Under Chairman Ajit Pai, the Federal Communications Commission has made some remarkable strides in reviewing and moving to repeal a host of burdensome regulations that have outlived their usefulness. Media ownership rules like the newspaper/broadcast cross ownership ban come to mind, as do the Commission’s highly inflammatory efforts to roll back the enforcement of net neutrality under Title II.
The Commission continues to forge ahead. The next salvo may well be the initiative announced by Chairman Pai to review the rules governing educational and informational programming for children aired by broadcasters, known as the “Kid Vid” rules. Commissioner Michael O’Rielly has agreed to oversee the review of these regulations.
The story of the Kid Vid rules is a familiar one, at least in its broad strokes. Congress enacts legislation to address a perceived problem, in this case deficiencies in broadcast programming aimed at children (Children’s Television Act of 1990). The FCC carries out its obligation to issue regulations implementing the legislation (Policies and Rules Concerning Children’s Television Programming, 1991).
As time goes on, the FCC modifies the rules every few years to add more detailed requirements (beyond what Congress had envisioned or directed) and expands the scope of the rules to encompass the new technologies that have inevitably come along. Periodic attempts to relax the rules are quashed by politicians (whose motives are strangely oblique) and special interests (whose motives are painfully obvious). If a repeal movement gains enough momentum to succeed, it is met by a fusillade of opposition. Note: The Kid Vid review has not reached this last stage – yet – but there is no reason to think it won’t.
One of the principal areas of scrutiny in the upcoming review will be the requirement, enacted in 1996 modifications to the rules, that broadcasters air an average of at least three hours of children’s programming per week. This requirement includes lengthy descriptions of what kind of programming does or does not count toward the three-hour quota, plus burdensome record-keeping and reporting requirements for commercial broadcasters.
In a blog published Jan. 26, 2018, Commissioner O’Rielly outlines a number of common-sense reasons for conducting this Kid Vid review. His main points can be summarized very briefly here:
Great children’s programming exists elsewhere. We have cable networks like Disney Junior, Nick Jr., Nickelodeon, and Universal Kids. Children’s programs are carried by over-the-top providers like Netflix, Amazon, and Hulu, and by subscription services like HBO. The trend in children’s programming is toward content that is interactive, available on a variety of platforms, and accessible on demand. PBS has launched a wealth of interactive programming, including its 24/7 PBS Kids multicast subchannel – which is expected to cover 90 percent of U.S. TV households. Children’s programming is part of the PBS mission and PBS will continue to provide that programming even without a government mandate. It’s unmistakably clear that kids’ content on commercial TV stations has become a tiny part of a very large pie.
There is no scientific proof that the current rules enhance children’s development, yet the rules DO have real-world consequences. For example:
Local stations have less time to broadcast programming that viewers might desire more than kids’ programs. Other types of programming could actually be more responsive to local needs and serve local communities better. According to the NAB, some stations have preempted local newscasts to comply with the Kid Vid requirements.
The rules have the unintended consequence of killing shorter and infrequent kids’ programming. Only programs at least 30 minutes in length and broadcast on a regular basis count toward the three-hour quota. Thus, there is no incentive to create and broadcast programs that are less than 30 minutes long, that are one-time specials, or that are broadcast occasionally. Even the highly acclaimed “ABC Afterschool Specials” wouldn’t count because they weren’t regularly scheduled.
The rules impose costly and burdensome paperwork requirements on broadcasters. Commercial broadcasters are forced to keep detailed and extensive records of their children’s programming, ostensibly so that parents can consult these records to inform themselves about program offerings. But this has become a ludicrous – and unnecessary – requirement in an age of digital information and on-screen program guides.
Kid Vid regulations interfere with the development of Internet content. The media world has changed completely since the Children’s Television Act (CTA) became law – during a bygone era when the Internet was not a significant force in children’s programming. But today, as Commissioner O’Rielly notes: “Spending countless time on Kid Vid rule compliance and the Kid Vid commercial limitations on websites and host selling prevents some broadcasters from dedicating additional resources to these sites and keeps others from investing at all.”
It might be beneficial to recall that the primary intent of the CTA was to curb the commercialization of children’s television by putting limits on TV advertising. As one of the findings in Title I clearly states, “special safeguards are appropriate to protect children from overcommercialization on television.” The Act sets no requirement for the amount of children’s programming to be broadcast. The three-hour quota was a later invention of the FCC. The CTA’s only reference to time deals with commercials: “[E]ach commercial television broadcast licensee shall limit the duration of advertising in children’s television programming to not more than 10.5 minutes per hour on weekends and not more than 12 minutes per hour on weekdays.”
With this in mind, we offer two modest suggestions as the Kid Vid review gets underway. First, return to the Children’s Television Act and focus on the intent of this underlying legislation. Is the premise of the legislation still valid? Distinguish this from all of the other aspirations, goals, requirements, expansions into other technologies, and everything else the FCC has layered on throughout its many iterations of Kid Vid regulations. How much of this added baggage is really necessary and/or still relevant today?
Second, be mindful of the First Amendment. The FCC has long contended that its Kid Vid rules do not run afoul of the First Amendment because (a) broadcasting is subject to a lesser degree of First Amendment protection; and (b) provisions related to advertising, host selling, displays of website addresses, etc. fall within the realm of commercial speech and thus are also subject to a lesser First Amendment standard.
However, even taken together, these assertions do not give the FCC a blank check to downplay First Amendment scrutiny. At a minimum, for example, any Kid Vid provisions that relate to websites and that survive the FCC review must be examined to see if they truly are not more restrictive than necessary to achieve the government’s asserted interest in protecting children from overcommercialization. A thorough constitutional analysis might yield some surprising results.
In his blog, Commissioner O’Rielly concludes that “it is high time the Commission consider whether the Kid Vid rules are still necessary.” As he correctly observes: “At the very least, there are substantial portions of these rules that can be rolled back or reconsidered.” We strongly agree. We urge the Commission to proceed expeditiously in a way that is mindful of children’s needs, the current media landscape, and the First Amendment.
Richard T. Kaplar is Executive Director of The Media Institute.