NEW KID VID RULE: AN ANALYSIS OF THE FCC'S DEREGULATION OF THE CHILDREN'S TELEVISION ACT.

Author:Rosen, Melanie M.
  1. Introduction

    Saturday morning cartoons are a pastime that many children of the twenty-first century do not remember. (1) Other than sleeping, in 1980, television was the number one activity that children in America took part in. (2) In 1990, Congress enacted the Children's Television Act ("CTA" or "Kid Vid Rule") to ensure the educational needs of children were being met by regulating broadcast television. (3) Research has shown that children continue to steadily watch television more than any other activity, but now children have more ways to watch television than ever before. (4) With Over-The-Top ("OTT") applications and services, children can now stream television shows from their cellphones, computers, or television sets using a connected device. (5) To keep up with the modernization of television, Commissioner Michael O'Reilly is proposing that the Federal Communications Commission ("FCC") amend the CTA to give greater flexibility to broadcasters by allowing broadcasters to air a host of children's programs on alternative networks. (6)

    Television not only entertains, but it also educates and informs. (7) Educational television programs are one way to positively influence children. (8) The CTA'S main purpose is to mandate that broadcasters serve the educational and informational needs of children. (9) Yet, broadcast networks are not the only channels with children's educational programs; for example, cable channels such as Disney and Nickelodeon are geared solely for children. (10) These channels have become replacements for broadcast networks needing to air these types of educational programs. (11)

    The FCC'S proposal to deregulate the CTA has caused much debate about whether the proposed amendments are in the best interest of children. (12) The FCC Commissioner has argued that the CTA is outdated and should be deregulated because it is regulating a form of television that is no longer being utilized by most children. (13) The way children watch television is more technologically advanced than ever before. (14) Nonetheless, groups against the deregulation of the CTA have argued that the 2018 Notice of Propose Rule Making ("NPRM") is ignoring low-income families, specifically by not quantifying educational programming as opposed to entertainment or considering the commercials and advertisements on OTT services. (15)

    The revision of the CTA in response to the increased use of OTT services is a big step in the right direction. (16) The main purpose of the CTA is to "enhance the education of children through the creation and production of television programming specifically directed toward the development of fundamental intellectual skills." (17) Amending the CTA to give broadcasters greater flexibility in how they broadcast children's programming will not deter from developing these skills. (18) Therefore, the proposed FCC Kid Vid Rule change does not neglect children because it addresses the modern challenges posed by oTT services, and keeps in mind the obligation to protect and educate all children.

  2. History

    1. Before the Children's Television Act of 1990

      In 1960, children's programming became scrutinized through a public interest standard. (19) Regardless, networks continued to struggle with enforcing quality children's programming because of commercial pressures. (20) The lead media advocacy group, Action for Children's Television ("ACT"), began pressuring Congress to act and regulate children's television programming. (21) The FCC initiated a rulemaking in 1970, which in 1973 led to the National Association of Broadcasters ("NAB") voluntarily choosing to separate commercials from programming and ban host-selling. (22) The FCC did not implement any specific regulations, but did issue the 1974 Policy Statement and declared that "the broadcaster's public service obligation includes a responsibility to provide diversified programming designed to meet the varied needs and interests of the child audience." (23)

      The Commission sought for broadcasters to provide educational programming for children, increase the number of children's programs targeted for specific age groups, and improve scheduling while limiting commercialization. (24) The FCC accomplished these initiatives through self-regulation. (25) When self-regulating, it was up to the stations to determine if the programming needs of children were being met, and if not, to then increase children's programming. (26) In 1979, the Commission's Children's Television Task Force ("Task Force") concluded that broadcasters had complied with the commercial limits adopted in 1974, but the industry was not following the programming guidelines. (27) Nevertheless, the FCC's 1984 Order concluded that when relying on the video distribution industry as a whole, a mandatory quota for children's programming was unnecessary. (28)

      Furthermore, Mark Fowler was appointed as Chairman of the FCC in 1984, where he began repealing the commercialization guidelines. (29) This deregulation resulted in a dramatic decline in children's programming with an increase in advertisements. (30) The FCC was under the impression that if the public needed more quality programming, then the market would reflect that need. (31) The FCC received immense push-back from child advocacy groups and forced Congress to reexamine the Commission's 1984 Order. (32) The Commission issued a Further Notice of Proposed Rule Making and Notice of Inquiry, but took no additional action until Congress enacted the CTA in 1990. (33)

    2. The Children's Television Act of 1990

      In 1990, Congress passed the CTA in an attempt to implement voluntary compliance procedures for broadcasters to regulate what they aired on television. (34) The CTA aimed to increase the quantity and quality of informational and educational broadcast television programming for children. (35) For the FCC to maintain the goal of improving children's programming, the CTA was divided into two divisions: (1) actual programming content, and (2) maintaining that commercial television licensees comply with the content requirement. (36) The CTA also imposed advertising limits that applied to all children's programming and not just educational programming. (37) The CTA broadly defined the educational program requirement as programs directed for children sixteen and under that furthered the positive development of children in any way. (38)

      In 1991, the FCC implemented the newly enacted CTA. (39) Yet even with the implementation of the CTA, television was still considered "junk food for the mind." (40) Programs that were considered "FCC friendly" were placed in time slots not plausible for children to be watching television. (41) Public interest groups and legislators greatly criticized the FCC's failure to impose strict compliance guidelines and standards for broadcasters. (42) Further, the implementation of the CTA did not produce an increase in quality educational programming that Congress intended. (43)

    3. 1996 "Core Programming" Rules and Processing Guidelines

      In 1996, the FCC passed regulations designed to put "teeth" into the CTA. (44) The FCC adopted several public information initiatives to ensure parents understanding of educational and informational ("E/I") programs. (45) The FCC believed that if parents had more knowledge about the E/I programs, this would attract a larger audience, and in turn, would increase the incentive for broadcasters to air more educational programs. (46) The public information initiatives required broadcasters to air educational programs, publicize quarterly reports, and provide on-air identification of the core programs. (47) Public information initiatives allowed the Commission to "rely more on marketplace forces to achieve the goals of the CTA." (48) Broadcasters and local communities benefited from these initiatives because it allowed parents to work directly with broadcasters without government intervention. (49)

      The FCC also enacted the 1996 Core Programming Rules and Guidelines with the CTA. (50) The Core Programming rules were adopted to help guide broadcasters in producing E/I programs to satisfy the developmental educational needs of children. (51) The FCC mandated that broadcasters aired three hours of Core Programming each week. (52) Broadcasters still had some flexibility as to what programs they aired, but the programs had to specifically adhere to the Core Programming guidelines. (53) The Commission also created an incentive for broadcasters if they wanted to have their license renewal applications expedited; they had to comply with the three-hour Core Programming mandate. (54)

      Under the three-hour Core Programming safe harboring rule, the Media Bureau staff can authorize the approval of a licensee's renewal application as long as the licensee aired the benchmark requirement of approximately three hours per week of Core Programming. (55) Renewal applications are put into two different categories, Category A or Category B. (56) Category A is more commonly used for renewal purposes because of its simplicity. (57) if a licensee applies for Category B, then they are not required to reach the three-hour per week requirement, and instead must demonstrate that their variety of E/I programs makes up for their lack of three-hours of Core Programming. (58) Because of the uncertainty as to how much Core Programming must be provided, licensees rarely use Category B. (59)

    4. 2004 Digital Broadcasting, Preemption, and E/I Symbol Requirements

      In 2004, the Commission addressed matters pertaining to two areas: (1) the obligation of broadcasters to provide E/I programming, and (2) the requirement that broadcasters protect children from inappropriate and excessive commercials. (60) Amendments to the CTA were made to reflect changes in technology. (61) For instance, broadcasters were beginning to transition from analog television to digital television ("DTV"). (62) DTV was considered advanced broadcast...

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