A 'pay or play' experiment to improve children's educational television.

• Author: Levi, Lili

1. INTRODUCTION II. THE HISTORY OF THE FCC's CHILDREN'S EDUCATIONAL TELEVISION PROGRAMMING RULES III. THE CONSTITUTIONALITY OF THE FCC's CHILDREN'S EDUCATIONAL TELEVISION PROGRAMMING RULES IV. THE EFFECTIVENESS OF THE FCC'S APPROACH A. Regulatory Goals in Tension B. National Education Policy? C. Considerations of Regulatory Scarcity D. The Empirical Evidence So Far--Mixed Outcomes E. Explaining the Study Results 1. Broadcaster Incentives and Market Developments. 2. FCC Enforcement Limitations 3. Audience Factors V. "PAY AN E/I FEE OR PLAY"--AN ALTERNATIVE MODEL FOR PROMOTING QUALITY CHILDREN'S EDUCATIONAL PROGRAMS ON TELEVISION A. Five Evaluative Objectives B. The "Pay" Prong: E/I Fees To Fund Public Television's Children's Eli Programming C. The "Play" Prong: Bounded Discretion VI. CONCLUSION I. INTRODUCTION

   The issue of child welfare is again at center stage in electronic media policy discussions both in Congress and at the FCC. The Children's Television Act of 1990 (CTA) is currently the operative legislation, designed to increase educational programming and reduce commercialization in children's television. (1) Last summer, the Senate Commerce Committee held a hearing, "Rethinking the Children's Television Act for a Digital Media Age," (2) to assess "[h]ow well the [Children's Television Act] has worked, and how it can be updated to reflect the new digital media market." (3) Presumably in response to congressional interest, the FCC has opened an ambitious and broad-ranging inquiry into children and the electronic media. (4) This proceeding--capaciously titled In the Matter of Empowering Parents and Protecting Children in an Evolving Media Landscape--is ongoing and focuses, inter alia, on the adequacy of the educational content being offered for children across electronic media platforms. (5)

   The FCC has been attempting to encourage broadcasters to air quality children's educational television for almost fifty years. The modern story began in 1996, when the FCC, concluding that broadcasters had not taken the CTA seriously, adopted a processing guideline under which a broadcast station airing a minimum of three hours per week of core children's educational or informational (E/I) programming as part of its public interest obligations would receive expedited, staff-level license renewal review. (6) The FCC also defined core children's E/I programming, for the first time, as regularly scheduled weekly programming of at least thirty minutes in length, aired between 7:00 a.m. and 10:00 p.m., and specifically designed to serve the educational and informational needs of children sixteen years of age and younger. (7)

   A decade later, in recognition of the fact that digital transmission would allow each broadcaster to multicast several programming streams, the FCC extended what had come to be known as the "three hour rule" to digital broadcasters--so that stations would air an additional, proportional amount of E/I programming on any free digital content streams they chose to transmit. (8) Throughout, the agency also limited the amount of commercial content that could be aired during children's programming.

   Despite the passing of more than a decade since the adoption of the original children's television regime, neither the effectiveness of the rules nor their constitutionality has been established. The empirical record, as it stands, is thin. (9) The show Winx Club has been claimed to be core educational programming. Legal scholars have not recently attempted to analyze the effectiveness of the FCC's approach in today's radically changed media market. (10) And because all the E/I television rules were adopted through FCC negotiation with broadcasters and children's advocates, (11) the rules were never subjected to judicial review.

   This Article takes the opportunity recently offered by Congress and the FCC to assess the current regime and recommend policy changes. With respect to the constitutional question, the FCC's approach would likely pass First Amendment scrutiny. Although it is an important cliche of modern free speech doctrine that the government cannot constitutionally compel speech, (12) broadcast regulation traditionally has been permitted more than the usual constitutional leeway, (13) children have received special protection, (14) and the children's educational television rules have been (and can be) structured to avoid formal compulsion. (15)

   That it likely would be found doctrinally acceptable, however, does not resolve the question of whether the FCC's current approach to children's educational television is desirable as a matter of media, social, or educational policy. The articulated regulatory justifications for the rules contain unrecognized and underanalyzed tensions. And questions arise if we frame the rules not as the FCC does--a socially beneficial attempt to improve public education and inculcate a common culture in today's youth, regardless of the incommensurability of their diverse local educational experiences--but as a virtually hidden federal educational initiative outsourced to a private sector primarily responsive to commercial incentives.

   The empirical studies of children's educational television since the adoption of the FCC's rules disclose mixed results. (16) Although most broadcasters appear to be formally complying with the FCC's rules, according to unofficial, non-FCC studies, the evidence shows a noteworthy decline in the amount of children's E/I programming and a consistent shunting of such programming to weekend mornings. Moreover, existing studies question the educational quality of a significant amount of the programming being broadcast over the air. (17)

   Three factors can explain these results: broadcasters' economic incentives, administrative limitations triggered by values in tension, and characteristics and preferences of both child audiences and their parents. Changes in the modern marketplace--the expansion of the global marketplace for programming to international outlets, the growing merchandising associated with at least some children's programming, and the transformation of children into a commodity-purchasing demographic for advertisers--have not eliminated the reality that children's educational programming is still largely unprofitable for broadcasters. The commercial, advertising-supported broadcast system will not, on its own, produce notable amounts of high-quality children's educational television programming. (18) Especially in light of the production expenses of high-quality E/I programming and the FCC's limitations on advertising during children's television programming, (19) most E/I programming will not be self-supporting. Moreover, commercial broadcast programming is facing increasing competition from the array of educational offerings on PBS, cable, and the Internet. (20) Particularly as the declining status and profits of over-the-air television stations lead to an increasing concern with the bottom line, (21) at least some broadcasters will predictably undermine the FCC's goals by steering too close to the entertainment line in their compliance with the E/I rules. Others will focus on the kinds of educational programming--such as "pro-social" rather than "cognitive" shows--that are more likely to generate greater commercial support. (22) Query whether this is the kind of programming that can best fill the gaps in public education noted by Congress and the FCC in justifying the CTA. These realities suggest that the FCC should rethink its commitment to the Sisyphean task of attempting to squeeze quality children's educational programming from entities whose commercial imperatives push in the opposite direction. (23) Regulating against the pressure of self-interest is unlikely to lead to first-best results. When good results occur, regulation is unlikely to be the principal cause.

   The anticompliance pressure likely to be generated by broadcasters' economic incentives will, in turn, increase the FCC's transaction costs of tracking and assessing compliance. More problematically, the FCC's enforcement history in this area already reveals delay and enforcement limits best explained by regulatory ambivalence. Perhaps because of its concerns about trenching on broadcasters' expressive rights, and/or because of differences regarding qualitative programming assessments even by experts, the FCC has not engaged in extensive, intensive, or timely enforcement of its children's programming rules. It has let slide claims that shows like Saved by the Bell satisfy E/I requirements, taken a leisurely approach to empirical study, and delayed for years the resolution of still-pending test claims of noncompliance. (24)

   The final factor in this policy assessment is the preferences and viewing patterns of parents and children--the audience. Studies of audience behavior show that, because children are largely "destination viewers" and because parents' use of the television as babysitter requires some level of programming predictability, it will be very difficult for broadcasters to compete for children's attention with the niche children's programming channels on cable. (25) Moreover, the evidence shows that many parents are not aware of the FCC's E/I rules and do not understand the E/I notifications provided to guide their viewing choices. (26) This is exacerbated by the reality that most television guides today do not publish the relevant information even if broadcasters provide it. (27)

   Airtime programming decisions are a zero-sum game. If all broadcasters in a market have to provide children's educational programming on all of their free program streams, they will be displacing some other kind of content that might otherwise air. The question then is whether a regulatory policy that creates significant incentives for the airing of such programming--even when the audience for it is already largely wedded to cable and public television--is unduly...