Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Policies and Rules Concerning ) MM Docket No. 93-48 Children's Television Programming ) and Revision of Programming Policies ) for Television Broadcast Stations ) REPLY COMMENTS OF THE NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION Larry Irving Barbara S. Wellbery Assistant Secretary for Chief Counsel Communications and Information Bernadette McGuire-Rivera Phyllis E. Hartsock Acting Deputy Assistant Secretary Deputy Chief Counsel for Communications and Information Kathryn C. Brown Jana Gagner Associate Administrator, Office of Attorney-Adviser Policy Analysis and Development Kristan Van Hook Telecommunications Policy Analyst National Telecommunications and Information Administration U.S. Department of Commerce Room 4713 14th St. and Constitution Ave., N.W. Washington, D.C. 20230 (202) 482-1816 April 18, 1996
Last Fall President Clinton and NTIA each submitted a letter in this proceeding urging the Commission to strengthen implementation of its educational children's television programming regulations by adopting a minimum programming requirement of "at least three hours per week, and preferably more." This approach was supported because it would provide broadcasters with straightforward guidance regarding license renewal expectations, ease implementation and enforcement, and create a level playing field for all broadcasters. More recently, in President Clinton's February 29 meeting with television industry leaders and in Vice-President Gore's April 16 remarks at the National Association of Broadcasters Annual Convention, the Administration has stressed its commitment to fostering an increase in the amount and quality of children's programming each week as well as improved means for informing the public of such programming availability.
These reply comments again emphasize the need for the Commission to ensure that those using the public airwaves provide sufficient hours of quality children's programming each week, as Congress intended. The Commission has the opportunity to create genuine, meaningful improvements in television programming for children and bring to realization the full potential of the broadcast medium. We thus urge the Commission to strengthen its regulations and clarify broadcasters' responsibilities under the CTA by establishing a clear and effective definition of such programming and requiring improvements in the amount of information available to the public about such programming. Moreover, we support strict enforcement of the revised regulations, which eventually should be applied in the digital broadcasting era.
TABLE OF CONTENTS SUMMARY................................................... i I. INTRODUCTION.............................................. 1 II. THE DEFINITION OF EDUCATIONAL PROGRAMMING REQUIRES MODIFICATION.............................................. 7 III. PUBLIC INFORMATION IMPROVEMENTS ARE NEEDED................10 IV. ENFORCEMENT OF THE CTA'S EDUCATIONAL PROGRAMMING REQUIREMENTS SHOULD BE STRENGTHENED.......................12 V. THE CHILDREN'S EDUCATIONAL PROGRAMMING REQUIREMENTS SHOULD BE CONTINUED IN THE DIGITAL BROADCAST ERA......... 13 VI. CONCLUSION............................................... 14
The National Telecommunications and Information Administration (NTIA), part of the U.S. Department of Commerce and the Executive Branch agency principally responsible for the development and presentation of U.S. telecommunications and information policy on behalf of the Administration, respectfully provides further comments in response to the Commission's Notice of Proposed Rulemaking ("Notice") in the above-captioned proceeding.
Remarkable progress has recently been made toward improving what America's children watch on television. In a historic February 29 meeting at the White House, President Clinton and television industry leaders discussed industry efforts to help parents control what their children watch on television and how the industry can improve the quality of children's programming. President Clinton called this meeting because he has deemed improving television programming quality -- particularly when children are in the audience -- a high priority. Industry leaders agreed to develop within the next year a rating system for their programming that will help parents protect their children from violence and other objectionable content.
Reflecting on this industry pledge, Vice-President Gore, in his April 16 remarks at the National Association of Broadcasters (NAB) Annual Convention, noted that "there is still more to do to ensure that the future of television supports and nurtures our children." He reiterated this Administration's commitment to fostering an increase in the amount and quality of children's programming each week as well as improved means for informing the public of such programming availability, including a new "Family Right-to Know" initiative to provide such information via the Internet. And the Vice-President specifically reiterated the Administration's commitment to the requirement that broadcasters air at least three hours of children's educational programming each week.
Regrettably, the state of television programming for children today is far from satisfactory. Pervasive violence saturates the public airwaves, and quality educational programming -- commonplace in other developed nations -- is seriously lacking in commercial broadcast lineups. To remedy this situation, parents must not only be able to tune out what they do not want their children to watch; they must be able to tune in good programs that their children will watch. The nation relies on broadcasters to use the power granted to them as public trustees to provide such programming.
Indeed, those who use the public airwaves hold in their hands tremendous power to do good -- the power not only to entertain, but also to educate and enlighten. The President recently stated, "the dissemination of true educational programming across the public airwaves is a priceless gift to our children." Studies confirm the positive influence television can have on children's learning -- not only by improving test scores, but also by capturing children's attention and inspiring them to learn about the world around them. While noncommercial broadcasters help fulfill the remarkable potential of the broadcast medium to educate our nation's children, commercial broadcasters should play a more substantial role in achieving this end.
Congress sought to address this deficiency by enacting the requirement in the Children's Television Act ("CTA") of 1990 that the Commission consider the extent to which licensees serve children's educational needs when renewing broadcast licenses. The CTA recognizes the power and value of television's influence on our nation's children by setting forth a reasonable exchange -- it requires commercial broadcasters to honor their public trust by offering programming that enhances children's learning.
While some television broadcasters are starting to take voluntary steps towards fulfilling their obligation to serve children under the CTA, the Commission's current proceeding seeking to strengthen its regulations implementing the children's programming element of the CTA remains absolutely necessary. As the Commission has stated, the current approach to implementing the CTA is not providing any significant change in the amount of educational programming available to children. Moreover, there appears in many quarters to be a consensus, as the overwhelming of number of commenters suggest, that broadcasters' response to the CTA has been disappointing. Today there is relatively little new educational programming for children on commercial broadcast stations. While we commend those broadcasters that have made serious efforts to meet the goals of the CTA, many broadcasters still do not provide sufficient educational programming for children. Thus, regulatory improvements are necessary to clarify broadcasters' responsibilities and ensure that all broadcasters meet children's needs.
To foster this end, last fall President Clinton urged the Commission to strengthen implementation of its educational children's television programming regulations. NTIA also urged such improvements. The letters sent to the Commission by the President and NTIA (copies attached) urged the Commission to adopt a minimum programming requirement of "at least three hours per week, and preferably more," an approach that would provide broadcasters straightforward guidance regarding license renewal expectations, ease implementation and enforcement, and create a level playing field for broadcasters.
These reply comments reiterate the importance of improving children's television and urge the Commission again to take this opportunity to ensure that those using the public airwaves serve children's needs, as Congress intended. In particular, NTIA provides further support for a more specific definition of "educational," as described further below. In addition, we support the Commission's proposals to increase the amount of information available to the public about educational children's programming. Finally, we believe that the Commission's strengthened educational programming requirements should be vigorously enforced, now as well as in the coming digital broadcasting era.
II.THE DEFINITION OF EDUCATIONAL PROGRAMMING REQUIRES MODIFICATION.
We agree with the Commission that it would be beneficial to clarify the definition of "educational and informational" programming. Without a clear definition, the CTA's educational objective cannot be realized. Lack of a clear definition in the past has led to confusion, as some broadcasters have suggested that programs of questionable educational value qualify as meeting the public interest obligation. We agree that the Commission's proposed six-part definition addresses the key elements to be included in a definition. We believe that the final definition, however, should also reflect the points discussed below.
First, simply requiring education as a "significant purpose" is not a sufficient standard to meet the educational needs of children. We urge the Commission instead to require that such programs have education as a "principal purpose." We acknowledge -- as do many other commenters -- that children's shows must be entertaining to attract an audience, but the educational element should not be overwhelmed by the entertainment component. Entertainment as the overriding purpose of a program will not ensure that the nation's children receive the educational programming that they deserve. Moreover, the enormous popularity of programs such as "Sesame Street" and "Barney" demonstrate that producers can develop programs that are both educational and entertaining. Indeed, the President has noted that "America's media and entertainment industry is the world's most vital creative force." Certainly this creative force is capable of developing educational programming that children will want to watch.
Second, we urge slight refinement of the element requiring that the educational objective of a program and the target child audience be specified in writing. As part of this element, the Commission should specify a standard reporting format. A standardized format would help broadcasters inform the Commission and the public of the educational objectives the programming seeks to achieve and the age groups the programming seeks to target. These are critical elements of an effective definition and would simplify the Commission's enforcement.
Finally, the Commission's definition should encompass only programming aired between 7 a.m. and 10 p.m., not 6 a.m. to 11 p.m., as the Commission proposes. As Vice-President Gore noted in remarks to the NAB, broadcasters should air children's television at times they will actually be watching, based on viewing habits of different age groups. In fact, several commenters noted that few children watch television in the very early morning and late evening hours, which limits the usefulness of airing educational programming at those times.
Accordingly, when reviewing license renewal applications, the Commission should consider whether stations have scheduled programming at times suitable for the age groups targeted by their educational programming. Educational programming suitable for school-age children, for example, may reach only a limited audience if aired during school hours. While the Commission should not become a program scheduler, it should consider such practical issues in crafting an appropriate definition of "educational" and reviewing license renewal applications.
III. PUBLIC INFORMATION IMPROVEMENTS ARE NEEDED.
NTIA also supports the Commission's proposed public information improvements, which will help parents locate suitable programming and assess the performance of local stations. Vice-President Gore proposed before the NAB not only that educational programs be identified in television listings, but that broadcasters undertake a new "Family Right-to-Know" initiative. Under this initiative, broadcasters would continue to include information on educational programs in public files, but would also provide such information in electronic form to the Commission to enable its posting on the Commission's home page on the World Wide Web. As Vice-President Gore stated: "Any parent could search their own or their local library's computer, and with a few clicks of the mouse take a look at how [broadcasters have] been meeting the public interest."
One of the most important improvements the Commission proposes is requiring broadcasters to provide educational programming information to programming guide publishers so that such programs can be readily identified in television schedules. Extending this concept to the World Wide Web would enormously empower American parents. Not only do parents want information to help them avoid objectionable programming, but they also need information to help them find programs that are good for their children. The ready availability of such information will keep the remote control firmly in the hands of America's parents. It will also facilitate enforcement of the CTA, as parents and communities will have the information necessary to hold licensees accountable for their programming. The Commission's proposed public information requirements are thus a critical step in the right direction.
IV. ENFORCEMENT OF THE CTA'S EDUCATIONAL PROGRAMMING REQUIREMENTS SHOULD BE STRENGTHENED.
Strengthened children's programming regulations will provide the Commission with the tools to enforce the CTA. The lack of clear-cut guidance and easy public access to programming information in the past has hampered the Commission's ability to implement effectively the intent underlying the CTA. In addition to enacting firmer requirements, strong, swift penalties for lack of compliance must also be adopted. Fines must be high enough to deter non-compliant conduct,y particularly as it seems to be less lucrative for broadcasters to air children's educational programming. If a station's lack of compliance is repeated and particularly egregious, its license must eventually be revoked. Strict enforcement is particularly necessary due to the relaxation of overall license renewal requirements under the Telecommunications Act of 1996. Under this new law, the need for rigorous enforcement of broadcasters' public interest obligations is more important than ever. For meaningful improvements in children's television to occur, it is important -- and only fair -- for all broadcasters in every market to comply with the regulations.
V. THE CHILDREN'S EDUCATIONAL PROGRAMMING REQUIREMENTS SHOULD BE CONTINUED IN THE DIGITAL BROADCAST ERA.
NTIA also believes that strengthened children's television programming regulations are sufficiently important that the Commission must retain them as broadcasters migrate to digital technology. As the Commission considers broadcasters' entry into the digital age, commitment to the public interest, particularly the interests of children, should be restated and strengthened. New technology may offer additional opportunities and possibilities for service to our nation's children. While detailed requirements for the digital era are not yet established, educational children's programming must continue to be widely available from all broadcasters when they migrate to a digital broadcasting standard.
The Commission has the opportunity to create genuine and meaningful improvements in television programming for children and to finally begin to realize the full potential of the broadcast medium. We urge the Commission to strengthen its regulations and clarify broadcasters' responsibilities under the CTA. We further urge the Commission to establish a clear and effective definition of such programming, and to require improvements in the amount of information available to the public about such programming. Moreover, we support strict enforcement of the revised regulations, which eventually should be applied in the digital broadcasting era.
Respectfully submitted, Larry Irving _________________________ Assistant Secretary for Barbara S. Wellbery Communications and Information Chief Counsel Bernadette McGuire-Rivera Phyllis E. Hartsock Acting Deputy Assistant Secretary Deputy Chief Counsel for Communications and Information Kathryn C. Brown _________________________ Associate Administrator, Office of Jana Gagner Policy Analysis and Development Attorney-Adviser Kristan Van Hook Telecommunications Policy Analyst National Telecommunications and Information Administration U.S. Department of Commerce Room 4713 14th St. and Constitution Ave., N.W. Washington, D.C. 20230 (202) 482-1816 April 18, 1996
 Policies and Rules Concerning Children's Television Programming, Revision of Programming Policies for Television Broadcast Stations, Notice of Proposed Rulemaking, 10 FCC Rcd 6308 (1995) ("Notice"). Hereinafter, all Comments and Reply Comments cited refer to filings received in MM Docket No. 93-48 on October 16, 1995 and November 19, 1995 respectively, unless otherwise indicated.
 Radio Address by the President to the Nation (Mar. 2, 1996). See also Remarks by the President at Opening of Meeting with Media Executives (Feb. 29, 1996) ("Remarks by the President"), and Statement by the President (Feb. 29, 1996).
 Vice President Al Gore, Prepared Remarks at the National Association of Broadcasters Annual Convention, Las Vegas, Nev. (April 16, 1996).
 Letter from Bill Clinton, President of the United States, to Reed Hundt, Chairman of the Federal Communications Commission (Sept. 18, 1995).
 47 U.S.C. 303a note (Supp. V. 1993). See also Comments of Aletha C. Huston and John C. Wright at 2.
 The Children's Television Act of 1990, Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S.C. 303b (Supp. V. 1993), includes a requirement that the Commission, in its review of television broadcast licenses, consider the extent to which licensees have served the educational and informational needs of children through overall programming, including programming specifically designed to serve such needs.
 See supra n. 1.
 In large part, the current regulations simply restate the broad premise of the CTA, i.e., they state that each broadcaster has an obligation to serve the educational needs of children and define educational programming as any programming that furthers the "positive development" of children in any respect. 47 C.F.R. 73.671 (1995). In 1993, the Commission determined that nearly two years after these regulations were issued, broadcasters' level of performance was not consistent with the objectives underlying the CTA. Policies and Rules Concerning Children's Television Programming, Revision of Programming Policies for Television Broadcast Stations, Notice of Inquiry, MM Docket No. 93-48, 8 FCC Rcd 1841, 1842, 6-7 (1993). The Commission indicated again last year that its past efforts had been insufficient to bring about the measurable increase in educational programming sought by Congress. Notice at 6311, 7, 6319, 19, 6327, para. 35. See also Senate Committee on Commerce, Science, and Transportation, Children's Television Act of 1989, S. Rep. No. 227, 101st Cong., 1st Sess. 1-9 (1989).
 Data collected by Dr. Dale Kunkel supports this conclusion. Comments of Dr. Dale Kunkel ("Kunkel") at 1-6 and Attachment, "Broadcasters' Response to the Children's Television Act"; Reply Comments of Kunkel at 1-18; and the comments of hundreds of individual citizens who wrote to the Commission urging that additional children's educational programming be required.
 For example, the Fox Network provides several hours of educational children's programming each week. See Reply Comments of the Children's Television Workshop ("CTW") at 5. In addition, as noted supra at 2, others are moving in this direction. See also, e.g., Rich Frank, "Using the Power of Television," INTV Conference Keynote Speech, Las Vegas, Nev. (Jan. 22, 1996).
 Supra n. 4.
 Letter from Larry Irving, Assistant Secretary of Commerce for Communications and Information and Administrator of the National Telecommunications and Information Administration, to Reed Hundt, Chairman of the Federal Communications Commission (Sept. 19, 1995).
 See Comments of Kunkel at 1-6.
 In addition to these points, we question whether the Commission should permit 15-minute programs to be included in the definition of educational programming. Such programming, even if regularly scheduled, would be out of step with traditional schedules and interfere with other programs. As very little of the U.S. television schedule is provided in 15-minute segments, viewers watching such segments would either have to leave other programs early or start watching them late. Thus, if allowed, only a limited part of a station's programming obligation should be met with 15-minute programs. Moreover, the Commission should monitor the use of such programs over the next two to three years to evaluate the effectiveness of this approach and determine whether it should continue to be allowed.
 Notice at 6324, 30. See, e.g., Comments of CTW at 14-16.
 See Comments of CTW at 20-22, Reply Comments of CTW at 3.
 Statement by the President at 2.
 At least one commenter proposed such an approach. Comments of the Center for Media Education ("CME") at 42-44.
 One commenter found that, under current regulations, which provide scant guidance as to the definition of educational programming, broadcasters' educational program descriptions varied widely. Some stations did not even provide the basic information required by the Commission. Comments of Kunkel at 5-6.
 Notice at 6329, 40.
 See, e.g., Reply Comments of CTW at 19-20, Reply Comments of CME at 32.
 Notice at 6322-23, 24-26. NTIA strongly supports the Commission's proposed improvements with one exception: on-screen identification of educational programming, because this may be a disincentive for some children to watch it. Several commenters have suggested that children will shy away from programming deemed "educational". See, e.g., Comments of Warner Bros. Television Network, Warner Bros., and Time Warner, Inc. at 13; Reply Comments of CTW at 21-22.
 Since passage of the CTA, the Commission has renewed licenses even when stations' responses to the CTA appeared minimal. See Reply Comments of Henry Geller at 7.
 The Commission is authorized to impose fines up to $25,000 for each violation or day of a continuing violation, and up to $250,000 for any single act or failure to act. 47 U.S.C. 503(b)(2)(A); 47 C.F.R. 1.80(b)(1) (1994).
 Telecommunications Act of 1996, Pub. L. No. 104-104, 204, 110 Stat. 56 (1996) (to be codified at 47 U.S.C. 309(k)).
 This approach is consistent with the language in Section 201 of the Telecommunications Act of 1996, and the Joint Explanatory Statement of the Committee of Conference at p. 44, indicating that public interest obligations continue to apply to new licenses and services for television broadcasting. Others also support this approach. See Comments of the Caucus for Producers, Writers, and Directors at 1-2. In addition, Apple Computer, Inc. discussed how advanced television services can provide educational benefits for children. Comments of Apple Computer, Inc. at 1-2.