FCC Solicits Comments on Joint Proposal to Modify Children’s Digital Television Rules
On March 17, 2006, the Federal Communications Commission (“FCC” or “Commission”) adopted a Second Further Notice of Proposed Rulemaking in the Children’s Television Obligations of Digital Television Broadcast proceeding (“NPRM”). The FCC initiated the NPRM in response to a joint proposal submitted by a group of broadcasters, cable programmers, and children’s advocacy groups in December 2005, regarding new FCC children’s television rules enacted in 2004 for digital TV. The effective date of these rules has been stayed pending the outcome of this proceeding. If the FCC ultimately adopts the joint proposal, it would resolve pending petitions for reconsideration and litigation against the FCC from both industry and children’s advocacy groups over the new rules.
Congress enacted the Children’s Television Act (the “Act”) in 1990 to apply to children’s television programming. The Act imposes two principal requirements: 1) television broadcasters are required to air at least three hours a week of “core” children’s programming that serves the educational and informational needs of children ages 16 and under; and 2) both television broadcasters and multichannel video program distributors (“MVPDs”) are required to adhere to limitations on the amount of commercial advertising in programs directed to children ages 12 and under. Specifically, those limits prohibit commercial television stations and MVPDs from airing more than 10.5 minutes per hour of commercial matter during children’s programming on weekends, and more than 12 minutes per hour of commercial matter during children’s programming on weekdays.
In 2004, the FCC enacted additional children’s programming requirements applicable to digital broadcasting and cablecasting, originally scheduled to go into effect Jan. 1, 2006. These digital video programming requirements included the following five rules: 1) they expanded the definition of “commercial matter” to include program promotions of television or video programming services other than children’s educational and informational (“E/I”) programming, thereby counting all program promotions against the commercial advertising limits, except for promotions of E/I programming (the “Promotion Rule”); 2) they precluded any program from counting as “core” children’s programming if it is preempted more than 10 percent of the time per quarter (the “Preemption Rule”); 3) they counted the display of Web addresses as commercial matter, unless a cumbersome four-part test is met, which among other things, requires that the website provide bona fide program-related or other noncommercial content and that the displayed web address not be for a website primarily intended for commercial purposes, including either e-commerce or advertising (“Website Rule”); 4) they banned the display of Web addresses if the website uses program characters to sell products or services (“Host-Selling Rule”); and 5) they applied the three-hour “core” programming processing guideline to all free multicast video programming streams, also requiring additional E/I programming in proportion to the additional amount of free video programming broadcasters choose to provide (“Multicasting Rule”).
On Feb. 9, 2006, several of the larger broadcast program entities (Viacom, CBS, Disney, NBC Universal), cable programmers (Time Warner, 4Kids Entertainment, Discovery), and children’s advocacy entities (Office of Communication of the United Church of Christ, Children Now, National PTA) submitted a “Joint Proposal of Industry and Advocates on Reconsideration of Children’s Television Rules” (“Joint Proposal”), with the FCC. The parties agreed that they would withdraw their pending petitions for review if the FCC were to adopt an order on reconsideration that includes the following modifications or clarifications to the new rules:
- The Website Rule should be clarified to apply when Internet addresses are displayed during program material or during promotional material not otherwise counted as commercial time. In addition, when an Internet address that does not meet the four-prong test is aired during a promotion, it not only will count as commercial time but also must be clearly separated from programming material.
- The Host-Selling Rule should be modified to vacate some restrictions on displaying website addresses when those websites include characters from the program who help to sell products or services, provided such website address is not displayed during or adjacent to the program.
- The Promotion Rule should be revised to exclude from the definition of “commercial matter” promotions for children’s or other age-appropriate programming appearing on the same channel, or promotions for children’s E/I programming on any channel (cross-channel promotions).
- The Pre-emption Rule should be modified to delete the automatic 10 percent pre-emption limit in favor of a case-by-case approach to deal with excessive pre-emptions of “core” children’s programming. This proposal would also allow rescheduled programming to count towards core children’s programming.
- The Multicasting Rule would remain essentially unchanged, subject to two recommended clarifications: 1) the FCC is urged to clarify its interpretation of the core programming processing guideline to require that at least 50 percent of the core programming must consist of program episodes that had not previously aired within the preceding seven days on either the station’s main program stream or on another free programming stream; and 2) the FCC should amend Form 398 to collect information necessary to enforce this limit.
Although the text of the NPRM has not yet been released, the March 17 Notice states that the FCC seeks comments on whether, and to what extent, the FCC should adopt the Joint Proposal’s recommendations.
In a related matter, the CARU (Children’s Advertising Review Unit) of the CBBB (Council of Better Business Bureaus) announced on Feb. 6, 2006, that it will conduct a thorough review of the children’s advertising industry’s “Self-Regulatory Guidelines for Children’s Advertising.” The rules are 30 years old, and the review is coming in large part as a result of the recent public debate regarding the relationship between childhood obesity and food companies’ marketing practices toward children. This self-regulatory review will examine things like paid product placement in children’s television, appropriate use of third-party licensed characters, and interactive online games.
If you would like more information on the Children’s Television Rules or to discuss potential comments, please contact us.