In the Matter of Policies and Rules Concerning Children'sTelevision Programming Revision of Programming Policies for Television Broadcast Stations

FCC News Release
Full text of Notice

MM Docket No. 93-48 FCC, 10 FCC Rcd 6308; 1995 FCC LEXIS 2340
(1995)

Reason for Rule Making

• Congress enacted the Children's Television Act of 1990 ("CTA") to "increase the amount of educational and informational broadcast television programming for children."
• 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 act as a public fiduciary, obligated to serve the needs and interests of its area."
• 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.

Principles and Proposals

1. Judgments of the quality of a licensee's programming, educational or otherwise, are best made by the audience, not by the federal government.

• 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.

2. Our rules and processes should be as clear, simple, and fair as possible. Accordingly, we also propose to take one of the following three types of action:

• 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.

• 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)

• 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,

3. 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.

What is "Children's Programming"?

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.

• 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.
• 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.

"Core" Programming

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.

• Any program which is claimed to be "specifically designed" to meet children's needs have education as "a significant purpose."
• We tentatively propose to credit as core programming children's educational programs aired between 6:00 a.m. and 11:00 p.m.
• 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.
• We are also inclined to require that core programming be of substantial length.
• We propose that stations identify "core" programs as educational and informational at the time they are aired.

5. First Amendment Issues

• 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.

• 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.

• 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.

7. License Renewal

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.

8. Program Sponsorship

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.

Separate Statement of Commissioner James H. Quello

The bad news is, two of these three options, quantitative programming standards and probably processing guidelines, are First Amendment time bombs waiting to explode in a court of law.... While the Chairman and Commissioners were advised by our General Counsel that quantitative programming standards or processing guidelines would pass constitutional muster, I beg to differ.