In September, after years of argument, debate, litigation, and, in the end, dialogue and compromise, the Federal Communications Commission approved far reaching guidelines for children's television in the digital age. A diverse coalition of negotiators submitted these rules to the FCC, including Children Now, the American Academy of Pediatrics, the National Parent Teacher Association, Turner Broadcasting, Time Warner, Viacom, NBC, Discovery, CBS, and Disney. After a relatively short period of public notice, the Agency approved them.

Two things are at stake in this proceeding; first, the health, both mental and physical, of our children. As FCC Commissioner Deborah Taylor Tate has observed, the inherent inability of children to tell the difference between commercials and reality, "combined with the prevalence of unhealthy foods and a more sedentary lifestyle have created a perfect storm that has made childhood obesity a nationwide problem."

In addition, the subtlest rephrasing of any of these rules can add or subtract millions of dollars in profits for corporate media the advertisers they serve.

And so it should come as no surprise that the new children's digital TV rules came after a long, hard struggle. "We had moments when I didn't think that we were going to reach agreement because everybody had something important at stake," former FCC Commissioner Gloria Tristani told LLFCC in an interview about the rules.

LLFCC reporter Carmen Ausserer outlines the history of these guidelines and their most salient points.

In 1990, the Federal Communications Commission passed the first of a series of rules establishing regulations for children's television. More recently the FCC has expanded those rules to deal with new challenges posed by digital television.

Here is a summary of the 1990 rules, followed by a more in-depth description of the Second Order on Reconsideration and Second Report and Order (Second Order), the most recent rules, adopted by the FCC on September 26, 2006.

Background

The FCC created these rules because children in the United States view an enormous amount of television. The Second Order notes that children in the U.S. watch, on average, nearly three hours of television each day. More than half have televisions in their bedrooms (Second Order, II.4). The gradual transition from analog to digital television, scheduled to be completed by February 2009, has prompted the latest changes to the preexisting rules.

As stated in the Second Order, "The rules and policies adopted herein will serve the public interest by both protecting children from excessive and inappropriate advertising on television and ensuring an adequate supply of children's educational programming" for the transition to digital TV (III.E.51).

Congress first tackled this problem when it passed the Children's Television Act of 1990 (CTA). The CTA ruled that broadcasters and cable operators could not air over 10.5 minutes of "commercial matter" per hour on weekends nor over 12 minutes per hour on weekdays (II.6). "Commercial matter" means the airtime a broadcaster sells, which is used to sell a service or a product, and did not include promotions for television shows [III.E.46].

The CTA also set up a system in which the FCC makes sure that television broadcast licensees serve the "educational and informational needs of children through the licensee's overall programming, including programming specifically designed to serve such needs" (II.6).

In its 1996 Report and Order, the FCC built on the CTA, requiring broadcasters to air a minimum of three hours each week of programming designed "to serve the educational and informational needs of children" under age 16 (II.7). These shows, known as "core programming," had to air once a week, with the FCC regulating on a case-by-case basis if the broadcasters met the guidelines and the amount of preemptions (moving the show to a different time slot) allowed.

The Commission updated its regulations with a 2004 Order. This controversial array of rulings prompted numerous protests and petitions for reconsideration and judicial review (II.9). Because of this, the FCC delayed the implementation of much of the 2004 Order (II.10).

The 2004 Order tried to address many issues raised by digital TV, particularly the ability children will have to access Web sites while watching digital programs. The major rule changes and additions included:

• A proportional core programming rule: Because digital technology offers broadcasters the opportunity to "multicast," allowing them to broadcast on multiple stations, the FCC required digital broadcasters who multicast to increase their core programming at a rate "roughly proportional" to their analog broadcasts - approximately three hours per week for each additional 24-hour station (II.8).
• 50 percent of core programming shown on multicast stations must not repeat programs already aired during the same seven-day period (III.A.15).
• A 10 percent limit in each calendar quarter on the number preemptions allowed, which means the numbers of times a broadcaster can bump core programming from its time slot, except if it is bumped by breaking news (III.B.25).
• Internet Web sites displayed on shows aimed at children ages 12 and under must pass a four-prong test (the "Web site rule"). The linked Web site page must:
  1. Offer "a substantial amount of bona fide program-related or other noncommercial content;"
  2. Not be "primarily intended for commercial purposes, including either e-commerce or advertising;"
  3. Clearly mark its home and menu pages to "distinguish the noncommercial from the commercial sections;"
  4. Not be used "for e-commerce, advertising, or other commercial purposes (e.g., contains no links labeled 'store' and no links to another page with commercial material)" (III.C.29).
• A prohibition of the display of Web site addresses during children's programs or commercial material if a character from the show is used to sell a product on the Web site. This "host selling rule" adds to the previously established prohibition on using "program characters or show hosts to sell products in commercials during or adjacent to shows in which the character or host appears" (III.D.39).
• A narrowed definition of "commercial matter," which defines promotions for television shows as commercial matter, except promotions for core programming (III.E.46).

Because of pending petitions against the 2004 Order, as well as threatened lawsuits, the FCC welcomed input from the involved parties (II.10). Broadcasters and children's advocate groups formed a coalition and worked toward a compromise, which they offered to the FCC in a Joint Proposal, filed on February 9, 2006 (II.11).

The FCC then weighed public comments on the Joint Proposal, from which it arrived at the Second Order on Reconsideration and Second Report and Order (Second Order) in September 2006.

The Second Order makes the following changes to the 2004 Order:

• Replaces the 10 percent limit on preemptions of core programming, objected to by many petitioners, with "preemption flexibility requests," which must be annually submitted to the FCC's Media Bureau by August 1 (III.B.28). In the request, the broadcaster states the number of expected preemptions and the time slot in which the show will air if bumped (known as the program's "second home"). Broadcasters must also submit their "plan to notify viewers of the schedule change." (III.B.28)
• States, as only implied in the 2004 Order, that if a Web site fails to pass the four-prong test, the promotion counts "against the commercial time limits" and must be clearly separated from the show (III.C.31). Also, the Web site rules are enforced during closing credits (III.C.36).

  But the following kinds of material are exempt from the four-prong test:

  • Public Service Announcements "aired on behalf of independent non-profit or government organizations" and their partner media companies (III.C.34).
  • Emergency messages and station identifications (III.C.35).
  • "Third party" Web sites that can be reached from the company's Web site, and televised third party commercials that reference third party Web sites [Section 73.670, d].
  • Web sites "primarily devoted to many characters from multiple programs" [Section 73.670, d]
• Excludes from the definition of "commercial matter" promotions for any children's or "age-appropriate" programs that air on the same channel or for "children's educational or informational" programs shown on any channel [Section 73.670, Note 1].
• In regard to the fifty percent limit on the percentage of core programming that can be repeated each week, the new rules clarify that it applies to both the station's main stream and its multicast streams [Section 73.671, e].
• Exempts from the 2004 host selling rule:
  • The sale of character merchandise on a Web site if it is "sufficiently separated" from the show (III.D.43).
  • "Third party" Web sites that can be reached from the companies' Web sites, and televised third party commercials that reference third party Web sites [Section 76.225, d].
  • Web sites "primarily devoted to many characters from multiple programs" [Section 76.225, d].

After reviewing the history of the rules and explaining the new changes, the FCC declared the new rules fair to small broadcasters. This statement came in response to a comment filed by the U.S. Small Business Administration (SBA) following an Initial Regulatory Flexibility Analysis done by the agency.

The SBA requested that the FCC exempt small broadcasters from core programming requirements if they already provide "public affairs content." The SBA also asked that small broadcasters' multicast channels that air informational or public interest shows be exempt from core programming requirements (Appendix C, B).

The FCC declined to make these changes. The Commission pointed out that the FCC requires only three hour of core programming out of the one hundred sixty eight hours a station fills each week (Appendix C, C). Also, the Commission argued that by asking for less specific information on FCC Form 398, assessing preemptions on a case-by-case basis, enforcing a more lenient host selling rule, and expanding the definition of commercial matter, the FCC makes "compliance with the rules easier for all broadcasters, including smaller broadcasters" (Appendix C, D).

The Second Order received support from all five members of the FCC. Chair Kevin J. Martin argued that the Second Order offered an important compromise between industry and children's interest groups, as did his fellow Republicans Robert M. McDowell and Deborah Taylor Tate. In her statement of support on the rules, Tate expressed hope that broadcasters will surpass the minimum core programming requirements.

Commissioner Jonathan S. Adelstein offered hesitant support, but suggested that the rules should be more strict. He found the relaxed rules on preemptions, host selling, and commercial matter unnecessary. His fellow Democrat, Commissioner Michael J. Copps, joined him on concurring with the decision.

The Second Order is important because it stems from compromises reached between broadcasters and children's advocates. The new rules have been accepted because many parties who opposed the 2004 Order gave input, and therefore have an investment in many of the changes. But the new rules also relax regulations from the 2004 Order put in place to protect children, therefore weakening their original intent.