Congress and the FCC regard children's television with special importance. Children's high susceptibility to advertising(note 7) and lack of power in the marketplace have been the main justifications for regulating broadcasting aimed at them.(note 8) However, the FCC has not always been amenable to strict guidelines.(note 9) The Act of 1990 represented a dramatic turnaround in Commission action. Previously, the FCC had shown a desire to deregulate in the children's television area.(note 10)
The Act has displeased many, however, including both the staunchest supporters of protective legislation for children and broadcasters.(note 11) Parents' and children's advocacy groups disapprove of the way broadcasters are responding to the Act,(note 12) and broadcasters are uncertain how to respond to the Act's demand that they serve "the educational and informational needs of children."(note 13) The Act is vague, so vague that little positive action has occurred in children's television.
In the wake of this situation, many are calling for changes in children's television regulations, including limits on time and content of programs and a stricter definition of children's television.(note 14) But stronger regulations are bound to face challenges because of the difficulty in enforcing them, and because they may intrude on broadcasters' First Amendment rights.
I. The Act as of 1990
The Children's Television Act of 1990 has three basic
features. It places time restrictions on advertising during
children's programming,(note 15)
requires broadcasters to make an effort to air programming that
benefits children,(note 16) and
informs broadcasters that, at license renewal time, compliance with
these factors will be considered as part of their duty to program
in the public interest.(note 17) The
Act gives the Commission the opportunity to modify these limits
after January 1993.(note 18) But
with the rationale for the rule being to "protect children from
overcommercialization,"(note 19) it
seems unlikely the ad limits will be relaxed.
Section 303b of the Act emphasizes the importance of this legislation. It allows the FCC to consider broadcasters' efforts in complying with the Act when reviewing license renewal applications.(note 20) The Commission may examine how well a licensee is following the advertising restrictions, and whether the licensee is meeting the "educational and informational needs of children."(note 21) In a small victory for broadcasters, the Act does not require them to keep specific or detailed records of their compliance.(note 22) They may even ask the Commission to consider their nonbroadcast efforts to educate children or their support of other licensees' child- oriented programming within the same market.(note 23) There are no minimum amounts required for this type of programming, nor are there any descriptions of what qualifies as educational or informational television.(note 24)
The advertising restrictions are perhaps the clearest of the three rules. Section 303a commanded the Commission to follow rulemaking proceedings that resulted in limits on advertising of 10.5 minutes per hour on weekends and twelve minutes per hour on weekdays during child-oriented broadcasts.(note 25) Children's programming is generally defined by the FCC as that geared toward children under twelve.(note 26) These rules apply to cable operators as well as over-the-air licensees.(note 27) All types and lengths of programs for children must meet the requirements, including "short segment" programming (programs less than half an hour long).(note 28) Some general, all-age programming may be used to fulfill the Act's programming requirements if these shows are beneficial to children.(note 29) Congress has made it clear, however, that a licensee does not meet its obligation to younger viewers if it does not show some programming made expressly for them.(note 30)
When Congress passed the Act, it found that television could be an important tool in educating children;(note 31) therefore, part of the broadcaster's duty to serve the "public interest" requires it to provide programming for children.(note 32) Also, broadcasters are asked to consider "the characteristics of the child audience" in making programming and advertising decisions.(note 33)
The FCC has articulated several reasons for regulating in this area. One is that broadcasting is to be made in the public interest,(note 34) and it is in the interest of children to protect them from the persuasions of advertising.(note 35) Also, it is in the public interest to promote the educational needs of children.(note 36) The immaturity of children is another factor the Commission has considered when creating regulations for children's television.(note 37)
Regulation of children's broadcasting dates back to the 1970s.(note 38) The FCC submitted its first major statement on the issue in 1974(note 39) and it was affirmed by the United States Court of Appeals for the D.C. Circuit.(note 40) This policy statement avoided direct regulations, and instead required broadcasters to make a "meaningful effort" to provide more children's programming.(note 41) It also placed limits on advertising and asked that television stations make an effort to keep programs and commercials separate.(note 42)
In the 1980s, the Commission paid little attention to how broadcasters programmed for children. In its 1984 Report and Order, the FCC stated that television was adequately serving the needs of children,(note 43) and that any greater regulation would overburden the broadcast industry, possibly reducing the quality of programming available for children.(note 44) The diversity of television-type resources available with which to educate and entertain children was cited as a reason for this new direction.(note 45) The massive deregulation efforts of the Reagan administration also presumably played a part in the FCC's lack of regulatory effort.(note 46)
Children's interest groups quickly took the FCC to task for its deregulatory stance. The Court of Appeals for the D.C. Circuit held that it was within the FCC's power to consider other forms of television, such as video and cable, in deciding to curtail its programming regulations.(note 47) But two years later it found that the Commission had not adequately justified its reasons for dropping some regulations.(note 48) Because of the Commission's "long history . . . of separate treatment of children's television," it could not drop all of its regulatory measures without some clear, precise reasoning.(note 49)
Congress also became involved. Between 1985 and 1989, several bills were considered that proposed greater regulation of broadcasting for children.(note 50) A popular bill passed by both the Senate and the House of Representatives(note 51) (and endorsed by many in the broadcast industry)(note 52) was pocket vetoed by President Reagan in 1988.(note 53) By 1990, however, Congress had created a new law that was enough to force the FCC to act in the area of children's television.(note 54) Various groups have asked the FCC to either clarify or strengthen the regulations contained in the Act.(note 55) The Commission has thus far declined to extend the Act into the areas of program- length commercials, or to define further what kind of programming it considers the most educational for children. The FCC has recently requested comments on how the law is working,(note 56) suggesting that it will be more active in enforcing the current rules.(note 57)
II. Issues Since Enactment
A. The Advertising Restrictions
Congress was very specific regarding the action the FCC should
take against advertising shown during children's programs. The Act
commands the Commission to limit commercial broadcasting to 10.5
minutes per hour on weekends, and twelve minutes per hour on
weekdays.(note 58) These rules apply
to all stations, broadcast and cable,(note 59) and to all lengths of programs.(note 60) The limits were likely set in
response to several surveys that demonstrated that television
stations in the 1980s, after the FCC's repeal of its commercial
guidelines, often broadcast far more than twelve advertising
minutes per hour, especially in the larger markets.(note 61) A study conducted by Action for
Children's Television found stations airing as much as fourteen
minutes per hour of advertising during children's programs.(note 62) A 1990 study concluded that,
overall, stations in a wide range of cities were within the time
limits, but that cable and independent broadcast stations showed
far fewer commercials than did broadcast network affiliate
stations.(note 63)
The Commission itself has conducted random reviews of ads being broadcast in order to check up on its licensees.(note 64) An audit conducted in January 1992 came up with ten violations out of more than 160 television stations and cable systems inspected.(note 65) Fines of up to $20,000 were levied on three stations cited as violators, with three others receiving admonishments from the FCC.(note 66) The latter punishment carries a higher fine for repeat offenders.(note 67) A spokesperson for the FCC has indicated more audits are likely in the future.(note 68)
More recently, several stations that had turned themselves in were fined.(note 69) These stations and the one involved in the 1992 audit were cited for either violating advertising time limits or for airing commercials advertising a product connected with the show being aired.(note 70) Although not specifically part of the Act, broadcasters have been asked to distinguish programming from commercials when children are the majority of the audience.(note 71) This request arises from the perception that young children cannot separate ads from programming and are easily swayed by commercial matter.(note 72)
Broadcasters remain unclear on what constitutes compliance. One recent violator, Superstation WTBS in Atlanta, was admonished for going over the weekday advertising time limits.(note 73) The station challenged the FCC's finding, because it believed that ads promoting programming on other stations owned by Turner Broadcasting should not be counted as "commercial matter."(note 74) WTBS argued that these ads did not have to meet the FCC's standards because the ads were not sold for money to the broadcaster.(note 75) The Commission, however, defined "sold" as any situation where the broadcaster receives "valuable consideration" from the advertiser, and it stated that in this case, WTBS received such consideration either directly or indirectly.(note 76) For this violation, WTBS received only an admonishment because it agreed to monitor this practice more carefully in the future.(note 77)
While proponents of the Act hope these fines and punishments will create more compliance with the ad limits,(note 78) some broadcasters have stated that it takes too much time and money to comply with the Act.(note 79) It has been suggested that some broadcasters may simply give up trying to program for children for fear of sanctions if they do not comply.(note 80) The FCC's past relative leniency with most violators,(note 81) and the fact that the Act places an affirmative duty on broadcasters to program for children, make it unlikely that stations will completely abandon children's programming.(note 82)
One way broadcasters have dealt with both the ad limits and the duty to program for children is with "kids clubs." The clubs show informational or educational spots between children's programs, which are tied together by an on-air host.(note 83) Most clubs send a newsletter containing ads to members, providing a way for the sponsoring station to sell more advertising without violating time limits.(note 84) The Fox network Kids Club has some 4.5 million members across the country.(note 85)
B. Center for Media Education Report
After the Act had been law for one year, the Center for Media
Education (CME), a Washington-based consumer watchdog group,
released a study analyzing broadcasters' compliance with the Act's
programming requirements and studying whether the Act was achieving
Congress's and the FCC's goals for children's programming.(note 86) The CME (in conjunction with
the Institute for Public Representation at the Georgetown
University Law Center) reviewed the license renewal applications of
stations in fifteen markets--five large, five midsize, and five
small markets. These markets were in the eight states with the
first stations that would have to follow the Act's logging
requirements for renewal. A total of fifty-eight stations'
applications were reviewed as part of the study.(note 87)
The study's findings were not positive. The information logged by the stations did not indicate their attempts to program for children. Few shows were being created to meet the Act's goals, and those broadcast were aired sporadically or at odd hours (after midnight, for example). And stations' "educational or informational programming" was often just the same old reruns or cartoons with new descriptions.(note 88)
1. Information Provided on Compliance
The report found that more than 25 percent of the stations
reviewed never logged the time, date, or length of the programs
they cited as fulfilling their duty to program for children.(note 89) The reason for this lack of
specificity is that the Act does not say what licensees must submit
at renewal time. With no set standards, the renewal submissions
reviewed by the CME ran from just one page to fifty pages.(note 90)
Many stations that did file more than a few pages were less than helpful in explaining what they had done to program for children. Some just listed programs shown, with no explanation of how these shows were educational or informational (or if they were for children at all).(note 91) But with no guidelines from the FCC on what licensees should submit, it should come as no surprise that the actual submissions were inadequate.(note 92)
Until 1993, the Commission seemed unconcerned with the quality of the submissions it was receiving from broadcasters. In 1993, however, the Commission delayed renewing the licenses of seven midwestern stations until more information was provided on the stations' compliance with the Act.(note 93) Out of some 320 renewal applications reviewed by the Commission since the Act became law, these seven stations were the first to receive greater scrutiny from the Commission.(note 94)
With President Clinton setting a more active, regulatory mode for the country and the government, the FCC may become more involved in enforcing the children's programming rules.(note 95) It may take this sort of involvement to bring broadcasters into compliance; until now there has been little to no incentive for them to change the shows they provide for children.
2. Timing of Children's Programs
The stations that did submit evidence of times and dates of
children's programs did little better. It seems that when
broadcasters do go to the trouble of showing an educational,
informational, interesting children's show, they show it at a time
when almost no child would be (or should be) watching television.
Of those stations that provided program times, children's news
shows were broadcast between 5:30 and 7:00 a.m. nearly 60 percent
of the time.(note 96) Other shows
were broadcast after midnight. Programs shown at more acceptable
hours, such as weekend afternoons, often were shifted from time
slot to time slot or, worse, frequently preempted.(note 97)
The Act sets no standards for when children's programming should run. Indeed, many in favor of the Act had hoped it would provide some variety beyond the usual Saturday morning fare.(note 98) Instead, the lack of standards has made it harder for children to watch shows geared for them.
3. Is G.I. Joe Educational?
Some broadcasters would argue that cartoons such as G.I.
Joe are educational. A New Orleans television station said
G.I. Joe covered "[i]ssues of social consciousness and
responsibility."(note 99) Other
shows used by broadcasters to meet children's programming needs
included Chip `n Dale Rescue Rangers, Super Mario
Brothers, and Yo Yogi!, where in one episode a character
catches a "bank-robbing cockroach" by "using his head, rather than
his muscles."(note 100) Santa
Claus Is Coming to Town, a Christmas special, is even
considered educational because it "answers some of the mysteries,
myths, and questions surrounding the legend of Santa Claus."(note 101)
It is unlikely that most people would consider these shows educational, or even informational, but broadcasters contend they are.(note 102) Plot summaries are twisted into moral lessons that supposedly teach good values. Worse, some stations are even willing to place all cartoons in the educational category.(note 103)
Even if broadcasters are not willing to go so far as to label cartoons educational, they still call them "pro-social."(note 104) Since the FCC has demanded broadcasters meet children's "cognitive/intellectual or emotional/social" needs,(note 105) broadcasters have generally focused on the latter--not that this has meant a change in what they broadcast. Instead, a "pro-social" program is one that shows any kind of "message," no matter how far one has to stretch to find it.(note 106) Even now, several years after enactment of these policies, children's programs still bear little resemblance to the FCC standards. For the fall 1993 children's TV lineup, ABC tried to push Tales from the Cryptkeeper--based on HBO's adult horror series--as a way to teach children "a wonder-filled morality lesson."(note 107)
Broadcasters even try to place all-age programs into these categories. While the FCC allows stations to use some general programming to meet their Act requirements, such shows are not alone sufficient.(note 108) Yet many stations in the CME report were found to have simply given lists of such programs without specific reference to how they filled the needs of children.(note 109) The kinds of programs listed were not always what most people would consider appropriate for children, either(note 110)--how many parents of young children would want them to be educated by Hard Copy?
It is easy to see, however, why the broadcasters sampled for this study acted this way. Nothing in the Act said cartoons could not be used as informational/educational/pro-social programming,(note 111) and some cartoons probably do meet those standards.(note 112) With so little to follow, most broadcasters assumed that they might as well list anything vaguely related to children.(note 113)
Broadcasters have given four reasons why they cannot immediately comply with the Act, especially with the slow economy.(note 114) Children's shows are often expensive to produce, yet they do not bring in much revenue. Broadcasters argue it takes time to create good children's programs, and two years is just not enough time to judge their efforts.(note 115) Also, some stations had to air cartoons because they had contractual obligations.(note 116) Finally, new programs are being produced, the CME study found,(note 117) but these programs are shown infrequently or at inappropriate hours for children to watch.(note 118)
C. The FCC Responds
The FCC began to look into these issues concerning children's
television after the CME report came out. Whether the Commission's
actions were taken out of shame, in response to public demand, or
as part of a new, more activist FCC under President Clinton is not
clear.(note 119) But it does
appear the Commission will take the Act more seriously in the
future.(note 120)
The first step the Commission took was to let broadcasters know they cannot count cartoons toward their educational programming requirement.(note 121) Educational means educational, the FCC said, although for the moment it is declining to go much beyond that for an explanation. A program designed to be educational will be in compliance; one that merely happens to have a buried message or a social theme will not fit the standard.(note 122)
The Commission also sought comments on the Act,(note 123) perhaps unsure of how it should handle a more regulatory stance. The FCC can impose more clearly defined or stricter rules, and may well do so.(note 124)
The Commission also signaled a renewed regulatory effort in holding up the license renewal applications of seven stations until they further explain their compliance with the Act.(note 125) It would be unusual for the Commission to withhold a license for something other than felonious acts,(note 126) but the threat of losing one's license will certainly have broadcasters thinking about how to better comply.
Broadcasters are concerned about the CME study and the recent FCC announcements, but they have little recourse. Congress strongly backs the idea of greater FCC intrusion into broadcasters' programming, especially where children are concerned. House telecommunications subcommittee Chairman Edward J. Markey (D-Mass.) stated, "Broadcasters, beware. The new era has begun."(note 127)
The broadcast industry may have to brace itself for the worst. At the time this Note was submitted for publication, a bill was to be introduced in the House by Representative Ron Wyden (D-Or.) that would require stations to broadcast an hour of preschool programming every week.(note 128) Their arguments that new programming takes time will meet with little success, considering that members of Congress already feel stations are taking too long to comply.(note 129) As one person testified at a 1993 hearing, it took the Public Broadcasting Service less than six months to produce quality children's television.(note 130) Broadcasters can only alienate their viewers--especially parents--by resisting governmental efforts to help America's future--its children.
Commentators express doubts that commercial broadcasters are capable of policing themselves.(note 131) Broadcasters gave in without much of a fight when the Act was passed in 1990, and they may have to do so again to avoid embarrassment and bad publicity. It appears that neither the government nor the public is on their side.(note 132)
III. Redesigning the Act to Better Meet Its Goals
The FCC recently asked for comments on the Children's
Television Act.(note 133)
Specifically, it asked for opinions on how the Commission might
better implement the Act, through new, revised rules and clearer
explanations of what the rules require.(note 134) Sometime in 1994 the Commission will
announce what it wants from broadcasters concerning children's
programming.(note 135) But based
on the problems with the Act already noted, it is likely the
Commission will regulate in three main areas: penalties, content,
and time.
A. Penalties Could Be Harsher
While the Act is noted for the wide latitude it gives
broadcasters, it also gives the FCC great freedom. For example, the
FCC may modify the advertising regulations at any time provided
that proper notice is given, public comment is permitted, and there
is "a demonstration of need."(note
136) The FCC also may consider broadcasters' advertising and
programming compliance when renewing licenses;(note 137) when violations occur there are no
restrictions on what type of penalties the Commission can impose.
So far, the FCC has reacted to violations by handing out
admonishments and fines,(note 138)
and by delaying the renewal applications of a few stations.(note 139)
If the Commission is serious about its renewed efforts to enforce the Act, then it will take advantage of its freedom and levy harsher penalties on violators. An admonishment seems appropriate in instances of small violations, as in the WTBS case.(note 140) But a heavy fine or license removal for repeat offenders would please supporters of the Act.(note 141)
The largest fine the FCC has handed down for a violation of the Act is $20,000.(note 142) While this is a fairly substantial amount, it is not enough to get a broadcaster's attention automatically. A station may find a fine of this size is worth it if it recoups the loss by selling more ads per hour than allowed or by programming to audiences other than children. A series of fines, however, might have greater effect. The FCC should follow up on the progress of the stations it has found not in compliance.(note 143) If it finds stations have not corrected their errors or are not programming for children, larger fines could be imposed.
When the Act first came into existence, the Commission stated it had the right to audit broadcasters randomly, but that it would not then do so.(note 144) Since that time, it has chosen to audit stations without telling them.(note 145) Until broadcasters show greater willingness to comply with the Act, the FCC could step up these audits, doing them more often and in greater detail. Everything Congress has said regarding the Act indicates it would support such efforts and any fines that result from them.(note 146)
Beyond just fines and admonishments lies broadcasters' greatest fear--the license removal. Currently license renewal is essentially a perfunctory act, with no licenses denied, and very few applications delayed.(note 147) If the FCC wants to force compliance with the Act, all it needs to do is introduce the specter of a license not being renewed to bring broadcasters in line.(note 148) This is a strong punishment, and one the Commission would not lightly impose. But for repeat offenders, it seems appropriate. A license to broadcast is granted so the broadcaster can program in the public interest. Congress has determined broadcasting for children is part of the public interest. If the broadcaster cannot meet these standards, license removal is an appropriate response.
Before the FCC takes a license away, it needs concrete evidence of the broadcaster's lack of compliance. The best way for the Commission to get this would be through the information provided by the station itself when it files for license renewal.(note 149) To make sure it is getting the information it needs, the Commission will have to create more detailed guidelines.(note 150) As previously discussed, there is no consistency in what broadcasters turn in to demonstrate their efforts to program for children.(note 151) To remedy this, the FCC could create a sample format for broadcasters to follow, letting them know when lists of programs are appropriate and when more detailed explanations are required. The Commission could also require broadcasters to explain why the show was broadcast when it was, and what audience the broadcaster was targeting.(note 152) Broadcasters could also be asked to keep separate lists of their efforts to program to children through all-age shows or how they complied by supporting other stations' programming. These areas could also be documented in detail, with explanations of how they show an effort to reach the child audience.
Obviously, compliance will take a great deal of effort on the part of broadcasters. But when faced with the prospect of losing a license, most will comply.
B. Further Definition of "Educational" Children's Television Is
Necessary
Before the Commission starts revoking licenses,
it needs to further define informational and educational children's
programming.(note 153) It took a
step in that direction when it announced that cartoons are not.(note 154) The Commission stated that
it wants stations to cite programs that are meant to be educational
and informational, not just those that happen to contain a lesson
or useful knowledge for children.(note
155)
One possible way to define educational would be to limit it to nonfiction programming.(note 156) Of course, this leaves out a wide range of fiction programs that have the power to educate or inform. Others have suggested that no commercially oriented programs count toward the requirement,(note 157) but that could remove shows like Sesame Street or Winnie-the-Pooh, shows that have been merchandised heavily due to their popularity, but that still have the power to educate.(note 158) The Commission could base its decision on whether the show was made around an already-existing toy or game (like Super Mario Brothers or G.I. Joe),(note 159) but that seems a rather arbitrary decision, sure to cut out some deserving programming while allowing in some overly commercial shows. Because of these problems, the Commission might best serve all interested parties by using the nonfiction definition of educational, perhaps allowing some fiction in under the "informational" banner.
Many supporters of the Act would like to see commercially oriented programs wiped out altogether.(note 160) While it is unlikely the Commission would go that far, it does have the power to create more regulations for program-length commercials. The Commission was given authority to make rules about such shows, but declined to adopt a very strict definition of what they are. While most activists would define them as any show built around a game or toy,(note 161) the Commission refers to them as "a program associated with a product in which commercials for that product are aired."(note 162) To avoid being one of these shows, all a broadcaster must do is not show a commercial for the toy during the program. But nothing stops a station from advertising the toy in the programs preceding and following the toy's show.(note 163)
If the Commission adopted the less restrictive definition of program-length commercials, broadcasters would face the possibility of having too many ads per hour because the entire program would be an ad. If the Commission wants to force broadcasters into showing fewer commercials and more educational programs, this would be a quick way to do it.
The Commission could also refuse to allow stations to count adult or all-age programs toward their requirement to provide educational programming for children.(note 164) The Center for Media Education report found broadcasters highlighting the news as well as all-age shows as being beneficial for children.(note 165) While news programs, both local and national, are undoubtedly educational for children sometimes, news shows certainly are not broadcast just for children. It is likely that many news programs do not make sense to younger viewers. The FCC ought to make clear that these kinds of programs can only be used to round out a broadcaster's programming for children. In addition, the FCC could require that a station show how news programming specifically benefits children before such programming would fulfill a station's educational requirement.(note 166) Such a rule would avoid the problem the Center for Media Education found in its study--stations listing shows such as Hard Copy or The Jerry Springer Show without saying which episode or broadcast was informational for children.(note 167)
Categorizing children's programming would help broadcasters create a good mix of programming types.(note 168) For example, educational programs could make up 30 percent of the children's programming requirement, with informational shows making up another 20 percent, entertainment programs filling up another 30 percent, and the rest left to the station's discretion. Placing limits such as these would prevent broadcasters from showing the same kind of programs over and over, and would perhaps force some creativity.
The FCC could also extend the Act to make age-group programming requirements.(note 169) One congressman has suggested forcing broadcasters to program to preschoolers one hour a week.(note 170) If Congress were willing to pass legislation for that age group, other age groups probably would not be far behind. It should be easy enough to divide children into age groups: preschool (2-4), early elementary (5-9), preteen (10-12), early teen (13-15), middle teen (16-18). Making such divisions might even make compliance easier for broadcasters, because it would give them a wider range of options for programming. These divisions would also further the Act's goal of promoting diversity of programming for children.
C. Showing Children's Television When Children Are
Watching
Content restrictions and regulations will not make
a bit of difference for children if broadcasters continue to run
educational children's television at hours when children are not
likely to be viewers.(note 171)
Therefore, the FCC needs to set guidelines for when children's
programming is broadcast. The Commission could be restrictive about
this kind of regulation, perhaps setting up a "children's viewing
hour" every night of the week. Or it could be more general and
simply say programs shown after a certain hour at night, say 10
p.m. on weeknights, would not be eligible for consideration at
license renewal time.(note 172)
The same rule would be applied to shows shown very early in the
morning; no programs before 7 a.m. could be used to show
compliance.(note 173)
If the FCC adopts regulations creating age-group programming categories, then times could be adopted to fit each category. This could allow more flexibility to broadcasters. Preschoolers could be targeted during the day, when they would more likely be at home; programs for older teens could be shown after school or even later at night on the weekends.
Rules like these could mean extra work for everyone involved. The FCC would have more difficulty monitoring stations, and stations would have more headaches trying to keep track of all the categories and times for each one. These rules certainly will not make compliance with the Act any simpler, but they might make children's broadcasting a little better for children.
IV. Problems with Creating More Children's Television
Regulations
More rules and regulations may sound like the
answer to the problems with the Children's Television Act, but
there is no guarantee the FCC will adopt such measures. First, the
Commission might not agree these suggestions would work, and even
if it did, it may not want to expend the effort. Implementing more
rules could require more supervision than the Commission could
handle. In these days of budget and staff cuts, there might not be
enough people or money to spend on monitoring broadcasters so
closely. While the Act is undoubtedly important to the Commission,
it is not the only regulation the agency has to administer. Perhaps
newer technologies and other areas of the communication world will
be of more pressing concern to the FCC.
Even if the Commission would like to implement a slew of new regulations, it might not be able to do so. Broadcasters are sure to rebel against strict rules, especially ones involving what kind of programming they show.(note 174) While the public may not side with broadcasters on these issues, it is possible courts will. Good intentions aside, the regulation of content and program timing may not pass constitutional standards.
A. The First Amendment Could Prevent Stricter Regulations of
Children's Television
The Act in its present form is
apparently constitutional. Broadcasters must air programming in the
public interest, because there are not enough broadcast outlets for
everyone to use.(note 175) The
rationale for this greater level of intrusion is "spectrum
scarcity"--the lack of opportunity for the general public to be
heard over the airwaves.(note 176)
Because not everyone can operate a broadcast station, those who do
may only do so by acting as a public trustee.(note 177) Congress and the FCC cannot tell a
broadcaster what to program, but they can stop or modify certain
kinds of programming where a substantial government interest
exists.(note 178) Congress
indicated that the protection of children from the evils of
advertising and the importance of educating American youth were
substantial enough reasons to create the Children's Television Act,
and broadcasters apparently did not feel overly burdened by the
Act.(note 179) While broadcasters
have complained about the restrictions imposed by the Act,(note 180) there has been no
litigation so far, probably due to the fact that the Act has not
yet required much action from stations.
A stronger version of the Act could lead to litigation, especially if the FCC imposes more content-based regulations. Rules that will not let broadcasters use cartoons to satisfy the children's programming requirement could be viewed as forcing stations to air a certain kind of programming, something much more direct and specific than the Act now requires.
Similarly, time limitation regulations of that kind force a broadcaster to air a certain kind of programming at a certain time, removing the broadcaster's right to choose what he or she airs. Broadcasters would undoubtedly see such a regulation as infringing on their First Amendment right to speak free from government coercion.(note 181)
Congress has not given the FCC the authority to interfere with what broadcasters say once they are licensed.(note 182) Courts, too, have noted that once the license is granted, the Commission must allow broadcasters their right to speak free from government control.(note 183) The only way the Commission can impinge on that right is to have the restriction narrowly tailored to meet a substantial governmental interest.(note 184)
Congress and the courts have found that the interest in protecting children is substantial.(note 185) The Act, as currently written, is apparently tailored narrowly enough to be constitutional. But more regulation could easily be seen as too broad because more content restrictions may interfere with what a broadcaster airs, yet might not improve children's television any more than the current rules do.
If one balances the broadcasters' right to program what they want against the government's interest in children, it is not clear that the government should win. It is a question of how substantial the government's interest is, especially if the interest is defined as educating children. Congress cannot promulgate a law inhibiting the broadcasters' right to program what they choose unless there exists a strong reason for doing so.(note 186) In addition, this power is only to be used when there is no other way to correct the problem.(note 187)
The main question to be answered is whether television is the cause or the solution to the problem Congress has identified. It is all very well and good to say children are the country's future, and it is important that they catch up with the children of other nations, but as one broadcaster has pointed out, why should broadcasters be responsible for educating them?(note 188) Congress cannot force broadcasters to become teachers. If education were the problem, then perhaps Congress should appropriate more money to the public school systems. There is no clear relationship between the aims of the Act and children's programming, which makes it difficult for Congress to substantiate its proposals for more regulation.(note 189)
The current rules of the Act place only an affirmative duty on the broadcast industry to program for children in some way.(note 190) It could be argued, however, that better defining that duty would not be content regulation at all, and therefore would not make the Act susceptible to constitutional challenge. Regulation of children's television may not be a limit at all, as it does not require any certain programming to be broadcast.(note 191) The FCC should not come under attack if it further clarifies the definition of educational and informational television. By proposing that cartoons, all-age shows, and adult news programs should not satisfy the children's programming requirements, no greater burden would be placed on the broadcasters than now exists under the Act. But if the FCC starts telling stations how many educational/informational shows they must program, and how often they may show entertainment for children, the law will be unenforceable. It is too great a restriction, and it will not clearly promote the government's interest in protecting children.
The same is true of time restrictions, other than the most basic ones. It is not too much to ask broadcasters to show programs for children at hours when they will be watching television. The Pacifica Court already decided that broadcasters may only air programs unsuitable for children when they will not be tuning in.(note 192) To require the reverse is surely no greater burden for broadcasters. It is common sense that the goals of the Act can never be met if children are not exposed to the programming designed for them.
But a regulation imposing strict time restrictions could be going too far. Setting specific times every day when programs for children must be broadcast takes away all freedom of decision. The interest in providing quality television for children is not so great that the government has the right to intrude this deeply into a broadcaster's decisionmaking process.
In no other area does the FCC tread so far into programming. The Commission has often told stations what they cannot show,(note 193) but time restrictions go much further. Such rules keep a broadcaster from showing a different program--one that might also have high quality and be of interest to another group. The FCC does not have the power or the right to set tight restrictions on when stations can program for children.
Whether Congress or the Commission can classify children by age groups within the Act's rules is a more interesting question. No substantial governmental interest for doing so has been put forward, but such an interest could exist if the FCC compiled data showing such regulation is important. However, the fact that different age groups have different needs would not be a sufficient governmental interest, unless it could be shown that the educational needs of certain age groups are currently not being met (which seems highly likely). More information would be required to prove such a theory.
The FCC could satisfy many viewers concerned with children's television if it adopted regulations to rid television of the much despised program-length commercial.(note 194) Commercial speech has less constitutional protection than other kinds of speech,(note 195) and therefore is more easily regulated. Adopting a tougher definition of the "program-length commercial" would certainly be within the government's interest, because the Act is designed to protect children from the dangers of commercials. While defining a "program-length commercial" as any show created around a toy is less narrow than the current definition, it is not overly restrictive. Even the toymakers admit such shows are just another way of marketing their products.(note 196)
The problem with regulating this way is that it discriminates between commercial shows and shows that were not originally commercial, but which now have toys to go along with them, such as Sesame Street. It does not seem consistent that Sesame Street can continue to be "educational" just because it was an educational program before it produced a line of dolls and toys, while G.I. Joe must be considered purely "commercial" because the toy came before the cartoon series.(note 197)
If the FCC were to institute a rule prohibiting programs created around established toys, marketers could easily subvert the rule by creating programs featuring a not-yet marketed toy. The toy company could then start selling the toy right after the show began to air. Of course, this action could be risky because the toy has not yet proven popular, but toymakers looking for more sales would probably do whatever they deem necessary to sell their products.
The potential failure of such a rule would likely keep the FCC from ever passing it. But the FCC could make other rules that perhaps limit the time and number of program-length commercials that could be shown. Such limitations would probably pass the "substantial governmental interest" test without placing too much of a burden on broadcasters. This type of rule would not stop broadcasters from showing commercially oriented cartoons; it would just limit the times they could be shown.
Many of the regulations suggested would likely survive constitutional challenge, but broadcasters might have one more valid argument. With the proliferation of media available--cable channels, videocassettes, and interactive television, to name a few--broadcasters could argue that not only is spectrum scarcity an obsolete idea, but so is the notion that children are not getting what they need from television.(note 198) Cable channels are full of kids' programs ranging from the Discovery Channel to the child-oriented Nickelodeon network. The FCC itself espoused such an idea back in 1985 when cable was available to an even smaller percentage of homes than it is now.(note 199)
Still, the risk that some children would not receive cable or have access to other media exists.(note 200) Supporters of the Act would not want to see the child audience divided into those who can afford educational television and those who cannot.(note 201) Until cable and VCRs become as common as telephones, this argument will not be taken seriously. Broadcasters must program in the public interest no matter what their actual competition is doing.
B. Problems with Content Definition
If content-based regulations were constitutional, they might
still be hard to enforce or, for that matter, write. Defining
educational television too narrowly would not serve the purposes of
the Act, because there would be no room for growth. Broadcasters
are not risk takers, so they probably would find the least
objectionable programming format and stick with it--forever.
Diversity of programming is not served by setting narrow limits.(note 202)
Of course, defining the Act broadly has not been successful either.(note 203) Finding the middle ground will be a difficult task for the FCC, especially when one considers that most of those making suggestions on how to enforce the Act have a vested interest in the final outcome.
Requiring too much educational programming could even cause a backlash among the viewers; children do not want to watch the same kind of show all the time any more than adults do. Driving them away from children's television might be helpful for their education, but not necessarily. Children might just watch adult programs instead.
While the Act encourages educational programming, it cannot go so far as to wipe out entertainment programs for children.(note 204) Television is not school, nor should it be. It has an incredible hold over people, especially children,(note 205) but not so great a hold that it must be taken over by the government and used only for educational purposes. The FCC must keep in mind that no matter how great the urge to regulate, the regulation must accomplish something. Regulations will not protect children unless they are artfully crafted to do so.
C. How Much Can the Broadcaster Bear?
With any regulations come market concerns. If the FCC forces
broadcasters to create new children's shows--shows without a built-
in commercial sponsor--how will the broadcasters pay for them?(note 206) The fact that stations
will have to create new shows--not rely on old reruns--will also be
costly.(note 207) Because of their
limited potential audience, these new programs will not have the
ability to generate profit as well as all-age shows.(note 208)
Over-the-air stations could lose out to cable television systems, which do not receive licenses and therefore cannot be so sanctioned for not following the Act.(note 209) If the audience did not watch the new educational programs, broadcast stations would lose advertising revenue.(note 210) The advertisers may go to cable if cable's audience grows and stations' viewers diminish.
In the past, the FCC has almost gone out of its way to ensure that broadcast television survives against the onslaught of cable television.(note 211) But broadcast television may be losing its favored position. A U.S. representative on the House telecommunications subcommittee stated that producing quality children's shows would be like a "payback" from broadcasters for all the benefits the industry has received in the past.(note 212) The era of broadcast protectionism could be over, and broadcasters may have to learn how to compete with cable. If the market will not support over-the-air television as well as it did before cable, broadcasters will have to scale down their industry.
Broadcasters could help themselves by using another section of the Children's Television Act to help pay for the new programs they must produce. The Act also established the National Endowment for Children's Educational Television, which provides grants to those wishing to produce educational programming for children.(note 213) The catch is that grants are given only to programs that will be aired on public or noncommercial television for two years after the show's creation.(note 214) After that time, the programs may be aired on commercial stations (as long as the programming is not interrupted with commercial advertisements).(note 215)
If Congress and the FCC decided to help broadcasters a little more, they could rewrite the endowment rules to provide some funding for commercial broadcasters. If Congress were serious about promoting educational television for children, all broadcasters should be able to receive funding to create such programming. Noncommercial stations may receive grants for children's programs because they lack the money to produce quality shows.(note 216) If commercial broadcasters could show they have the same problems, they should be able to receive some funding as well. Congress should help all broadcasters as long as the market cannot bear the costs of creating educational children's programming. As a result, it is not just the broadcasters who could lose in this market situation, but the children as well.
Conclusion
The future of the Children's Television Act remains uncertain.
The FCC's recent call for comments on how to implement the Act
indicates that even the Commission is not sure what should be done
to make television a more educational experience for young viewers.
Congress appears to want to create more rules for promoting
educational programs,(note 217)
but more rules will not necessarily solve the problems of the
overcommercialization of children's television and the lack of
quality shows for children.
Instead, better definitions of what broadcasters should be doing will help if the Commission can ever decide exactly what educational television includes. By refusing to count cartoons as educational programming, the Commission has made an important first step toward making television more than just entertainment. If the Commission makes broadcasters air educational programs at times when children will be watching, the FCC will have taken another step in the right direction.
The Commission may enforce its goals through the use of fines and the threat of license delay or removal. But if the Commission abuses its power and goes too far by creating rules no one can live with or implement, there will be litigation. Broadcasters will not tolerate having their freedom taken away, and courts will not allow restrictive rules to stand if the FCC cannot prove regulations are absolutely necessary.
Ultimately, a compromise between the Commission and broadcasters is likely. The Commission can gain concessions from broadcasters if they work together, and broadcasters can avoid court battles where they might win their right to free speech but lose respect from the public. Such an alliance led to the enactment of the law in 1990. The Commission must be careful, though, to make sure that a compromise has some meaning and use. If new regulations fail to help the cause of children's television, another generation of children could be lost.
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