August 8, 1996 SEPARATE STATEMENT OF COMMISSIONER RACHELLE B. CHONG, CONCURRING IN PART Re: Policies and Rules Concerning Children's Television Programming, MM Doc. No. 93-48 It has been a long and tortuous road to get us all to this decision today. Reaching this agreement has been like making sausage. It was not a pleasant or pretty process. The end result is palatable, however, and I am pleased that at last we have been able to achieve this order together. Introduction Much of this decision is right on target, though I fear that some of it misses the mark. While I fully support most of what we do today, I reluctantly concur in the portion of the rule that creates a highly restrictive definition of "core programming." I also express serious reservations about our choice of using quantitative processing guidelines. I strongly support our strengthened information requirements that will empower parents by bringing them helpful information through program guides, on-air announcements, and increased reporting requirements. In addition, I support the concept of revising our definition of "core" educational and informational programming, to make clear our expectation that broadcasters must air programming "specifically designed" to serve the educational and informational needs of children. In my view, these actions provide appropriate incentives for broadcasters to fulfill the goal of the Children's Television Act of 1990, "to increase the amount of educational and informational broadcast television programming available to children . . . " I have some doubts about some aspects of this decision, however. While our revised definition of "core" programming is clearer and will aid in our CTA administration efforts, I believe that some aspects of the definition are too narrow. I would have preferred a more expansive definition. In my view, a broader definition would be more faithful to the spirit of the Act and would more reasonably credit more varieties of "specifically designed" programming. I worry that, by regulatory fiat, we may produce unintended consequences on the children's programming marketplace. Finally, I voice serious reservations about today's decision to establish a quantitative processing guideline. Although I agree that a processing guideline creates an easy-to-administer regulatory method to determine broadcaster compliance with the CTA, I remain doubtful that quantification of any aspect of a broadcaster's public interest obligation is wise as a matter of public policy. Congress did not direct us to adopt this one-size-fits-all approach; in fact, the legislative history makes it clear that Congress was not mandating a quantitative approach. I reluctantly concur to this portion of the order, however, and merely voice concerns about where this path may take us in the future if we are not vigilant. A. Improving Children's Educational and Informational Television Requires a Partnership Between Broadcasters, Community, and Government It is my general philosophy that improving children's educational and informational television requires a partnership between the broadcast industry, the community and government. The industry's role is to be responsible and responsive to the community about what they air for children. The Act charges each broadcaster with the responsibility of serving its child audience with educational and informational fare. I believe this means that a broadcaster should actively ascertain the needs of the children in its audience, and provide programming that is responsive to those needs. It should provide information to parents about the children's educational and informational shows they air, so that parents may easily find them and encourage their children to watch. The community's role, especially parents, is to be actively involved in their children's television viewing. It is unwise for parents to use television as a babysitter and expect government to be a substitute parent or school teacher. Today, we give parents more tools to be better informed about when educational and informational shows will be aired, to get information about which shows contain educational and informational themes, and to monitor the performance of the stations in their community. Government also has a key role to play. The Commission has oversight over all broadcasters as public trustees of the nation's airwaves, and implements the Children's Television Act. It is our job to enumerate a broadcaster's responsibilities under the CTA and ensure compliance at license renewal time in a reasonable fashion. It is my view that government has a responsibility to create a framework which accomplishes the following: (1) provides incentives for the industry to provide children's educational and informational programming; (2) respects a broadcaster's constitutional right to make programming decisions independent of government mandates; and (3) provides parents with enough information about qualifying programming so that they are empowered to make more informed viewing choices for their children. Should we succeed in crafting a framework that accomplishes all of the above, I believe the Commission will have done its job under the CTA. This sensible and flexible framework is what I have been working towards in this proceeding. B. Increased Public Information Empowers Parents I have been a strong proponent of the many public information initiatives we adopt in this item. These initiatives will get more information to the public, especially parents, about what individual broadcasters are doing to fulfill their CTA-obligations. The initiatives are also designed to encourage dialogue between broadcasters and their communities. Improved public access to information allows us to rely more on marketplace forces than on government intervention to achieve the goals of the Act. Improved public access also enables community members to help us enforce the statute by monitoring each station's performance. In this way, judgments about the quality of a licensee's programming will be assessed by the community, and not by government. By our actions today, we hope to stimulate more and better quality interaction between broadcasters and their communities. First, our new rules ensure that parents have more ways to find out what children's educational and informational programming their local stations are offering. We require our licensees to submit to program guides lists of their "core" programming. We hope that producers of program guides will print this important information so that it is easier for parents to find "core" programs. We also have imposed a requirement as to on-air identification of "core" programming. Both measures are designed to increase the information parents receive, so that they can encourage their children to watch programming. Second, we have provided improved access to information by the public through standardized reporting and other means. For example, we require a broadcaster to list its "core" programming in a separate Children's Television Report in its public file and to let members of the public know about this report. The community can then easily locate this information and assist the Commission in enforcing the Act. I believe that these public information initiatives help promote broadcaster accountability to its community, consistent with a broadcaster's responsibilities as a public trustee. C. Our Core Programming Definition May Be Too Narrow and Have Unintended Effects At the outset, I note my general support for a strengthened definition of "core" programming. Our record shows that there has been some confusion among our licensees about what types of programming qualify as "specifically designed" to serve the educational and informational needs of children. Our prior definition was apparently overbroad. We have heard complaints that some broadcasters have tried to claim as "specifically designed" programming what is clearly entertainment or general audience programming. To cure this problem, we have provided broadcasters with a definition of programming that clearly qualifies as "specifically designed" to serve children's educational and informational needs ("core" programming). Our new rule, Section 73.671, sets forth very detailed requirements that a program must meet to be treated as "core" programming under our new processing guideline: (1) the program has serving the educational and informational needs of children ages 16 and under as a significant purpose; (2) it is aired between the hours of 7 a.m and 10 p.m.; (3) it is regularly-scheduled weekly programs; (4) it is at least 30 minutes in length; (5) the educational and informational objective and the target child audience are specified in writing; and (6) instructions for listing the program as educational/informational, including an indication of the age group for which the program is intended, are provided by the licensee to publishers of program guides. While I support most factors of this new definition, I have concerns that the third and fourth factors may go too far. As to the third factor, I can understand why we wish to promote "regular scheduling," but I would rather not impose the more restrictive "weekly" requirement. In my view, "regularly scheduled" can be interpreted more expansively to include, for instance, biweekly scheduling, monthly scheduling, or scheduling far enough in advance such that the program can be actively promoted and listed in the program guides for parents to see. Expanding the concept of regularly-scheduled in this way would allow broadcasters to get full credit under Category A of our processing guideline as "core" programming for such things as heavily-promoted hour long educational specials. There is no clear reason to exclude such specials from the concept of "core" programming since they clearly serve the educational and informational needs of children and are likely to garner a substantial child audience. Indeed, Congress itself specifically mentioned such specials as the type of programming the CTA sought to promote. While this decision contends that weekly programming has certain advantages in terms of the ability to follow-up on themes and audience loyalty, I question whether these advantages suggest that a monthly educational program or a heavily promoted informational special for children should be treated as a "second class" program for staff processing purposes. Although "specifically designed" programming that does not qualify for "core" status still "counts" under Category B of the processing guideline, it counts for very little of the mandated three hour weekly average. Similarly, I have concerns about our new rule's fourth factor which requires that the program be at least thirty minutes in length. During the course of this proceeding, I have viewed many outstanding examples of "specifically designed" educational and informational programming that are less than thirty minutes in length, e.g. five to fifteen minutes long. Given the varying attention spans of children depending on their age, I would have preferred that we not make judgments about what program lengths are more effective than others. I would have preferred that this fourth factor give broadcasters greater flexibility to include some short form programming. While it may be true at this time that short form programming is not currently included in program guides, I question whether it is wise to limit broadcasters' future creativity by this restriction. To gain a perspective on the impact of the "core" programming definition, it helps to first review the statutory language and then to draw a simple picture resembling the circles on a dart board. The Act provides that at renewal time, the Commission shall "consider the extent to which the licensee . . . has served the educational and informational needs of children through the licensee's overall programming, including programming specifically designed to serve such needs." Next, draw as a big circle the group of programming that the Act tells the Commission to consider at renewal time -- a broadcaster's "overall programming" that serves the educational and informational needs of children. Then, draw a slightly smaller circle within the first circle. This second circle represents programming "specifically designed" to serve the educational and informational needs of children, which is a subset of "overall programming." Finally, draw inside that second circle a very small third circle, which represents the programming that meets the six factors of the "core" programming definition we set forth today. My point is that I believe we have drawn the smallest circle too narrowly by establishing an overly strict "core" definition. By doing so, we are leaving out worthy "specifically designed" programming in the second circle. Looking back at the plain language of the statute, I see no Congressional intent to place such a narrow gloss on "specifically designed" programming. Indeed, the spirit of the statute seems to be the opposite; the Commission is specifically directed to consider "overall programming" that serves the educational and informational needs of children, in addition to "specifically designed" programming. The legislative history is in accord, and indicates that Congress did not intend to "exclude any programming that does in fact serve the educational and informational needs of children." In this item, we suggest that the availability of Category B processing cures any concern that our definition of "core" programming may be too narrow. There is some merit to this argument, but I think we ought to be realistic about the practical effect of our new rules on the actual production and airing of educational/informational children's programming. Under our processing guideline, broadcasters will have a strong incentive to air three hours of "core" programming because this is a sure path to renewal. Conversely, our scheme gives broadcasters little, if any, incentive to produce or air any programming that does not qualify as "core" programming. My fear is that broadcasters will be dissuaded from funding creative educational and informational programming that can capture children's imaginations but does not fit in our narrow "core" definition. For this reason, I would have preferred a more expansive definition, giving broadcasters more flexibility. D. Issues Related to a Quantitative Processing Guideline As a final matter, I feel I must express my continuing discomfort with quantification of the CTA obligation. I agree that a processing guideline is easy to administer and gives broadcasters more certainty about what they can do to ensure a pass on the CTA at renewal time. Moreover, the three hour benchmark is just a staff processing guideline that we put in place today; I emphasize that this staff processing guideline does not in any way prevent the Commission from considering all the pertinent circumstances of a broadcaster in an individual case. For these reasons, I am able to reluctantly concur. I have consistently disfavored taking a quantitative processing guideline approach for a number of reasons. First, I have looked to Congress' intent as expressed in the plain language of the statute and its legislative history. The plain language of the Act does not compel us to use a quantitative approach. The Act specifies that at renewal time, the FCC must evaluate the extent to which a broadcaster has served the educational and informational needs of children through its "overall programming" of the licensee, including that "specifically designed" to serve the educational and informational needs of children. The Act also makes it clear that the Commission may consider nonbroadcast efforts of the broadcaster which enhance the educational and informational value of the programming to children. Finally, it states that we may also consider efforts to produce or support programming broadcast by another station in the broadcaster's market if it is core programming. Thus, it is my interpretation of this language taken as a whole, that, far from encouraging us to adopt a method of counting only some types of programming (e.g. core) for CTA compliance purposes, the Act directs the FCC to consider the "overall programming" efforts of the licensee. The plain language of the Act states that we may even consider some nonprogramming efforts which are relevant to children's educational and informational needs. In my view, the plain language of the statute supports a "total efforts" type of approach that I had proposed for our new rules. I believe the legislative history of the Act supports a "total efforts" type of approach too. The Senate Report reads in pertinent part: "[The Act] does not exclude any programming that does in fact serve the educational and informational needs of children; rather the broadcaster has discretion to meet its public service obligation in the way it deems best suited. The provision requires that television broadcasters act in the public interest in this important regard and that the FCC at renewal obtain assurance that they have done so." The legislative history further confirms that Congress did not expect the FCC to adopt a quantitative approach. "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 to have its license renewed . . . The Committee believes that a broad range of programming can be used to meet the standard of service to the child audience required by this section." My second reason for disfavoring a quantitative approach is that such an approach reduces a broadcaster's incentive to engage in dialogue with its community about its children's needs. By telling broadcasters they can get an automatic "pass" at the FCC by airing three hours a week of core programming, we diminish the incentive for the broadcaster to engage in dialogue with its community about the particular needs of its children. Clearly, this would be contrary to the goal of our many public information initiatives we have taken in this item. My third reason for disfavoring quantification is that such a standard may set an uncomfortable precedent contrary to the principles of the First Amendment. My thinking on this subject is driven by my deep respect for the concept of freedom of speech and its importance in our democratic society. I fear that a quantitative approach as to particular categories of programming content may start us down a slippery slope of undue government intrusion in a broadcaster's programming discretion. For example, if we are to accept the argument that children's educational television is so compelling a government interest that broadcasters should be ordered by government to air three hours a week, would it set a precedent for a future Commission to decide that election or particular health information are equally compelling government interests, and that therefore broadcasters should be ordered to air two hours per week of these categories of program content? With these concerns in mind, I concur in the quantitative approach towards one aspect of a broadcaster's public interest obligations that we adopt today. I do so in large part because we have a specific statute that charges the Commission with considering CTA efforts in processing renewal applications. I give fair notice, however, that I remain skeptical that quantification of any other aspect of a broadcaster's public interest obligation is wise as a matter of public policy.