and providing guidance to the industry and Commission staff on the other.(n50) In contrast, public interest groups, including educational associations, consumer groups, and children's organizations, as well as other interested parties, generally agreed that our current definition is so vague that it has failed to prompt an adequate response by broadcasters and should therefore be narrowed.(n51)
30. A number of commenters, including Children's Television Workshop ("CTW"), the Walt Disney Company ("Disney"), CBS, INTV, and NAB, disagreed with our suggestion in the NOI of requiring education to be the "primary" objective of core programming on the ground that such a requirement relies on a "false dichotomy" between education and entertainment. These parties expressed the view that children's shows must be entertaining to attract an audience, and they noted that highly respected educational shows currently on the air have a large entertainment component.(n52) However, other commenters, including the APA and Westinghouse Broadcasting Company, Inc. ("Westinghouse"), supported our suggestion that education should be the "primary" objective of core programming.(n53) As an alternative to our suggestion, Disney proposed that qualifying programming should have education as a "significant purpose."(n54)
31. With respect to the issue of standard-length versus short-segment programming, comments were generally divided between public interest organizations, which favored standard-length shows, and broadcasters, which stressed the advantages of short-segment programming. A number of parties, including Capital Cities/ABC, Inc. ("ABC"), Fox Children's Network ("Fox"), NAB, and INTV, argued that short-segment programs are better suited to the attention spans of young children. Broadcasters also pointed out that short segments can be aired immediately adjacent to or in the middle of highly rated children's entertainment shows, thereby ensuring that they reach a large audience, and can be produced more easily and cheaply by individual stations.(n55) Commenters such as the APA, CME et al., and Dr. Kunkel disputed the contention that the attention span of young children is too limited for 30-minute programs and argued that scientific data demonstrate that standard-length programming is in fact more educational than short segments.(n56) These commenters also pointed out that standard-length programs generally are regularly scheduled and therefore listed in program guides, which enables parents and children to select such programming, if desired.(n57)
32. Many commenters, in addition to responding to the specific questions we raised in our NOI, suggested other ways we might revise our definition of educational and informational programming to promote the goals of the CTA more effectively. Thus, for example, Peggy Charren and CME et al. proposed that the Commission should count as "core" programming only programming that is aired between 7:00 a.m. and 10:00 p.m.(n58) According to CME et al., a large percentage of new educational shows have been aired between 5:30 a.m. and 7:00 a.m., even though CME et al. claim that most children do not watch television during that time period.(n59) CME et al. further suggest that, because the needs and interests of different age groups vary widely, core programming should be targeted to serve specific age groups and stations should be required to identify the target group of each program claimed as "core" in their license renewal applications.(n60)
33. Among other suggested rule revisions were CTW's idea of requiring that educational and informational programming specifically designed for children (1) be produced with the assistance of independent educational advisors; (2) be created to fulfill explicit written educational goals; and (3) be evaluated for effectiveness.(n61) The National PTA and CME et al. suggested that educational and informational programming be defined to include programs addressing certain subject areas, such as history, science, literature, fine arts, and current events.(n62)
34. Discussion. We continue to believe that broadcasters
should be permitted to exercise programming discretion
to the fullest extent possible consistent with the requirements
of the CTA. We tentatively conclude, however, that our
current definition of educational and informational programming
does not provide licensees with sufficient guidance regarding
their obligation to air programming "specifically designed"
to serve children's educational and informational needs,
which is the only category of programming that the CTA
specifically requires every licensee to provide.
35. Our review of license renewal applications reveals
that many licensees do not clearly distinguish between
the general audience/entertainment programs they have shown
that serve children's needs and the programs they have
aired that were specifically designed to educate and inform
children. Moreover, stations are continuing to identify
general audience and entertainment programming in their
license renewal applications as specifically designed to
serve children's educational and informational needs.(n63)
In light of these circumstances, and guided by the principle
that our rules should be clear, simple, and fair, we are
inclined to think that we should replace our current broad
definition of educational and informational programming
with a more particularized definition of programming "specifically
designed" to serve children's educational and informational
needs -- i.e., "core" programming -- that will provide
licensees with clear guidance regarding the types of programming
that will meet their obligation to air such programming.
We do not believe that a definition of general audience
and entertainment programming that serves children is needed,
because licensees appear to be airing sufficient amounts
of such programming. In contrast, we believe that a clear
definition is needed to stimulate an adequate supply of
programming "specifically designed" to serve children in
view of what appears to be continuing confusion among licensees
in this regard. In our view, a definition of such programming
would prompt those licensees that are not already doing
so to take steps to improve their service to children,
because it would prevent them from relying largely on programs
that serve children only marginally to meet their obligation
under the CTA.
36. Proposal. We tentatively conclude that we will
define "core" educational programming as those programs
that meet the following requirements: (1) the program
is specifically designed to meet the educational and informational
needs of children ages 16 and under (i.e., has education
as a significant purpose); (2) the educational objective
of the program and the target child audience are specified
in writing in the children's programming report described
above; (3) the program is aired between the hours of 6:00
a.m. and 11:00 p.m.; (4) the program is regularly scheduled;
(5) the program is of a substantial length (e.g., 15 or
30 minutes); and (6) the program is identified as educational
children's programming at the time it is aired, and instructions
for listing it as educational programming are provided
by the licensee to program guides.
37. The elements of our proposed definition are designed
to address both our own concerns raised in the NOI and
those expressed by commenters. We note first in response
to The National PTA and CME et al. that we do not believe
that it is appropriate to limit educational programming
to any identified list of subjects. In addition, we think
that it should be left to broadcasters to decide whether
they need or wish to hire educational advisors to assist
them with the production of programming. Thus, we do not
propose to adopt either of these ideas. With respect to
the concern expressed by Disney and others that educational
programming must be entertaining to be successful, we wish
to make clear that it is our desire to encourage producers
to make educational programming that is attractive to children.
At the same time, we must ensure that broadcasters meet
their obligation under the CTA to air programming specifically
designed to educate and inform.(n64) We therefore propose to
require that any program which is claimed to be "specifically
designed" to meet children's needs have education as "a
significant purpose." We believe that this terminology
makes clear that education need not be the only purpose
of programming designed to meet the educational needs of
children, but must be more than an incidental goal. We
invite comment on this tentative conclusion.
38. With respect to the second element of our core
programming definition, we tentatively agree with those
commenters who have suggested that licensees be required
to specify in writing the educational objective of a core
program, as well as its target child audience, because
we believe that such a requirement will help licensees
focus on children's specific educational needs. We also
believe that this information will assist parents to better
understand licensees' programming efforts and thus afford
them the means to participate with licensees in developing
effective and responsive children's programming. We propose
that such information should be included in the children's
programming report that licensees place in their public
inspection file and that we propose to make more readily
accessible to the public.
39. Some commenters have argued that the Commission should
take action to ensure that there is an adequate supply
of core programming targeted to every age group, asserting
that there is little such programming for pre-school and
elementary-aged children.(n65) We recognize the possibility
that licensees may be induced to air programming for children
over 12 by the fact that (1) this group has greater spending
power than young children, (2) shows for older children
may attract general audiences aswell as children, and (3)
programming designed for children ages 12 and under is
subject to commercial limits, whereas programming for older
children is not.(n66) We continue to believe that it would
be undesirable to require broadcasters to target particular
segments of the child audience, and we prefer to leave
licensees maximum flexibility to choose which segments
of the child audience they wish to serve.(n67) Moreover, we
do not have adequate data showing that in fact younger
age groups are underserved relative to other children.
For this reason, we ask those who disagree with our tentative
view on this matter to provide us with data relevant to
whether there is a shortage of educational programming
targeted to certain age groups. If the data show that
younger children are indeed underserved, what would be
the best way to correct the problem? Should we in some
way provide additional incentives for broadcasters to develop
programming designed for children ages 12 and under or
to any subset of this group?
40. As for the third element of our definition of core
programming, we also agree with those who argue that credit
at license renewal time should be given only for programming
shown during hours when children are likely to watch television.
We tentatively propose to credit as core programming children's
educational programs aired between 6:00 a.m. and 11:00
p.m. The data indicate that these hours include the time
periods most popular for television viewing among children
2 through 17. Thus, as noted above, children ages 6 to
17 watch the most television during prime time. For children
2 to 5 years old, the most popular viewing time period
is 10:00 a.m to 4:00 p.m. Monday through Friday, with prime
time the second most popular.(n68) Although several commenters
argued that core programming should be aired between 7:00
a.m. and 10:00 p.m.,(n69) we are inclined to adopt a wider permissible
time frame. We propose to credit programming aired up
to 11:00 p.m. because we believe that children watch television
through the entire period of prime time.(n70) In addition,
we agree with commenters that expressed the view that programming
aired as early as 6:00 a.m. isvaluable because not an insignificant
number of children are in the audience during this time.(n71)
However, we are concerned that educational programs not
be routinely relegated to the 6:00 a.m. to 7:00 a.m. hour,
which may be earlier than many children watch television,
simply because it may be a less costly time for licensees
to discharge their educational programming obligation.
Accordingly, we solicit further comment on whether core
program hours should include 6:00 a.m. to 7:00 a.m. If
so, and if the data confirm that fewer children watch at
this time than later in the day, should we limit the percentage
of a station's total core programming that may be shown
during this hour? We invite comment on how we can provide
incentives to air children's educational and informational
programming at times when children are most likely to be
41. Turning to the fourth element of our definition
of core programming, we are currently inclined to require
that such programming be regularly scheduled because we
think that it is important for children and their parents
to be able to easily anticipate when educational programming
will be aired. However, we do not wish to create a disincentive
to air children's educational specials, which may not be
regularly scheduled or which may air at relatively infrequent
intervals. We ask for comment on whether we should require
core programs to be regularly scheduled and, if so, how
often and in what manner programs should be scheduled in
order to be considered "regularly" scheduled (e.g., once
a week, once a month, or so long as the program can appear
in program guides).
42. With respect to the fifth element of our definition
of core programming, we are also inclined to require that
core programming be of substantial length. Clearly, a
standard-length program -- generally understood to be at
least one half-hour long(n72) -- would satisfy this requirement.
Such length programs are typically regularly scheduled
and therefore available to the child audience at predictable
times. A shorter length program, however, may nevertheless
reflect a comparable level of service by a station to its
child audience. Moreover, it is certainly possible to
schedule 15-minute programs regularly and have such programming
listed in program guides. We ask commenters to address
the extent to which such programs are now listed in these
guides. More generally, we ask for comment on what length
of program should satisfy the proposed requirement that
core programming be of substantial length. While we are
inclined to require some degree of time commitment, we
recognize that short-segment programming can play a useful
role in serving the needs of children and we do not wish
to give broadcasters a disincentive to air educational
short segments that provide helpful information or respond
to local needs. Accordingly, we will consider alternative
views on this element of our proposed definition. More
specifically, we ask whether short segments that are specifically
designed to serve children's educational needs should be
credited as core programming and, if so, how they should
be credited. Should we, forexample, allow a certain percentage
of core programming to consist of short segments? We are
also interested to know whether broadcasters might want
to meet a part of their core programming obligation by
airing educational segments embedded within a standard-length
noneducational program. Although we do not believe that
the noneducational programs in which such segments are
embedded should be credited as core programming, we seek
comment on whether the segments themselves should be counted
as core educational programming, and, if so, how they should
43. With respect to the sixth element of our definition,
as discussed above, we propose that stations identify "core"
programs as educational and informational at the time they
are aired. In addition, to the extent that programs are
scheduled, we propose to require that licensees make available
the necessary information for listing them as educational
and informational in program guides.(n73) We ask for comment
on this proposal, as well as other ideas about how stations
can inform the public of upcoming children's educational
and informational programming.
44. Finally, we seek comment on whether the permissive
guidelines we currently encourage broadcasters to use to
assess community needs should be retained in any form if
we adopt our proposed definition of core programming, and,
if so, how they should be used.(n74) The assessment criteria
we adopted as permissive guidelines are (1) the circumstances
within the community, (2) other programming on the station,
(3) programming aired on other broadcast stations within
the community, and (4) other programs for children available
in the broadcaster's community of license.(n75) To the extent
our proposed definition has the effect of refocusing broadcasters'
efforts in this area, a set of assessment guidelines may
C. Further Options
45. Background. We believe that our proposals to ensure
that the public has fuller, more accessible programming
information, and to define programming "specifically designed"
to serve the educational and informational needs of children,
would be good steps toward achieving the goals of the CTA
more effectively. However, we are concerned that increased
public information and a clear definition of core programming
may not be enough to bring about the kind of measurable
increase in educational and informational programming contemplated
by Congress. As we have indicated, we are disappointed
that the amount of such programming on broadcast television
has not increased as much as anticipated since we implemented
our currentrules, and we expect to see further improvement.
To ensure such improvement, we believe it necessary to
take some type of further action.
46. When we adopted our current rules, we decided against imposing any kind of quantitative processing guideline or standard because Congress "[did] not intend that the FCC interpret this section as requiring a quantification standard."(n76) As we then stated, we also feared that a quantitative processing guideline might have the unintended effect of creating a ceiling on the amount of educational and informational programming on the air.(n77) Thus, we declined to establish a processing guideline and stated instead that the amount of "specifically designed" programming needed to comply with the CTA was likely to vary according to different circumstances, including the type of programming aired.(n78) However, as noted above, we sought comment in our NOI on whether a processing guideline specifying an amount and type of children's programming should be adopted to provide clearer guidance to licensees and facilitate staff grant of license renewal applications.(n79)
47. Comments. While many broadcasters and broadcast organizations, including NAB and NBC, were opposed to clarifying the amount of programming that would comply with the CTA, others, such as INTV, Tribune Broadcasting Company ("Tribune"), and Act III Broadcasting, Inc. ("Act III"), agreed with the NOI that clarification would be useful to licensees.(n80) INTV also stated that the market would respond to new demand for programming, and perhaps do so more efficiently, if that demand were made more stable and predictable by the establishment of specific expectations by the Commission. In addition, INTV expressed the view that specific guidance as to the Commission's expectations is likely to effect an increase in the overall amount of educational and informational programming because it will encourage stations that have been uncertain about their obligation to air at least the minimum amount expected.(n81)
48. Some of those opposed to clarified standards argued that better results would be achieved by permitting licensees to exercise their discretion in deciding how mucheducational programming to air.(n82) Some broadcasters also argued that the use of a quantitative processing guideline would be premature, attributing any dearth of available educational programming to the fact that the market needs time to place new programs on the air.(n83) NAB and others further argued that in fact new programs were becoming available, and that the amount of available programming would continue to increase without a quantitative processing guideline.(n84) Certain broadcasters contended that a requirement to increase the quantity of children's educational programming might undermine the quality of such programming by forcing, or providing an incentive to, licensees to abandon high-cost and perhaps high-quality shows in order to pay for a greater number of less expensive programs.(n85) Commenters opposed to a quantitative processing guideline also contended that the adoption of such a guideline would violate the First Amendment and be contrary to the intentions expressed by Congress in enacting the CTA.(n86)
49. Those broadcasters who favored clearer guidance regarding the amount of programming required under the CTA generally advocated the establishment of a safe harbor, i.e., an amount of programming that, if met, would establish compliance with the CTA and insulate licensees from further educational programming compliance review, as well as protect them from petitions to deny and competing applications. According to INTV's suggestion, stations that did not meet the safe harbor criteria could nonetheless demonstrate that they had complied with the CTA and thus could be granted their license renewal, although their applications would be subject to heightened scrutiny and they would not be protected from challenges related to their compliance with the statute's programming requirements. INTV also suggested that the Commission establish a safe harbor by issuing a policy statement rather than by adopting a processing guideline, arguing that a policy statement would have the advantage of informality andcould be modified or abandoned more easily than a processing guideline as the marketplace begins to produce adequate children's programming.(n87)
50. Public interest commenters supported the idea of a quantitative processing guideline for children's programming. Among the suggestions made by these parties are the proposal of Peggy Charren of 7 hours per week of regularly scheduled "core" programs distributed throughout the week, the proposal of CME et al. of one hour per day of core programming, and CTW's proposal that licensees be required to air, at a minimum, the greater of: (1) a certain fixed amount per week of standard-length programming specifically designed to meet the educational and informational needs of children; and (2) an amount of such programming equal to a percentage of the total weekly amount of non-qualifying standard-length children's programming aired by the station.(n88)
51. Many commenters favoring the adoption of a quantitative guideline called for a daily minimum, and in particular a requirement of one hour per day.(n89) In contrast, most broadcasters argued that, if a guideline were to be imposed, it should be a weekly guideline. NAB and ABC, for example, pointed out that network affiliates air the bulk of their children's programs on the weekend, while most independent stations, including Fox affiliates, broadcast children's programs on weekdays.(n90) According to ABC, aweekday program requirement would force it to displace early morning and afternoon adult-oriented news and public affairs programs even though children's programs are available at these times on independent and public stations, as well as on cable channels.(n91) NAB argued that the current counter-programming practice of networks and affiliates should not be disturbed by a per-day educational programming requirement.(n92)
52. Discussion. We believe that it is important to
collect additional and more precise data, particularly
with respect to the amount of core programming as we propose
to define it, before determining which additional step
is necessary.(n93) As discussed above, the studies submitted
to us are inconclusive because their results are subject
to question for various reasons. In addition, because
the information presented in renewal applications is based
on our current vague definition, it does not provide us
with a clear picture of the amount of programming specifically
designed to serve children's educational and informational
needs on the air. As already noted, however, the results
of the studies discussed above and the information in the
renewal applications received to date do suggest that any
increase in the amount of such programming being aired
since passage of the CTA has been modest at best and that
some further action on our part is warranted. We therefore
set forth below three alternative options for further action:
(1) Commission monitoring of the amount of educational
and informational programming on the air during a specified
period following adoption of measures to improve the flow
of programming information to the public and a clarified
definition; (2) adoption of a safe harbor processing guideline;
and (3) adoption of a programming standard. We seek comment
on which of these options should be implemented. We also
invite comment on possible new license renewal procedures
and program sponsorship rules that could be implemented
if a processing guideline or programming standard is adopted.
53. In setting forth these options, we want to emphasize
our concern that, although there is an abundant supply
of general audience/entertainment programming that serves
children's needs in some way, it appears that the market
has not produced an adequate supply of programming specifically
designed to serve the educational and informational needs
of children. We have already proposed one approach to
at least partially address this shortcoming -- increasing
and improving the flow of information to the public. Without
adequate information about the relevant product (here,
core programming), the market cannot respond in an efficient
manner. In addition, the market's failure to provide more
core programming can be attributed to the relativelyweaker
buying power of children (compared to the general viewing
populace) and the fact that such buying power derives from
parents. Moreover, since the promotional efforts for children's
programming have been directed largely at the children
themselves rather than their parents, a portion of the
critical information that facilitates market performance
is lost. Finally, we observe that the structure of the
broadcasting market does not have a mechanism for responding
to the intensity of an individual viewer's desire for a
particular program. Unlike the purchaser of products in
a retail setting, the home viewer cannot pay more to register
the intensity of his or her preference for a particular
product. Rather, the primary mechanism for assessing demand
in the television broadcast market is the tabulation of
numbers of viewers. When dealing with a small audience
pool -- here, viewers of children's core programming --
the absence of a market-based mechanism for registering
intensity of preference can result in a critical loss of
programming. While we believe that our proposals for increasing
the flow of information to the public and for clarifying
the definition of educational and informational programming
will help promote the goals of the CTA more effectively,
to the extent that these efforts may not suffice to address
the marketplace dynamic described above, we ask whether
some quantitative regulation may be warranted.
54. We recognize that the Commission has previously
stated that a quantitative standard would be contrary to
Congressional intent.(n94) However, upon reexamining the CTA
and its legislative history, we note that the CTA itself
does not prohibit quantitative programming standards.
Moreover, the legislative history makes clear that, while
Congress did not intend itself to require such a standard,
the House and Senate Reports do not preclude the Commission
from adopting one.(n95) Thus, we believe that it is within
the Commission's discretion to decide how the objectives
of the CTA may best be effectuated.
1. Monitoring Broadcaster Performance
55. One option would be for the Commission to monitor
the programming performance of licensees for a specified
period of time -- for example, three years -- to determine
whether or not our proposed efforts to improve the dissemination
of information to the public and clarify our definition
of educational and informationalprogramming do in fact
result in a significant increase in programming specifically
designed to serve children's educational and informational
needs. To accomplish such monitoring, we suggest that
the Commission would require stations to submit annually
to the Commission a description of their educational and
informational programming. We also believe that, for such
monitoring to be meaningful, it would be essential for
licensees to include in their annual submissions sufficient
information for the Commission to measure the average weekly
amount of core programming on the air. At the end of the
specified period, the Commission would decide whether licensees
were meeting the CTA's objectives or whether stronger regulatory
measures were needed to achieve the statute's goals. We
seek comment on whether the Commission should implement
this option and, if so, how long the monitoring period
should be. We also ask for suggestions regarding how the
Commission should collect information from licensees, and
what kinds of information should be required.
2. Safe Harbor Processing Guideline
56. A second option would be to establish a safe harbor
quantitative processing guideline. Such a guideline would
specify an amount of core programming that would represent
one means of satisfying the CTA's programming obligation
and permit staff approval of the children's programming
portion of a license renewal application. Thus, it would
be similar to the kind of safe harbor proposed by INTV
and others and the processing guideline proposed by CME
et al. in that, if a licensee aired the prescribed amount
of programming, its license renewal application would not
be reviewed further for CTA programming compliance. The
only challenges to a licensee's children's programming
performance that would be entertained would be those questioning
the bona fides of a licensee's claim to have met the processing
guideline. A licensee that did not meet the processing
guideline would have its application referred to the Commission
for consideration and would have the opportunity to demonstrate
that it had complied with the CTA in other ways. The Commission
would then evaluate such a licensee's performance based
on its overall efforts and other circumstances. Failure
to meet the guideline would result in greater review of
the application, but would not constitute a violation of
the Commission's rules.
57. Given the results of the studies submitted to us,
and allowing for the possibility that these studies may
be somewhat flawed,(n96) we are currently inclined to think
that, if a processing guideline is adopted, it should be
set at 3 hours per week of core programming, at least initially.
According to NAB, the average amount of educational programming
aired by commercial stations in the fall of 1993 was 3.6
hours per week. According to INTV, the average amount
of such programming aired by independent stations and Fox
affiliates in the first quarter of 1994 was 4.64 hours
perweek.(n97) Although it is not clear how much of this programming
would meet our proposed definition of core programming,
some portion of it would meet this definition. Thus, a
requirement of 3 hours of core programming per week should
not be difficult for the vast majority of stations to meet,
particularly since the market has had time to produce more
children's programming since NAB and INTV conducted their
studies and both organizations assert that more programming
is becoming available.(n98) We seek comment on these observations
58. In addition, we invite comment on whether, if we
adopted a processing guideline, we should increase it in
stages over time. Such an approach would enable us to
encourage stations to increase their core programming while
allowing for long-term factors such as existing programming
contracts, schedule planning, and program promotion. Moreover,
if we were to institute a safe harbor processing guideline,
we would want to avoid creating any potential incentives
for stations airing more than 3 hours per week of core
programming to reduce those amounts. If we adopted a phased-in
processing guideline, what should the ultimate level of
the guideline be, and over what period of time should it
be phased in? One possibility would be to increase the
guideline by increments of one half hour each year until
reaching a level of 5 hours of core programming per week.
3. Programming Standard
59. A third option would be to establish a standard requiring
that every station be responsible for the airing of a minimum
amount of core programming in its market. Stations meeting
this requirement would qualify for staff approval of the
children's programming portion of their license renewal
application. Those not meeting the standard would have
their applications referred to the Commission for determination
of the appropriate remedy. Notwithstanding failure to
meet the standard, the Commission could hold that the licensee
had in fact complied with the CTA's requirements. However,
a licensee failing to meet a standard would have a much
heavier burden to show that it complied with the CTA than
would be the case if it did not meet a processing guideline.
Thus, a licensee failing to meet a standard would have
to make a compelling showing that the qualifying programming
it did air, along with any of its other programming-related
activities in its market, served the educational and informational
needs of children in that market as well as or better than
an additional amount of programming specifically designed
to serve the educational and informational needs of children.
60. As discussed above in connection with a safe harbor
processing guideline, we believe that, given the current
level of programming documented by the data submitted to
us, the appropriate level of a programming requirement
would be 3 hours of core programming per week, at least
initially. Even allowing for any problems inherent in
the results of the NAB, INTV, and Kunkel studies, it should
be feasible for the vast majority of licensees to meet
a 3-hour-per-week requirement, since this level is below
the average figures produced by those studies and stations
have had more time to respond to the CTA since the studies
were conducted. We seek comment on this suggestion and,
as with the option of a processing guideline, we invite
interested parties to comment on whether it would be appropriate
to increase the requirement by, for example, one half hour
each year until a requirement of 5 hours of core programming
per week is established.
61. A formal standard has certain advantages over a processing
guideline, but it also can be more restrictive. A standard
is a clear statement that a specified level of
core programming or the equivalent is both necessary and sufficient to have complied with the CTA. A processing guideline, on the other hand, merely states that an amount of programming, or its equivalent performance, is sufficient, but not necessary to determine compliance with the CTA. Use of a rule rather than a processing guideline may also be easier to administer and give the Commission a broader range of sanctions with which to address failures to comply with the CTA. We request comment on these observations, and on other considerations commenters believe differentiate a processing guideline from a standard.
4.Certain Issues Relevant to a Safe Harbor Processing Guideline
and a Programming Standard
62. There are a number of questions on which we seek comment that are raised by both the option of a safe harbor processing guideline and that of a programming standard. First, we think that any processing guideline or programming requirement that might be adopted should be expressed in terms of hours per week, rather than hours per day. By this, we wish to leave broadcasters flexibility to determine their program schedules. We also think that the weekly amount should be averaged over a specified period of time. We do, however, express some concern about broadcasters who show the majority of children's educational programs during the early morning weekend hours and request comment on this concern. We seek comment on our suggestion of a weekly processing guideline or programming standard averaged over a specified period, and we ask for ideas as to the period of time over which a guideline or standard should be averaged. We also seek comment on the extent to which repeats during a weeklyschedule and later reruns of programs should be counted toward fulfillment of any processing guideline or programming requirement that we might adopt.(n99)
63. Second, we seek comment as to whether a processing
guideline or programming requirement should be the same
for all stations regardless of station type or market size.
While a uniform guideline or requirement would be simple
and evenly applied, it could have a disproportionate impact
on stations in small markets. The impact on stations in
small markets could indeed be very different from the effect
on stations in large markets if we also permit stations
to meet the guideline or requirement by sponsoring programming
on other stations, as discussed below, because stations
in small markets would not have as many sponsorship options
available to them. On the other hand, small markets --
which are often rural -- may be precisely those markets
in which television is most important as an educational
resource for children, and therefore it might not serve
the needs of children to establish a lower guideline or
requirement for small markets.
64. Third, it has been publicly suggested that to give
stations an incentive to air high-quality programming,
a programming requirement should be based entirely on a
certain amount of rating points.(n100) Under such an approach,
a licensee would be free to determine how it attained the
prescribed number of rating points, whether with a few
highly popular shows or with many less popular ones. We
invite comment on this suggestion and whether it would
be appropriate for either a processing guideline or a programming
standard. We are interested to know in particular whether
a guideline or requirement based on ratings would provide
incentives to air programs of high quality or whether it
would give stations an unintended incentive to claim credit
for programs that do not clearly qualify under a definition
of programming specifically designed to meet children's
educational and informational needs. We are also concerned
that consideration of rating points could make a processing
guideline or programming requirement effectively unattainable
for small stations that may not have the economic ability
to produce or purchase highly rated programs.
65. Finally, we wish to have the fullest information
possible regarding the effect of either a quantitative
processing guideline or standard on broadcasters and the
overall operation of the market. In particular, we seek
to quantify, as much as possible, the economic costs of
meeting a guideline or standard. Thus, we request that
interested parties provide us with detailed information
regarding any potential opportunity costs (i.e., the difference
in profits from children's educational programming and
from otherprogramming that might be aired instead) for
broadcasters that would be created by the implementation
of a processing guideline or programming requirement set
at various levels. Anecdotal evidence alone from individual
station owners as to their particular economic circumstances
will not enable us to make an informed judgment as to the
potential industry-wide costs of any particular guideline
or requirement and its impact on the industry's ability
to serve the public interest. We therefore ask commenters
to provide us with one or more studies that quantify any
such costs on stations in different sized markets, as well
as on the broadcasting industry as a whole. We also urge
commenters to ensure that the sample data used to develop
estimates of any opportunity costs that stations might
face are representative and that the methodology used to
develop the estimates is clearly explained.
5. First Amendment Issues
66. In weighing alternatives for further Commission action, we must consider any limitations imposed by the First Amendment of the Constitution. Even assuming that these proposals were found to be content-based restrictions on speech, some restrictions on content have been judged permissible when applied to broadcasting because of the scarcity of frequencies and broadcasters' concomitant duty to provide public service. It is well established that because the radio spectrum is not available to all, broadcasters have a unique duty to act as fiduciaries for the public,(n101) and may be required to provide programming to meet important public needs.(n102) The Commission therefore is permitted to "place limited content restraints, and impose certain affirmative obligations, on broadcast licensees"(n103) where such restrictions are "narrowly tailored to further a substantial governmental interest."(n104)
67. We tentatively conclude, and the case law suggests, that the government has a substantial interest in furthering the education and welfare of children through implementation of the CTA. The courts have held that there is a compelling government interest in "safeguarding the physical and psychological well being of a minor."(n105) Thelegislative history of the CTA states that "[i]t is difficult to think of an interest more substantial than the promotion of the welfare of children who watch so much television and rely upon it for so much of the information they receive."(n106)
68. The "narrowly tailored" standard described above is similar to the traditional intermediate scrutiny test that the Supreme Court has applied to non-content regulation of non-broadcasters in United States v. O'Brien, 391 U.S. 367 (1968). In that context, the Court has described the narrowly tailored part of the test as not requiring the "least restrictive means," but rather that "the means chosen [must] not burden substantially more speech than is necessary to further the government's legitimate interest." Turner, 114 S.Ct. 2445, 2469 (1994). The Court further explained that this test is met "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Id., quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1988) (internal quotation marks omitted).(n107)
69. We seek comment on whether each of the proposed
alternatives for improving implementation of the CTA is
narrowly tailored to further the CTA's interest in furthering
the education and welfare of children. The answer will
depend, in part, on the facts contained in the record.(n108)
In an effort to develop an appropriate record we seek,
as noted earlier, submission of additional studies concerning
whether and by how much children's programming, especially
"programming specifically designed to serve the educational
and informational needs of children," as we have proposed
to define that term, has increased since enactment of the
CTA and whether the amount of such children's programming
is in fact insufficient to fulfill the requirements and
purposes of the Act. The answers to these questions are
critical in developing a record that willpermit the Commission
to determine whether the existing approach to implementation
of the CTA is overcoming the failure of the marketplace
to produce a sufficient quantity of children's programming
that led to the enactment of the CTA(n109) and whether a modified
regulatory approach is needed. We also seek comment on
which of the various options proposed here would be a more
effective means to implement the substantial governmental
interest in furthering the education and welfare of children
that underlies the CTA.
70. Subject to our further analysis of the record, each
alternative proposed here appears to be less intrusive
than the ban on editorializing on non-commercial stations
that the Supreme Court held unconstitutional under the
First Amendment in League of Women Voters. The Court distinguished
the ban on editorializing from other valid broadcasting
restrictions including the fairness doctrine and the reasonable
access provisions of section 312(a)(7). According to the
Court, these restrictions "left room for editorial discretion
and simply required broadcasters to grant others access
to the microphone. . . ." League of Women Voters, 468
U.S. at 385. The Court further said that the goals of
the editorializing ban could be met by requiring more speech,
rather than less. Id. at 395.
71. In addition, in League of Women Voters, the Court
noted that it had upheld the fairness doctrine because
there was "no threat that a broadcaster would be denied
permission to carry a particular program or to publish
its own views." Id. at 378. We also ask for comment on
whether any of these mechanisms would "tend to transform
broadcasters into common carriers and . . . intrude unnecessarily
upon the editorial discretion of broadcasters." League
of Women Voters, 468 U.S. at 379. Finally, the Court emphasized
that its decision rejecting the ban on editorializing was
a "narrow" one and that "[w]e do not hold that the Congress
or the FCC is without power to regulate the content, timing
or character of speech . . . ." Id. at 402. Here, Congress
has directed the Commission to take action with respect
to children's programming. We ask for comment on the relevance
of that direction to our First Amendment analysis.
72. We further note that a question exists whether quantitative standards, processing guidelines, or monitoring are more intrusive than the Commission's current, more subjective, approach to implementation of the CTA. We request comment on whether the constraints on broadcasters' discretion are greater or lesser when they have a clear quantitative standard with which to comply (or explicit information in the form of processing guidelines on how to assure routine, staff processing of their applications forrenewal, or an expectation of ongoing monitoring) than when they run the risk of having their applications for license renewal denied for non-compliance with a general, subjective standard. We also request comment on whether any of the mechanisms proposed here is overly intrusive. In addition, we also seek comment on whether our proposals would be consistent with elimination of the fairness doctrine.(n110)
73. We seek comment on this preliminary analysis with
respect to each of the options proposed here.
6. License Renewal Procedures
74. As we have indicated, we wish through our proposed
rule revisions to encourage the public, especially parents,
to take an active role in urging stations to comply with
the CTA, and to reduce the government's role in reviewing
such compliance. One way to encourage members of the public
to take an active role in monitoring licensees' compliance
with the CTA, and to engage in an ongoing dialogue with
stations, would be to require that any challenger filing
a petition to deny show that he or she had first attempted
to resolve the alleged problem with the station in question.
As with any other challenge to a licensee's renewal application,
a challenge based on a station's children's programming
performance could be raised only by a party within the
station's viewing area. Beyond this, we seek comment on
whether challengers to a license renewal should be required
to submit evidence that they contacted the licensee regarding
any alleged failure to comply with the CTA, and asked the
licensee to correct its alleged noncompliance. How would
such a requirement work in conjunction with a processing
guideline, as opposed to a programming standard? Could
this requirement be utilized even if the Commission opts
to monitor programming and not to adopt a guideline or
standard? How and when would the challenger have to communicate
alleged problems to the licensee? If, for example, we
instituted a programming standard of 3 hours of core programming
per week averaged over a one-year period, would it be appropriate
to require a challenger to notify a station of any alleged
violation of the standard within one year of the close
of that one-year period? Should the challenger be required
to submit his or her complaint to the licensee in writing,
and what information should the complaint contain? Finally,
we seek comment on what procedures should be put in place
to allow the licensee to correct instances of noncompliance
brought to its attention by a member of its audience.
75. Keeping in mind our objective of reducing the government's
role in reviewing CTA compliance, we seek comment on whether,
if we implement a safe harbor processing guideline or a
programming standard, licensees should be permitted to
certify whether they have aired the prescribed amount of
core programming. In the absence of a challenge to their
license renewal, licensees would not be required to submit
materials documenting their programming performance, but
only to retain them in their public inspection files.
We also seek comment on the following preliminary views.
If we instituted a certification procedure in the case
of either a safe harbor processing guideline or a programming
standard, we believe that stations should be allowed to
certify both to airing a sufficient amount of programming
themselves and to sponsoring programming in conformance
with our sponsorship proposal described below. A certification
scheme should not diminish the duty of each licensee to
provide full information about its children's programming
to the public because we think it is important for parents,
educators, and others to have the fullest programming information
possible. We believe that full information for the public
would assist parents and others in providing a check on
licensees' certifications. Of course, if we opt to monitor
licensees' programming performance, a certification procedure
would be unworkable because we would need to collect programming
information from all licensees.
76. We note that when we adopted our current rules, we
stated that the legislative history of the CTA suggests
that we should review the licensee's children's programming
records, and that certification of compliance with the
CTA's programming requirement would not provide us with
enough information to perform the type of review apparently
intended by Congress.(n111) We believe, however, that it may
be consistent with Congressional intent to require submission
of documentation only from those stations that are unable
to certify compliance with either a processing guideline
or a programming standard. We also believe that our conclusion
on this point is buttressed by the steps we are also proposing
to take with respect to requiring the improved provision
of information to parents. We seek comment on whether
every licensee, or only those not meeting a numerical guideline
or standard, should be required to submit children's programming
information for FCC review.
7. Program Sponsorship
77. As explained above, a third principle we wish to
follow is, if we further define a licensee's obligations,
to permit licensees to allow the marketplace to determine,
to the greatest extent possible, the means available to
stations for fulfilling their programming obligation.
Thus, if we adopt either a safe harbor processing guideline
or a programming standard, we will consider the adoption
of "program sponsorship" rules that would give licensees
the option of either themselves airing the entire prescribed
amount of children's programming, or airing a portion of
the prescribed amount themselves and taking responsibility
for the remainder by providing financial or other "in-kind"
support for programming aired on other stations in their
market. At license renewal time, the station sponsoring
educational programming shown elsewhere (the "sponsor station")
would take credit for the programs it had funded on the
other station (the "host station"). We seek comment on
this idea, as well as the suggestions set forth below for
implementing it and any advantages or disadvantages it
might have for the children's programming marketplace.
78. Because the CTA refers to "a licensee's programming"
and states that efforts to support programming on other
stations may be considered "in addition" to the licensee's
own programming, we conclude that the CTA precludes us
from allowing a licensee to meet either a processing guideline
or a programming standard entirely by sponsoring programming
on other stations in the same market.(n112) We therefore suggest
that, if we adopt any level of processing guideline or
programming standard, each station should be required to
air at least 1 hour of core educational and informational
programming itself and that each be allowed to fulfill
the remaining hours of the guideline or standard by sponsoring
core programming on other stations. Thus, if an initial
processing guideline of an average of 3 hours of core programming
per week were adopted, a station could meet it by airing
1 hour of qualifying programming itself and sponsoring
2 hours of qualifying programming on other stations. Similarly,
if an ultimate guideline of an average of 5 hours of core
programming per week were adopted, a station could meet
it by airing 1 hour of qualifying programming itself and
sponsoring 4 hours of qualifying programming on other stations.
In the alternative, should the amount of qualifying programming
aired by the station itself be a percentage of the amount
specified by the guideline or standard, e.g., one third?
79. We believe that a program sponsorship system could
provide licensees with more options in meeting either a
processing guideline or a programming requirement and lead
to more efficient production of core educational programming
by encouraging entities with more expertise in and commitment
to children's educational programming to take responsibility
for the production and distribution of more such programming.
An increase in the efficiency of children's program production
and distribution could, in turn, result in more core children's
programming of higher quality. A program sponsorship system
could also serve to minimize any economic cost of meeting
a processing guideline or programming requirement. The
opportunity costs of airing core educational programming
will vary from station to station depending upon differences
in a number of factors, including program costs, audience
size, and advertising rates. A program sponsorship system
would enable stations to minimize the opportunity costs
of meeting a processing guideline or programming requirement
by permitting stations with the greatest such costs to
finance the production of programming to be shown on stations
with lower opportunity costs. We recognize, of course,
that the net result of such arrangements might be to shift
a large portion of the available educational programming
off the more popular stations in a market and concentrate
them on the least popular stations, which could be an argument
against permitting program sponsorship. On the other hand,
such a result could in fact have the advantage of creating
a channel on which children and parents would be sure of
finding educational and informational programming. We
seek comment on these issues.
80. In particular, we ask interested parties to comment
on whether antitrust law would limit the extent to which
stations in a market may cooperate through program sponsorship
efforts. In this regard, we believe that a "rule of reason"
analysis would generally apply to such arrangements.(n113) It
is our tentative conclusion that broadcasters' collective
efforts to satisfy their educational and informational
children's programming obligations through program sponsorship
do not create any inherent antitrust problems. As mentioned
previously, the CTA is predicated on the failure of the
market to provide a sufficient amount of educational and
informational programming for children. Thus, Congress
has decided to supplant the free operation of the market
with respect to children's programming. In addition to
the production and distribution efficienciesdiscussed above,
another important consideration in this regard is that
broadcasters would not be permitted to fulfill their entire
programming obligation under the CTA by sponsoring programs
on other stations. This residual requirement decreases
the likelihood that one station would be able to acquire
purchasing power in the children's programming production
81. We also seek comment on the tentative views set forth
below regarding how a program sponsorship system should
work. The CTA and our rules already permit stations to
receive credit at license renewal time for supporting educational
programming on another station in their market.(n114) Indeed,
we have held that if one station produces or buys children's
programs broadcast on another station, so as to qualify
under 47 U.S.C. § 303b(b)(2), both stations may rely on
such programming in their license renewal applications.(n115)
We now seek comment on whether that holding was correct,
or whether it undermines the CTA by permitting "double
counting." If applied to either a processing guideline
or a programming requirement, such double counting could
lead to a substantial reduction in existing levels of children's
educational programming. It therefore appears that, at
least for the purpose of meeting a processing guideline
or programming requirement, host stations should not be
permitted to claim credit for sponsored programming.
82. It is also our view that a station should be allowed
to sponsor programs for the purpose of meeting a processing
guideline or programming requirement only on host stations
that serve largely the same potential viewers. Otherwise,
audiences in some markets might end up with little or no
educational children's programming. In addition, broadcasters'
obligations to serve the public interest applies to the
market in which they are licensed to operate. On the other
hand, we do not believe that we should require sponsor
and host stations to serve exactly the same area because
such a requirement would unduly limit the program sponsorship
options available in many markets. Taking into account
these competing considerations, it would seem sensible
to require that, when any portion of a station's programming
that is claimed to satisfy a processing guideline or programming
requirement consists of programming shown on another station,
the signal of the host station cover 80 percent of either
the community of license or the area encompassed within
the grade A or grade B contour of the sponsor station.
We seek comment on these ideas and also ask how we should
evaluate sponsored programming when the 80 percent threshold
is not met, whether the sponsored programming is relied
upon to meet a processing guideline, relied upon to meet
a programming requirement, or used by the licensee to satisfy
its overall programming obligation under the CTA. We also
ask whether commercial stations should be allowed to sponsor
educational programs on noncommercial stations, and how
such sponsorshipwould support the purposes underlying both
the CTA and the noncommercial educational licenses.
83. If we adopt program sponsorship rules, it appears
to us that stations involved in program sponsorship should
be required to list and describe in their public children's
programming reports programs shown on other stations as
a result of their financial or in-kind contributions.
At a minimum, a station should include a description of
all sponsored programs, identify the host station on which
each program was aired, and provide the time the program
aired. We ask for comment on the feasibility of this proposal
and how it should be implemented, as well as any other
information about sponsored programs that should be provided
to the public.
84. To further provide for public accountability, we
also think that the host station should identify the sponsor
station of every sponsored program at the time it is aired.
This would ensure that the sponsor's good name stands
behind the sponsored program. We seek comment on this
85. In addition to seeking comment on any other necessary
aspects of a program sponsorship system not identified
herein, we invite commenters to identify alternatives to
our suggested approach to program sponsorship, including
alternative definitions of the relevant market for sponsorship
agreements. We also welcome the submission of data regarding
the economic feasibility of a program sponsorship system
and whether such a system would in fact reduce the overall
cost of airing educational programming. More specifically,
we invite commenters to include in the industry-wide studies
of the costs of providing educational children's programming,
described in paragraph 65, information regarding how program
sponsorship arrangements might affect those costs.
D. Reexamination of Rules
86. If we adopt either a processing guideline or a programming
standard, we would intend that the resulting regulatory
changes would be made on a provisional or experimental
basis, rather than as permanent changes. It is our hope
that any such guideline or standard, together with the
other changes we propose, will effectuate a significant
improvement in television broadcasters' service to children,
and also will enable parents to monitor the performance
of stations in their communities and ensure through their
actions that the CTA's objectives are met.
87. In accordance with these expectations, and to ensure
periodic review of the necessity and efficacy of a guideline
or standard, we seek comment on whether we should sunset
any regulatory changes related to the possible implementation
of either of these two options, absent additional Commission
action, on December 31, 2004, unless affirmatively extended
by the Commission. This date is one year after the close
of the renewal cycle for the last group of stations to
come up for renewal after rules would be adopted in this
proceeding, and would allow the Commission, prior to the
sunset, theopportunity to evaluate fully the effects of
any rules adopted here. Thus, it would be our intention
to undertake a review prior to the sunset date.
90. Comment Information. Pursuant to applicable procedures
set forth in Sections 1.415 and 1.419 of the Commission's
Rules, 47 C.F.R. Sections 1.415 and 1.419, interested parties
may file comments on or before June 16, 1995 and reply
comments on or before July 17, 1995. All relevant and
timely comments will be considered by the Commission before
final action is taken in this proceeding. To file formally
in this proceeding, participants must file an original
and four copies of all comments, reply comments, and supporting
comments. If participants want each Commissioner to receive
a personal copy of their comments, they must file an original
plus nine copies. Comments and reply comments should
be sent to Office of the Secretary, Federal Communications
Commission, Washington, D.C. 20554. Comments and reply
comments will be available for public inspection during
regular business hours in the FCC Reference Center (Room
239), 1919 M Street, N.W., Washington, D.C. 20554.
91. Initial Regulatory Flexibility Analysis. As required
by Section 603 of the Regulatory Flexibility Act, the Commission
has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected impact on small entities of the
proposals suggested in this document, set forth in Appendix
C. Written public comments are requested on the IRFA.
These comments must be filed in accordance with the same
filing deadlines as comments on the rest of the Notice,
but they must have a separate and distinct heading designating
them as responses to the Regulatory Flexibility Analysis.
The Secretary shall send a copy of this Notice of Proposed
Rulemaking, including the IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration in accordance
with paragraph 603(a) of the Regulatory Flexibility Act
(Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. § 601 et seq.,
92. Additional Information. For additional information
regarding this proceeding, contact Diane Conley or Kim
Matthews, Mass Media Bureau, Policy and Rules Division,
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Act III Broadcasting, Inc.
American Academy of Pediatrics
American Psychological Association
Associated Broadcasters, Inc., and Galloway Media, Inc.
Association of Independent Television Stations, Inc.
Cannell Communications, L.P.; Cosmos Broadcasting Corporation; Cox Broadcasting;
Great American Television and Radio Co., Inc.; Midcontinent Media, Inc.; Multimedia Broadcasting Company; River City Broadcasting, L.P.; Scripps Howard Broadcasting Company; Tak Communications, Inc.; Wabash Valley Broadcasting Corp.
Capital Cities/ABC, Inc.
Center for Media Education; American Association of School Administrators; Association for Library Service to Children/American Library Association; Center for the Study of Commercialism; Peggy Charren; Consumer Federation of America; Council of Chief State School Officers; Dr. Vincent Hutchins, MD, MPH; National Association for Better Broadcasting; National Association of Child Advocates; National Association of Elementary School Principals; National Association for Families and Community Education; National Black Child Development Institute, Inc.; National Council of La Raza; National Education Association; and National PTA
Children's Television for the '90s
Children's Television Workshop
The Connecticut Broadcasters Association; The Illinois Broadcasters Association; The
Iowa Broadcasting Association; The Michigan Association of Broadcasters; The Minnesota Broadcasters Association; The Missouri Broadcasters Association; The Nebraska Broadcasters Association; The New Hampshire Association of Broadcasters; The Oklahoma Association of Broadcasters; The Tennessee Association of Broadcasters; The Washington State Association of Broadcasters; The West Virginia Broadcasters Association; The Wisconsin Broadcasters Association
Duhamel Broadcasting Enterprises
Fox Children's Network
Haley, Bader & Potts
Dr. Dale Kunkel, University of California, Santa Barbara
National Association of Broadcasters
National Association for the Education of Young Children
National Broadcasting Company, Inc.
National Coalition on Television Violence
New York State Board of Regents and Thomas Sobol, President of
the University of the State of New York and Commissioner of Education
South Florida Preschool PTA
Thirty-Six Television Stations: KBSD, Ensign, KS; KBSH, Hays, KS; KBSL, Goodland,
KS; KEYT, Santa Barbara, CA; KFYR, Bismarck, ND; KGAN, Cedar Rapids, IA; KMOT, Minot, ND; KOVR, Stockton, CA; KQCD, Dickinson, ND; KSTS, San Jose, CA; KTMD, Galveston, TX; KTVO, Kirksville, MO; KUMV, Williston, ND; KVDA, San Antonio, TX; KVEA, Corona, CA; KWCH, Hutchison, KS; WATM, Altoona, PA; WAXA, Anderson, SC; WCFT, Tuscaloosa, AL; WDAM, Laurel, MS; WETM, Elmira, NY; WGGB, Springfiled, MA; WGME, Portland, ME; WHTM, Harrisburg, PA WICS, Springfield, IL; WKAQ, San Juan, PR; WLOS, Asheville, NC; WLUC, Marquette, MI; WNJU, Linden, NJ; WPBN, Traverse City, MI; WSCV, Ft. Lauderdale, FL; WSTM, Syracuse, NY; WSYX, Columbus, NC; WTMJ, Milwaukee, WI; WTOM, Cheboygan, MI; WWCP, Johnstown, PA
Tribune Broadcasting Company
United States Catholic Conference
The Walt Disney Company
Ellen Wartella, University of California, Santa Barbara, and University of Illinois, Urbana- Champaign; and Norma Pecora, Emerson College
Westinghouse Broadcasting Company, Inc.
WTTE, Channel 28 Licensee, Inc.
The following parties filed formal reply comments in response
to the FCC's Notice of Inquiry:
American Psychological Association
The Arizona Broadcasters Association; The Maryland/District of Columbia/Delaware Broadcasters Association; The North Dakota Broadcasters Association
Association of Independent Television Stations, Inc.
Center for Media Education; American Association of School Administrators; Association for Library Service to Children/American Library Association; Center for the Study of Commercialism; Peggy Charren; Consumer Federation of America; Council of Chief State School Officers; Dr. Vincent Hutchins, MD, MPH; International Reading Association; National Association for Better Broadcasting; National Association of Child Advocates; National Association of Elementary School Principals; National Association for Families and Community Education; National Black Child Development Institute, Inc.; National Council of La Raza; National Education Association; and National PTA
Children's Television for the '90s
Haley, Bader & Potts
Dr. Dale Kunkel, University of California, Santa Barbara
National Association of Broadcasters
National Broadcasting Company, Inc.
Frank Allen Philpot
Pulitzer Broadcasting Company
Turner Broadcasting System, Inc.
The Walt Disney Company
Panel 1 -- Educational and Informational Programming:
Will We Know It When We See It?
Children Now -- James P. Steyer, President
Children's Television Workshop -- David V.B. Britt, President and CEO, and Sheldon
Turnipseed, actor in CTW "Ghostwriter" series
Fox Children's Network -- Margaret Loesch, President
National Broadcasting Company, Inc. -- Dr. Karen Hill-Scott, independent consultant
National Education Association -- Dr. Gary D. Watts, formerly Senior Director of NEA's
National Center for Innovation and Assistant Executive Director of NEA's Center for
Teaching and Learning
The National PTA -- Catherine A. Belter, Vice President for Legislative Activity
The Walt Disney Company -- Kenneth D. Werner, Senior Vice President of Business Affairs,
Walt Disney Television, and Bill Nye, Creator and Host, "Disney Presents: Bill Nye
the Science Guy"
World African Network -- Phyllis Tucker Vinson Jackson, Executive Vice President
Panel 2 -- Educational and Informational Programming:
How Much Is Enough?
University of California, Santa Barbara
Peggy Charren, Founder, Action for Children's Television
Millicent Green, 7th-grade student and correspondent for Children's Express
Interfaith Broadcasting Commission -- Dr. Richard McCartney, Chairman
Maryland Campaign for Kids' TV -- Charlene Hughins Uhl, Director, Ready At Five
National Association of Broadcasters -- Paul A. La Camera, Vice President and General
Manager, WCVB-TV, Boston, MA
National Association of Television Program Executives -- Bruce Johansen, President and
COO of NATPE International
Squire Rushnell, former Vice President of Children's Television, ABC
Panel 3 -- The Economics of Providing Educational and Informational
Programming for Children
General Manager, WGN-TV, Chicago, IL
CBS, Inc. - Johnathan Rodgers, President, CBS Television Stations Division
Center for Media Education -- Dr. Kathryn Montgomery, President
Corporation for Public Broadcasting -- Sheila Burke Tate, Chairman, CPB Board of Directors
Hastings College Social Research Center -- Dr. James H. Wiest, Professor of Sociology and
Director, HCSRC, and Dr. Ronald Davis, Associate Professor of Broadcasting and
Director of Telecommunications, Hastings College
KIDSNET -- Karen W. Jaffe, Executive Director
Nickelodeon -- Geraldine Laybourne, President
The Univision Television Network -- Jaime Davila, Chairman
(Panel participants also submitted written comments and/or
summaries of their remarks.)
The following parties did not give oral testimony but
submitted formal comments in connection with the en banc
Act III Broadcasting, Inc.
American Academy of Children's Entertainment
The Media Institute
National Basketball Association
National Stuttering Project
Radio-Television News Directors Association and The Reporters Committee for Freedom of the
The following parties submitted formal reply comments
in connection with the en banc hearing:
Association of Independent Television Stations, Inc.
Capital Cities/ABC, Inc.
Center for Media Education; American Association of School Administrators; Center for
the Study of Commercialism; Peggy Charren; Consumer Federation of America; Council of Chief State School Officers; National Association of Child Advocates; National Association of Elementary School Principals; National Association for Families and Community Education; National Black Child Development Institute; National Council of La Raza; National Education Association; and National PTA.
Children's Television Workshop
Hastings College Social Research Center -- Dr. James H. Wiest and Dr. Ronald D. Davis
National Association of Broadcasters
National Broadcasting Company, Inc.
Newton N. Minow with Craig L. LaMay, for the Public-Service
Television Project of the
American Academy of Arts and Sciences
Office of Communication of the United Church of Christ
Radio-Television News Directors Association and The Reporters Committee for Freedom
of the Press
I. Reason for the Action: This proceeding was initiated
to explore ways to implement the Children's Television
Act of 1990 more effectively.
II. Objective of This Action: The actions proposed in
this Notice are intended to give licensees clear, simple,
and fair guidance regarding their children's programming
obligation; to increase the flow of programming information
to the public to facilitate enforcement of the Children's
Television Act of 1990; and to allow the marketplace to
determine to the fullest extent possible the means that
licensees use to meet their programming obligation. Other
objectives are to increase the amount of available television
broadcast programming that meets the educational and informational
needs of children and to promote efficiency in the production
and distribution of such programming.
III. Legal Basis: Authority for the actions proposed
in this Notice may be found in Sections 1 and 303 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
303; and Section 103 of the Children's Television Act of
1990, 47 U.S.C. § 303b.
IV. Number and Type of Small Entities Affected by the
Proposed Rules: Approximately 1,200 existing commercial
television broadcasters of all sizes may be affected by
the proposals contained in this Notice.
V. Reporting, Record-keeping, and Other Compliance Requirements
Inherent in the Proposed Rule: The Notice seeks comment
on modifying current record-keeping and reporting requirements
to include a requirement that licensees demonstrate compliance
with proposed rule changes in their children's programming
report, and seeks comment on requiring licensees to make
programming information more accessible to the public.
The Notice seeks comment on whether stations should be
required to separate their children's programming reports
from other material in the public inspection file and broadcast
announcements to alert the public of the existence of such
reports. It also seeks comment on a certification requirement
that would replace the current requirement for submission
of detailed documentation to the Commission for those stations
able to certify that they have met a safe harbor processing
guideline or progamming standard.
VI. Federal Rules Which Overlap, Duplicate, or Conflict
with the Proposed Rule: None.
VII. Any Significant Alternatives Minimizing the Impact on Small Entities and Consistent with the Stated Objectives of the Action: The proposals contained in this Notice are designed to encourage television broadcast programming that satisfies the requirements of the Children's Television Act of 1990, while minimizing the impact on small entities.
I. SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. BACKGROUND A. The Current State of Children's Television Programming . . . . . . . . 9 B. The FCC's Rules and Current Proceeding . . . . . . . . . . . . . . . 13 III. PROPOSED REVISIONS OF A.Improving the Flow of Information to the Public to Facilitate Enforcement of the CTA. . . . . . . . . . . . . . . . . . . 21 B. Definition of Programming "Specifically Designed" to Serve Children's Needs. . . . . . . . . . . . . . . . . . . . . . . 27 C. Further Options. . . . . . . . . . . . . . . . . . . . . . . . . . . 45 1. Monitoring Broadcaster Performance. . . . . . . . . . . . . . . . 55 2. Safe Harbor Processing Guideline. . . . . . . . . . . . . . . . . 56 3. Programming Standard. . . . . . . . . . . . . . . . . . . . . . . 59 4.Certain Issues Relevant to a Safe Harbor Processing Guideline and a Programming Standard. . . . . . . . . . . . . . . . 62 5. First Amendment Issues. . . . . . . . . . . . . . . . . . . . . . 66 6. License Renewal Procedures. . . . . . . . . . . . . . . . . . . . 74 7. Program Sponsorship . . . . . . . . . . . . . . . . . . . . . . . 77 D. Reexamination of Rules . . . . . . . . . . . . . . . . . . . . . . . 86 IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 V. ADMINISTRATIVE MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . 89 APPENDIX A APPENDIX B APPENDIX C
Children's Television Act of 1989, Senate Committee on
Commerce, Science and Transportation, S. Rep. No. 227,
101st Cong., 1st Sess. 1, 9 (1989) ("Senate Report").
The other provisions of the CTA, those intended to protect children from overcommercialization of programming, are not at issue in this proceeding.
Footnote 2 Children's Television Act of 1990, Title I, sec. 101.
Footnote 3 Senate Report at 7.
Footnote 4 Children's Television Act of 1989, House Committee on Energy and Commerce, H. Rep. 385, 101st Cong., 1st Sess. 1, 10 (1989) ("House Report").
Footnote 5 Id.; Senate Report at 16.
Footnote 6 47 U.S.C. § 303b(a)(2).
Footnote 7 Report and Order, In the Matter of Policies and Rules Concerning Children's Television Programming and Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log Requirements for Commercial Television Stations, MM Docket Nos. 90-570 and 83-670, 6 FCC Rcd 2111 ("Report and Order"), recon. granted in part, 6 FCC Rcd 5093 (1991) ("Memorandum Opinion and Order").
Footnote 8 The data also indicate that children ages 6 to 17 watch the most television during prime time. For children 2 to 5 years old, the most popular viewing time period is 10:00 a.m to 4:00 p.m. Monday through Friday, with prime time the second most popular. Television Audience 1993, at 14, Nielsen Media Research, 1993. These figures reflect all television viewing, regardless of station type, except for VCR playback. However, information regarding the breakdown of these figures among different media (e.g., over-the-air, cable, MMDS) is not available.
Footnote 9 See Senate Report at 5. See also House Report at 5. Children usually begin watching television before they start school, and they watch on weekends and during the summer when they are not in school.
Footnote 10 See Senate Report at 5.
Footnote 11 Id.
Footnote 12 Id.
Footnote 13 See supra para. 1 (citing Children's Television Act of 1990, Title I, Sec. 101).
Footnote 14 See Senate Report at 6 (citing Huston, Watkins and Kunkel, Public Policy and Children's Television, American Psychologist, February, 1989 ("Huston et al.")). We are aware as well that some researchers have questioned the "learning gain" of children who watch "Sesame Street." See, e.g., Sorry, Ernie. TV Isn't Teaching, New York Times, November 12, 1994. Nonetheless, based on other studies and evidence, Congress has determined that children benefit in important ways from viewing educational and informational programming.
Footnote 15 See Milton Chen, Six Myths About Television and Children, Media Studies Journal, Fall 1994, at 108-09 (citing Dr. Daniel Anderson, Professor of Psychology, University of Massachusetts, Amherst).
Footnote 16 See, e.g., Senate Report at 6.
Footnote 17 See Huston et al. at 425-26.
Footnote 18 The surveys also illustrated television's impact on children through their own stated concerns regarding the values portrayed on television, with over 60 percent of the children surveyed saying that television encourages such negative values as disrespect for their parents and having sex when they are too young, and 82 percent of the children surveyed saying that television should teach right from wrong. Sending Signals: Kids Speak Out About Values in the Media (a Children Now Poll Conducted by Fairbank, Maslin, Maulin & Associates (1995)).
Footnote 19 U.S. Congress, Office of Technology Assessment, Critical Connections: Communication for the Future, 181, 182 (1990).
Footnote 20 Senate Report at 7, 9.
Footnote 21 Id. at 9.
Footnote 22 47 U.S.C. § 303b(a)(2).
Footnote 23 47 U.S.C. § 303b(b)(1) & (2).
Footnote 24 47 C.F.R. § 73.671 Note.
Footnote 25 See Report and Order,, 6 FCC Rcd at 2115; Memorandum Opinion and Order, 6 FCC Rcd at 5100.
Footnote 26 Notice of Inquiry in MM Docket No. 93-48, 8 FCC Rcd 1841, 1841 (1993). We received 29 formal comments and 13 formal reply comments in response to our NOI. A list of the parties filing these comments is contained in Appendix A.
Footnote 27 Id. at 1842.
Footnote 28 Id. at 1843.
See En Banc Hearings on Children's Television in MM Docket
No. 93-48, June 28, 1994. In addition to the testimony
and comments submitted by hearing panelists, we received
eight formal comments in connection with the en banc hearing,
and ten formal replies. A list of the hearing participants
and parties submitting these comments is contained in Appendix
Following the release of our NOI and our en banc hearing, we received more than 500 informal comments, including letters from individual members of the public, favoring one or more of the rule changes suggested in our NOI. In addition, we received hundreds of letters from the public generally supporting stricter rules governing children's educational and informational television programming, and 23 letters from the public generally opposing stricter rules governing such programming.
Footnote 30 See NAB En Banc Reply Comments at 2-4 and Attachment 1. NAB asked commercial television stations to list their children's programming that met the following definition: programming originally produced and broadcast for an audience of children 16 years of age and younger which serves their cognitive/intellectual or social/emotional needs. (Although NAB styled this document "Comments," it is referred to herein as Reply Comments because it was filed on the deadline for reply comments and responds to comments filed by other parties.)
See INTV En Banc Reply Comments at 2-3 and Appendix A at
5-7. INTV's survey of its member stations included both
non-affiliated independent stations and Fox-affiliated
independent stations. Unlike NAB, INTV did not ask respondents
to report programming conforming to a precise definition,
but, rather, asked them to list all programs broadcast
during the first quarter of 1990 and the first quarter
of 1994 that the stations believed satisfied the FCC's
requirements to provide programming that met the educational
and informational needs of children. According to INTV's
results, respondents reported airing 42 such programs per
week during the first quarter of 1990, and 322 such programs
per week during the first quarter of 1994. However, INTV
did not supply an average number of hours per week for
the first quarter of 1990.
INTV also conducted a study of market clearances (i.e., times a program aired in a market) of syndicated children's educational programs which showed that from 1990 to 1993 the number of such market clearances increased from 576 to 1,746. INTV states that its study of market clearances included only programs it believed were "unquestionably" educational and informational and provided a list of these programs. See INTV En Banc Reply Comments, Appendix A, at 2-4.
Footnote 32 Kunkel NOI Comments at 3-4, 6-7. Dr. Kunkel's study contains a list of programs identified by stations as specifically designed to meet children's educational needs, which include programs such as "G.I. Joe," "Teenage Mutant Ninja Turtles," "The Jetsons," and "Full House." Id., Table 2.
Footnote 33 Squire Rushnell En Banc Comments.
Footnote 34 Such programs include, for example, "Super Mario Brothers" and "Slimer--The Real Ghostbusters." Other stations have claimed credit for their general audience news programming or game shows such as "Wheel of Fortune." The NAB and INTV studies did not identify the specific programs reported as "educational" in their survey results.
Footnote 35 See CME et al. NOI Comments at 3-5 and Appendix A-1. (CME submitted its NOI Comments and Reply Comments, and its En Banc Reply Comments, in conjunction with a number of other organizations, which are identified in Appendixes A and B.) NAB challenged CME's conclusions, arguing that the renewal applications reviewed were filed only shortly after the Commission's children's programming rules became effective, at a time when stations had had little opportunity to adjust to the new requirements. See NAB En Banc Reply Comments at 10.
Footnote 36 CME et al. criticized the NAB study on this ground among others. See CME et al. En Banc Reply Comments at 4-7 and Appendix.
Footnote 37 See NAB En Banc Reply Comments, Attachment 5. The results of other studies submitted also have limitations. For example, that of the South Florida Preschool PTA (see South Florida PTA NOI Comments), which claims that the amount of educational programming aired by commercial stations in the area it surveyed is insufficient, is limited in geographical scope.
Footnote 38 We also note in this context that, under our present policy, we require the licensee to submit at renewal time the summary of its programming response and other efforts directed to the educational and informational needs of children that it maintains in its public file. Report and Order, 6 FCC Rcd at 2116. We have further specified that such records should include programming specifically designed to serve children's educational and informational needs and should indicate, at a minimum, the time, date, duration and a brief description of the program or nonbroadcast effort the licensee has made. 47 C.F.R. § 73.3526(a)(8)(iii); Report and Order, 6 FCC Rcd at 2116. See also Memorandum Opinion and Order, 6 FCC Rcd at 5102 ("[C]ommercial licensees must submit all of their children's program lists at renewal time. . . . Interested members of the public have the right to know the basis for a claim that a station has met the educational and informational needs of children.") Dr. Kunkel, in his study of license renewal applications filed in 1992, found that more than a quarter of all stations failed to comply with these reporting requirements. More than one-fifth of stations did not identify any of their claimed educational content as "specifically designed for children," while others submitted only lists of their children's program titles, omitting other related information such as days and times of broadcast or providing no content descriptions. Kunkel NOI Comments at 1, 3-7. We emphasize that we expect our licensees to comply with our reporting requirements.
Footnote 39 The American Psychological Association ("APA"), which proposed in response to our NOI the empowerment of the public through information, indicated that better programming information, and in particular advance notice of educational programs, would assist parents in selecting programs for their children. APA NOI Comments at 5-6. Dr. Kunkel and The National PTA, too, advocated such advance notice to help parents make programming choices. Kunkel NOI Reply Comments at 17-19; The National PTA En Banc Comments at 14-15.
Footnote 40 See Hamilton, Marketing Violence: The Impact of Labeling Violent Television Content, Dewitt Wallace Center for Communications and Journalism Working Paper Series, Terry Sanford Institute of Public Policy, Duke University, December 1994. This study indicates, using a regression analysis compensating for external factors such as scheduling, promotion, and content and program preferences of various demographic groups, that viewing among children 2 to 11 was statistically significantly lower for movies carrying viewer discretion advisories. These results provide, among other things, statistical support from ratings data for the conclusion that parents do act upon information contained in program advisories to discourage the viewing of violent or otherwise objectionable programming among children.
Footnote 41 APA NOI Comments at 5-6. See also Kunkel NOI Reply Comments at 17-19; The National PTA En Banc Comments at 14-15; CME et al. NOI Comments at 37-39.
Footnote 42 Such methods are used in other countries. Australian television stations, for example, use an icon indicating a program suitable for children prior to showing a children's program.
Footnote 43 See 47 C.F.R. § 73.3526(a)(8)(iii).
Footnote 44 47 U.S.C. § 303b(a)(2); 47 C.F.R. § 73.671(a).
Footnote 45 47 C.F.R. § 73.671 Note.
Footnote 46 Memorandum Opinion and Order, 6 FCC Rcd at 5099.
Footnote 47 Id. (citing 136 Cong. Rec. S. 10121 (remarks of Sen. Inouye) (July 19, 1990)).
Footnote 48 Report and Order, 6 FCC Rcd at 2114-15.
Footnote 49 8 FCC Rcd at 1842-43.
Footnote 50 See NAB NOI Comments at 19-20. See also INTV NOI Comments at 11-12 and NOI Reply Comments at 1-6; Tribune NOI Comments at 4.
Footnote 51 See, e.g., CME et al. NOI Comments at 9-12; Charren En Banc Comments at 12.
Footnote 52 See, e.g., CTW NOI Comments at 6-8; Disney NOI Comments at 1-10 and En Banc Comments at 1-5; INTV NOI Comments at 12, NOI Reply Comments at 2-6, and En Banc Reply Comments at 11, 14-15; NAB NOI Comments at 21 and NOI ReplyComments at 6-7; CBS NOI Comments at 32-35; National Broadcasting Company, Inc. ("NBC") NOI Comments at 29-33 and En Banc Comments at 4-5; Thirty-Six Broadcasters NOI Comments at 12-14; and Pulitzer NOI Reply Comments at 7.
Footnote 53 See APA NOI Comments at 4-5; Westinghouse NOI Comments at 5-7.
Footnote 54 See Disney NOI Comments at 11-12, NOI Reply Comments at 6-11, and En Banc Comments at 5.
Footnote 55 See, e.g., INTV NOI Reply Comments at 6-10 and En Banc Reply Comments at 13-14; NAB NOI Comments at 18-19 and NOI Reply Comments at 5-6; Associated Broadcasters, Inc., and Galloway Media, Inc. NOI Comments at 3-6; ABC NOI Comments at 2-6 and En Banc Comments at 4-5; Fox NOI Comments at 4-7 and En Banc Comments at 5-8; Duhamel Broadcasting Enterprises NOI Comments at 2-3.
Footnote 56 See, e.g., APA NOI Comments at 2-3 and NOI Reply Comments; Kunkel NOI Reply Comments at 7-14; CME et al. NOI Comments at 12-13.
Footnote 57 See, e.g., APA NOI Comments at 2-3 and NOI Reply Comments at 7; CME et al. NOI Comments at 13 and En Banc Reply Comments at 26-28; The National PTA En Banc Comments at 15-16.
Footnote 58 See Charren En Banc Comments at 12; CME et al. NOI Comments at 14-16.
Footnote 59 See CME et al. NOI Comments at 14-16.
Footnote 60 See CME et al. NOI Comments at 32-34. See also Charren En Banc Comments at 12; The National PTA En Banc Comments at 10-11, 12-13.
Footnote 61 See CTW En Banc Comments at 2-3.
Footnote 62 See The National PTA En Banc Comments at 12; CME et al. NOI Comments at 11 and En Banc Reply Comments at 12-13. CME et al. suggested in particular that the Commission adopt a revised general definition of educational and informational programming that would include programs that further an understanding of certain subjects and that this definition should be distinct from a definition of core programming. Several parties endorsed the CME-proposed definition, including Interfaith Broadcasting Commission ("Interfaith") (Interfaith En Banc Comments at 6), and Office of Communication of the United Church of Christ ("UCC") (UCC En Banc Reply Comments at 2). (Although UCC styled this document "Comments," it is referred to herein as Reply Comments because it was filed by the deadline for reply comments but not by the deadline for comments.) Interfaith and UCC would also include religion and positive moral values as appropriate topics for educational children's programming.
Footnote 63 Recent programs identified as such include, for example, "Beverly Hills 90210."
Footnote 64 We note that in proposing its "significant purpose" standard, Disney urges the Commission to discard the concept of "core" programming altogether. Disney NOI Reply Comments at 2-6. However, the CTA requires broadcasters to air programming specifically designed to be educational and informational, and it is this type of programming that is the focus of our concern.
Footnote 65 See, e.g., CME et al. NOI Comments at 34-37; The National PTA En Banc Comments at 11.
Footnote 66 See CME et al. NOI Comments at 35; The National PTA En Banc Comments at 11.
Footnote 67 See Report and Order at 2114; Memorandum Opinion and Order at 5100.
Footnote 68 See supra note 8 and Appendix D.
Footnote 69 See, e.g., Charren En Banc Comments at 12; The National PTA En Banc Comments at 8; CME et al. En Banc Reply Comments at 29-32. The APA suggests that core programming should be shown between 7:00 a.m. and 9:00 p.m. APA NOI Comments at 5.
Footnote 70 See supra note 8. See also Report and Order, Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, GC Docket No. 92-223, 8 FCC Rcd 704, 707 (1993), appeal pending sub nom. ACT v. FCC, Case No. 93-1092 (D.C. Cir.) (finding that most of children's television viewing occurs during prime time hours).
Footnote 71 See NAB En Banc Comments, Attachment 1, at 7, and Attachment 2A.
Footnote 72 See NOI, 8 FCC Rcd at 1842 n.12.
Footnote 73 See supra para. 24.
Footnote 74 See supra para. 27.
Footnote 75 See Report and Order, 6 FCC Rcd at 2114-15.
Footnote 76 See Senate Report at 23 and House Report at 17.
Footnote 77 See Memorandum Opinion and Order, 6 FCC Rcd at 5100.
Footnote 78 See Report and Order, 6 FCC Rcd at 2115.
Footnote 79 8 FCC Rcd 1841, 1842-43.
Footnote 80 INTV NOI Comments at 7-8; Tribune Comments at 1-2, 12-13; Act III NOI Comments at 10-11. INTV stated, for example: "Specificity will add much needed certainty to the renewal and licensing process." INTV NOI Comments at 7.
Footnote 81 INTV NOI Comments at 7-8.
Footnote 82 See, e.g., NAB NOI Comments at 3, 16-17; NBC NOI Comments at 9.
Footnote 83 See, e.g., NAB NOI Comments at 5-8, 10-12 and NOI Reply Comments at 2; Haley, Bader & Potts NOI Comments at 4-7. See also INTV NOI Comments at 3-4.
Footnote 84 See, e.g., NAB NOI Comments at 5-8, 10-12, NOI Reply Comments at 2, and En Banc Reply Comments; CBS NOI Comments at 3-5, 8-20; Haley, Bader & Potts NOI Comments at 8-9. See also INTV NOI Comments at 4, NOI Reply Comments at 11-12, and En Banc Reply Comments.
Footnote 85 See, e.g., Thirty-Six Broadcasters NOI Comments at 6-8; Westinghouse NOI Comments at 11; and Pulitzer NOI Reply Comments at 10.
Footnote 86 See, e.g., ABC NOI Comments at 13-17 and En Banc Reply Comments at 2; NBC NOI Comments at 20-25; The Media Institute En Banc Comments at 2-4.
Footnote 87 See INTV NOI Comments at 6-11. INTV and Tribune proposed that the Commission establish a safe harbor of 2 hours per week of educational children's programming. At least 1 hour would have to be standard-length programming designed to serve the educational and informational needs of children; the other hour could include entertainment and short-segment programming that serves the educational and informational needs of children. See INTV NOI Comments at 6, 10; Tribune NOI Comments at 12-15.
Footnote 88 See Charren En Banc Comments at 12; CME NOI Comments at 21-24; CTW NOI Comments at 12-13 and En Banc Comments at 3.
Footnote 89 See, e.g., The National PTA En Banc Comments at 8, 10; Interfaith En Banc Comments at 8; Maryland Campaign for Kid's TV En Banc Comments; CME En Banc Comments at 25; CME et al. En Banc Reply Comments at 23-26; Newton Minow En Banc Reply Comments at 3; UCC En Banc Reply Comments at 3.
Footnote 90 ABC states that 90 percent of network affiliates (not including Fox affiliates) have no regular weekday children's programs, while most independent stations air children's programs during the weekday "early fringe" time period (3:00 p.m. to 6:00 p.m. Eastern time). ABC NOI Comments at 18-19 and En Banc Reply Comments at 3. NAB states that network affiliates are providing more general news and information during weekday morning and late afternoon/early evening time periods, and air children's programs on the weekends when children are not in school. NAB En Banc Reply Comments at 5.
Footnote 91 ABC En Banc Reply Comments at 3-5. See also CBS NOI Comments at 24-25 and En Banc Comments at 7.
Footnote 92 NAB En Banc Reply Comments at 5-6.
Footnote 93 Data submissions should clearly identify the characteristics of the programs included in the data sets.
Footnote 94 Report and Order, 6 FCC Rcd at 2115; Memorandum Opinion and Order, 6 FCC Rcd at 5100.
Footnote 95 See House Report at 17 ("The Committee does not intend that the FCC interpret this section as requiring or mandating a quantification standard governing the amount of children's educational and informational programming that a broadcast licensee must broadcast. . . ."); Senate Report at 23 ("The Committee does not intend that the FCC interpret this section as requiring a quantification standard governing the amount of children's educational and informational programming that a broadcast licensee must broadcast. . . .").
Footnote 96 See supra para. 18.
Footnote 97 See supra para. 16.
Footnote 98 See NAB NOI Comments at 5-8, 10-12; INTV NOI Comments at 4 and En Banc Reply Comments at 2-3.
Footnote 99 The term "repeat" generally refers to rebroadcasts aired within the same week, while rebroadcasts during later time periods are called "reruns."
Footnote 100 Richard Frank, then Chairman of Walt Disney Television & Telecommunications, made this suggestion in a speech delivered on March 3, 1995, to Children Now.
Footnote 101 Red Lion v. FCC, 395 U.S. 367, 388-89 (1969).
Footnote 102 Metro Broadcasting In. v. FCC, 497 U.S. 547, 567 (1990) (citing FCC v. League of Women Voters of California, 468 U.S. 364, 377 (1984)).
Footnote 103 Turner Broadcasting Inc. v. FCC, 114 S.Ct. 2445, 2457, reh'g denied, 115 S.Ct. 30 (1994), (Turner).
Footnote 104 FCC v. League of Women Voters of California, 468 U.S. 364 (1984) (League of Women Voters).
Footnote 105 Action for Children's Television v. FCC, 852 F.2d 1332, 1343 n. 18 (D.C. Cir. 1988) and Supreme Court Cases cited therein.
Footnote 106 Senate Report at 17; see also House Report at 11.
Footnote 107 The Court's decision in Turner lends support to the argument that, even if the "scarcity rationale" noted in League of Women Voters is abandoned, strict scrutiny will not be applied. That demanding standard is applied generally to rules that "distinguish favored speech from disfavored speech on the basis of the ideas or views expressed." 114 S.Ct. at 2459. It does not appear that a standard requiring a certain amount of programming aimed at children's educational and informational needs is not biased in favor of any particular viewpoints. The Court also made clear in Turner that "[i]t would be error to conclude . . . that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others." Id. at 2468. Thus, a special rule aimed at broadcasters might not be subjected to strict scrutiny as long as separate treatment is "justified by special characteristics" of broadcasting. In that connection, as noted above, broadcasters are given use of the spectrum and "broadcasting is uniquely accessible to children, even those too young to read." FCC v. Pacifica Foundation, 438 U.S. 726, 749 (1978).
Footnote 108 See Sable Communications v. FCC, 492 U.S. 115 (1989).
Footnote 109 In enacting the CTA, Congress found that: "Market forces have not worked to increase the educational and informational programming available to children on commercial television." Senate Report at 9. Congress also indicated that the CTA is intended to increase the "amount of educational and information broadcast television programming available to children. . . ." Id. at 1.
Footnote 110 See Syracuse Peace Council, 2 FCC Rcd 5043 (1987), aff'd on other grounds, 867 F.2d 654 (D.C. Cir. 1989), cert. denied, 493 U.S. 1019 (1990). Report and Inquiry into Section 73.1910 of the Commission's Rules and Regulations Concerning the General Fairness Doctrine Obligations of Broadcast Licensees, 102 FCC 2d 143 (1985), petition for review dismissed as moot, Radio-Television Directors Ass'n v. FCC, 831 F.2d 1148 (D.C. Cir. 1987).
Footnote 111 We stated in our Report and Order: "In order for the Commission to review a licensee's renewal application in accordance with the manner intended by Congress . . . we must receive sufficient information to determine the extent to which the licensee has responded to the educational and informational needs of children. Moreover, the legislative history strongly suggests that we should review the licensee's children's programming records in evaluating renewal applications." Report and Order, 6 FCC Rcd at 2116.
Footnote 112 The CTA states in pertinent part: "In addition to consideration of the licensee's programming as required under subsection (a) of this section, the Commission may consider--(1) any special nonbroadcast efforts by the licensee which enhance the educational and informational value of such programming to children; and (2) any special efforts by the licensee to produce or support programming broadcast by another station in the licensee's marketplace which is specifically designed to serve the educational and informational needs of children. 47 U.S.C. § 303b(b).
Footnote 113 A "rule of reason" analysis weighs all the circumstances of a particular case before determining whether a practice is an antitrust violation. See Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36 (1977); FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986). In certain circumstances, where cooperation between competitors leads to greater productivity or other benefits, the Supreme Court has undertaken this rule of reason analysis. See, e.g., NCAA v. Board of Regents of University of Oklahoma, 468 U.S. 85 (1984) (applying rule of reason analysis to agreement that restricted televising of college football games); Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979) (applying rule of reason analysis to agreement among competitors to provide and set price for a "blanket license" to air copyrighted music).
Footnote 114 Cf. 47 U.S.C. § 303b(b)(2) and 47 C.F.R. § 73.671(b).
Footnote 115 Report and Order, 6 FCC Rcd at 2115.