PARTIAL DISSENT OF COMMISSIONER GLORIA TRISTANI

IN THE MATTER OF THE EXTENSION OF THE FILING REQUIREMENT FOR CHILDREN'S TELEVISION PROGRAMMING REPORTS (FCC FORM 398): Report and

Order and Further Notice of Proposed Rule Making

I strongly support the extension of this filing requirement. I also strongly support the modifications to FCC Form 398 that are designed to improve public access to the information contained in the form. Ensuring the availability of information to consumers and parents about children's television programs is a key obligation of the Commission and one that is shared with the broadcasters of such programs.

My partial dissent is very narrow and is rooted in the shared obligation with the broadcasters. Our rules require broadcasters to publicize the "existence and location” of the information about their children's television programs. Question 8 of the form we amend today asks broadcasters if they have complied with the requirement that they publicize the availability of this information. Question 8 is a yes or no question. Studies submitted in the record of this matter demonstrate that, despite the availability of Form 398, parents are often unaware of the existence of these reports and about which children's programs are educational and informational as well as the location of more detailed information about the programs.

To remedy this problem, and to respond to comments we have received, we should have amended Question 8 to require the broadcasters to state with specificity and in detail the efforts they have undertaken to make the information in Form 398 available to viewers and parents. Increasing public awareness of children's television programs is a key component of ensuring parents have the tools they need to choose. quality programs for their children. Today we declined to amend Question 8 and make Form 398 a better tool for empowering parents. On this point, I respectfully dissent.

By the Commission:

Commissioners Furchtgott-Roth and Tristani concurring in part, dissenting in part, and issuing separate statements; Commissioner Powell issuing a statement.

1. We issue this Notice of Proposed Rule Making (“Notice”) to seek comment on a range of issues related to the obligation of digital television (“DTV”) broadcasters to serve children. We focus in this proceeding primarily on two areas: the obligation of television broadcast licensees to provide educational and informational programming for children and the requirement that television broadcast licensees limit the amount of advertising in children's programs. Although we seek comment largely on challenges unique to the digital area, we also explore several issues that children's advocates have raised about children's educational and informational programming more generally.'

2. American children spend a considerable amount of time watching television. Recent data show that children in this country spend, on average, almost three hours a day watching television.? In view of the significant role that television plays in the lives of children, this medium has great potential to contribute to children's development. As Congress has stated, “[i]t is difficult to think of an interest more substantial than the promotion of the welfare of children who watch so much television and

1

In the following sections of this Notice, we seek comment on issues that arise in both the analog and digital broadcasting contexts: the section entitled "Definition of Commercial Matter," section D entitled "Promotions," and section E entitled "Other Steps to Improve Educational Programming.

2

See, e.g., Henry J. Kaiser Family Foundation, Kids and Media at the New Millenium at 20 (Nov. 1999). In contrast, children spend per day, on average, twenty-one minutes using the computer, twenty minutes playing video games, and eight minutes on the internet.

rely upon it for so much of the information they receive."3

3. For over 30 years, the Commission has recognized that, as part of their obligation as trustees of the public's airwaves, broadcasters must provide programming that serves the special needs of children. The Commission's efforts to promote programming for children began in 1960 with the statement that children were one of the several groups whose programming needs television licensees must meet to fulfill their community public interest responsibilities. 4 In 1974, the Commission instituted a wide ranging inquiry into children's programming and advertising practices, which led to publication of the Children's Television Report and Policy Statement (“1974 Policy Statement'). 5 The Commission concluded that broadcasters have “a special obligation" to serve children and stated its expectation that licensees would increase the number of programs aimed at children in specific age groups. The Commission also concluded that children are more “trusting and vulnerable to commercial 'pitches' than adults” and that children “cannot distinguish conceptually between programming and advertising. The Commission stated its expectation that the industry would eliminate "host selling” and product “tie-ins,” use separation between programs and commercials during children's programming, and honor the industry's voluntary advertising guidelines for children's programs.

8

4. Later in the 1970s, the Commission undertook further study of the availability of educational programming for children. Finding that the industry had failed to respond to its earlier call for improvements, the Commission considered formal regulation. In 1984, however, the Commission decided not to establish quantitative program requirements for broadcasters, relying instead on market forces to ensure a sufficient supply of educational programming for children." Following this decision,

3

S. Rep. No. 227, 101st Cong., 1st Sess. 17 (1989) (“Senate Report").

Report and Statement of Policy Re: Commission En Banc Programming Inquiry, 44 FCC 2303

(1960).

Children's Television Report and Policy Statement, 50 FCC 2d 1 (1974), affd., Action for Children's Television v. FCC, 564 F.2d 458 (D.C. Cir. 1977) (“1974 Policy Statement').

7

“Host-selling” is the use of program characters or show hosts to sell products in commercials during or adjacent to the shows in which the character or host appears.

8

Id. at 12-13. Under the voluntary advertising guidelines, broadcasters were to air no more than 12 minutes per hour of advertising on weekday children's programs and 9.5 minutes per hour on weekend programming

9

FCC, Television Programming for Children, A Report of the Children's Task Force (1979).

10

Notice of Proposed Rulemaking, Children's Television Programming and Advertising Practices, Docket No. 19142, 75 FCC 2d 138 (1979). The 1979 Notice proposed to require that all commercial television stations provide five hours per week of educational programming for preschool children (ages two to five) and two and one-half hours per week of educational programming for school age children (ages six to twelve). Id. at 148.

11

Report and Order, Children's Television Programming and Advertising Practices, MM Docket No. 19142, 96 FCC 2d 634 (1984), aff d, Action for Children's Television v. FCC, 756 F.2d 899 (D.C. Cir. 1985).

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the amount of children's educational programming aired by commercial television stations decreased markedly."? Also in 1984, the Commission repealed the commercial guidelines for children's programming," leading to an increase in the amount of commercial matter broadcast during children's programming."

5. In 1990, Congress enacted the Children's Television Act of 1990 (“CTA”)." The CTA imposes two principal requirements. First, commercial television broadcast licensees and cable operators must limit the amount of commercial matter that may be aired during children's programs to not more than 10.5 minutes per hour on weekends and not more than 12 minutes per hour on weekdays. Second, the CTA requires that, in its review of television broadcast renewal applications, the Commission must consider whether commercial television licensees have complied with the commercialization limits, and whether all television broadcast licensees have served “the educational and informational needs of children through the licensee's overall programming, including programming specifically designed to serve such needs.” In enacting the CTA, Congress found that, while television can benefit society by helping to educate and inform children, there are significant market disincentives for commercial broadcasters to air children's educational and informational programming. The objective of Congress in enacting the CTA was to increase the amount of educational and informational programming on television. "?

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6. The Commission first promulgated rules implementing the CTA in 1991. The Commission determined that the statutory children's programming commercial limits would apply to programs originally produced and broadcast for an audience of children 12 years old and under. Commercial matter was defined as "air time sold for purposes of selling a product.” In other words, the advertiser must give some valuable consideration either directly or indirectly to the broadcaster as an inducement for airing the material. "' The Commission also reaffirmed and clarified its long-standing policy that a program associated with a product, in which commercials for that product are aired, would

12

Ellen Wartella, Katherine Heintz, Amy Aidman, and Sharon Mazzarella, Television and Beyond: Children's Video Media in One Community, Communication Research (1990); Dennis Kerkman, Dale Kunkel, Alethea Huston, John Wright, and Marites Pinon, Children's Television Programming and the "Free Market" Solution, Journalism Quarterly (1990).

13

Report and Order, Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Logs for Commercial Television Stations, 98 FCC 2d 1076 (1984).

15

Children's Television Act of 1990, Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S.C. $8 303a, 303b, 394. The Senate Report on the CTA cited the Commission's 1984 decisions as precipitating factors in the enactment of the CTA. See Senate Report at 4-5.

18

Report and Order, In the Matter of Policies and Rules Concerning Children's Television Programming, MM Docket Nos. 90-570 & 83-670, 6 FCC Rcd 2111, 2112 (1991), recon granted in part, 6 FCC Red 5093 (1991).

cause the entire program to be counted as commercial time (a “program-length commercial”)."9 Television licensees are required to certify their compliance with the commercial limits as part of their license renewal application, and must maintain records sufficient to permit substantiation of the certification.2

20

7. In August 1996, the Commission adopted its current educational programming rules enforcing the CTA.” The Commission's rules include several measures to improve public access to

21 information about the availability of programming "specifically designed” to serve children's educational and informational needs (otherwise known as “core” programming). These measures include a requirement that licensees identify core programming at the time it is aired and in information provided to publishers of television programming guides.22 Licensees are required to designate a children's liaison

a at the station responsible for collecting comments on the station's compliance with the CTA.” Licensees

23 must also prepare and place in their public inspection files a quarterly Children's Television Programming Report identifying their core programming and other efforts to comply with their educational programming obligations.

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8.

In addition, our rules establish a definition of “core” programming. “Core”

19

In the CTA, Congress reaffirmed the Commission's policies regarding separation of programming and commercial material, host-selling, tie-ins, and other practices which unfairly take advantage of the inability of children to distinguish between programming and commercial content.” S. Rep. No. 227, 101st Cong., 1st Sess. 22 (1989).

20

Broadcasters who cannot certify compliance must explain in their renewal applications all instances during their license terms in which they have exceeded the commercial limits. The Commission has admonished or fined licensees for commercial overages. The level of sanctions has been based on the number of overages, the length of the overages, and the period of time over which the overages have occurred.

21

See Report and Order, Policies and Rules Concerning Children's Television Programming, MM Docket No. 93-48, 11 FCC Rcd 10660 (1996) ("Children's Programming Report and Order"). The Commission first adopted rules implementing the CTA's educational programming mandate in 1991. These rules included a very flexible definition of educational programming, did not establish quantitative guidelines regarding the amount of educational programming licensees were required to provide, and did not include measures designed to inform the public about educational programming. Within a few years after these initial rules took effect, questions began to be raised regarding the effectiveness of the new rules, and in particular about the content of the programs stations claimed were educational.

24

For an experimental period of three years after the effective date of the 1996 rules, the Reports were required to be filed with the Commission on an annual basis, and can be accessed by the public through the FCC's children's television webpage. The Commission has adopted a Report and Order and Further Notice of Proposed Rulemaking today that extends indefinitely the requirement that Children's Television Programming Reports be filed with the Commission, requires that they be filed quarterly rather than annually, makes certain changes to the form, and seeks comment on whether to require that broadcasters post the reports on their own websites. See Report and Order and Further Notice of Proposed Rule Making, In the Matter of Extension of the Filing Requirement for Children's Television Programming Reports (FCC Form 398), MM Docket No. 00-44, FCC 00-343 (rel. Oct. 5, 2000).