September 19, 2000

Re:	In the Matter of Extension of the Filing Requirement for Children's Television Programming Reports (FCC Form 398), MM Docket No. 00-44, Report and Order.

The Children's Television Act of 1990 ("CTA") requires that in reviewing a television broadcast renewal application,⁽¹⁾ the Commission must consider whether 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."⁽²⁾ Under the Commission's implementing rules, a broadcaster can expect to satisfy the Commission's review, if it abides by its "processing guidelines." The guidelines are, in essence, a safe harbor--if a broadcaster offers three hours of regularly scheduled children's educational programming per week, his application will be reviewed at the staff level and will be found to satisfy the CTA. A broadcaster that does not elect to follow the guidelines can still satisfy the requirements of the CTA, if he "demonstrates a level of commitment to educating and informing children that is at least equivalent to airing three hours per week of core programming,"⁽³⁾ through a different mix of education and information programming. Commission rules also require broadcasters to complete quarterly Children's Television Programming Reports identifying core programming and to place them in their public files for inspection. The central component of today's Order is to expand the reporting requirement.

I support two changes made to the Children's Educational Television Reporting requirements in this Order: the continuation of the reporting obligations and the change from an annual to a quarterly filing. Neither of these are burdensome obligations and both requirements will make the information contained in the reports more readily available for purposes of enforcing the Children's Television Act of 1990. Initially, I was less enthusiastic about expanding the substance of the reports, by modifying Form 398, but ultimately became comfortable that the modifications were modest and served valid purposes. I do, however, write separately to highlight what I believe are those purposes.

The Children's Television Programming Reports serve two valid purposes: First, the reports serve as a contemporary record of a broadcaster's efforts to avail himself of the processing guidelines' safe harbor. Television licenses come up for review only every eight years. At the end of such a long period, it would be challenging for the Commission to verify a licensee's claim that it satisfied the guidelines, without a body of record evidence developed over the license period. Second, by stations making these reports available for public inspection, the members of the community to whom a broadcaster is committed to serve will have a better understanding of their local stations' efforts. Likewise, it will facilitate parents' efforts to plan, to a limited degree, what their children watch.

Throughout the Order, however, there is a third purpose suggested that I believe is untenable. The Order regularly emphasizes that the reports allow the public to play an active role in helping the Commission "enforce" the children's programming requirements. Similarly, the Order hails the reports as a way to facilitate "monitoring license compliance" and to assist the FCC in its "enforcement role." The processing guidelines (consisting of three hours of regularly scheduled programming) are not accurately described as requirements. Indeed, a broadcaster could air a different mix of programming, or very little children's programming during its license term and not, technically speaking, violate any rule. The only consequence is that he may not avail himself of the safe harbor at the time his application is up for renewal. Thus, he may be placing his license at risk by not complying with the processing guideline, but he is not violating any rule.⁽⁴⁾

I highlight the nature of the processing guidelines to make the point that expanding our reporting requirements cannot rest on any notion of ongoing enforcement, for there is none to be had. The extent of the reports must be justified, and constrained, by reference to the purposes of the CTA and our obligations in reviewing license renewal applications. On balance, I think the changes today are supportable as measured by this standard.

One final note: Given that our rules do not specifically command broadcasters to air three hours per week of children's educational programming, they should be commended for doing so. This Order demonstrates that a very substantial percentage of stations are offering this valuable programming. Of course, this is self-interested to a degree, for it lowers the risk that their licenses will not be renewed. But, it takes more than simple risk management to produce a quality children's educational program and many of the positive results we see today reflect the commendable joint efforts of government and the broadcasting community.

⁴    It is important to also note that the Children's Television Act does not strictly speaking require any programming during the license term, but only commands the Commission to consider the broadcaster's efforts when reviewing the application for renewal.