FCC Record Univision Fine Raises Free-Speech Concerns
A proposed $24 million kids-TV fine against Univision raised First Amendment worries among some industry officials because of concern that the Commission would overstep its bounds in setting the record penalty. The consent decree between the broadcaster and Chmn. Martin appears to amount to the regulation of programming, said broadcast and other lawyers. They said broadcasters have wide latitude in determining which programs are educational shows under the 1990 Children’s TV Act.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Univision agreed to the fine to get FCC approval of its $13.7 billion sale to private equity firms (CD June 28 p5), Commission officials said. Commissioners must take up the consent decree in voting on TV station license transfers in the deal to take the company private, FCC officials said. They said an order approving the license transfer is circulating on the 8th floor. Analysts expect the deal to be approved next month, though FCC officials said timing of the vote isn’t set. Univision declined to comment. Univision’s buyers include Thomas H. Lee Partners, which also is buying Clear Channel, and Providence Equity Partners, which has been advised by Martin’s predecessor, Michael Powell.
Martin seems to be using the leverage he has over the Univision deal to set a de facto definition of kids programming, said broadcast lawyers. They said that would seems to violate the First Amendment because the govt. is interfering with programming decisions. A broadcast lawyer said: “It’s no coincidence that this is being done in connection with a deal, because they [Univision and the buyers] are trying to get a deal done, and they're going to pay the price.”
Univision probably can’t challenge the constitutionality of the consent decree because such deals are considered voluntary, said 3 industry lawyers. “They way they've [the FCC] done it is pretty clever,” said Womble Carlyle’s Gregg Skall: “No one is going to appeal it.” Other lawyers agreed. “It allows them to collect the fine and the parties can’t go to court,” another lawyer said.
It’s hardly unprecedented for the FCC to extract concessions by applying conditions on deals without going through rulemakings and public comment, said broadcast and public-interest lawyers. “Any time the Commission has leverage, it can use it to obtain an oversized result,” another broadcast lawyer said. The circumstances of the $24 million fine aren’t unusual, and the penalty isn’t unconstitutional because Congress gave the FCC authority to crack down on programs with little educational value, said Andrew Schwartzman, Media Access Project pres.
The settlement would resolve a complaint saying Univision broke FCC rules requiring that 3 hours of kids programming air weekly. The 2004 complaint by United Church of Christ said the Spanish broadcaster’s Complices al Rescate show wasn’t educational. The church said the show is a telenovela -- a Spanish-language soap opera -- meant to entertain and not educate. The large fine relates to the severity of the violation, Martin told the N.Y. Times in announcing the penalty. FCC officials wouldn’t speak for attribution for this article.
Kids advocates contend the fine isn’t unconstitutional nor unduly burdensome to Univision, whose Q4 profit of $111.8 million almost quintuple the amount of the penalty. Broadcasters passed on the chance to challenge Constitutional merits of the Children’s TV Act after it was passed by Congress in 1990 and again when the FCC implemented standards 6 years later, said advocates. “Part of the criteria of the Children’s TV Act is whether a program was created for the purpose of educating and informing children as opposed to entertaining them,” said United Church of Christ Managing Dir. Cheryl Leanza. Schwartzman called the industry “a bunch of crybabies.”
The 4 other Commissioners are likely to support Martin’s initiative, Leanza said: “This is one area where you don’t see people disagree that often.” Martin struck a deal with Univision without the involvement of all other commissioners, said an FCC staffer in another office. The FCC faces a steep challenge of not regulating programming more than permitted to by the Children’s TV Act, said Free State Foundation Pres. Randolph Mays: “If there were only one station in town or one network in America, perhaps we would all agree that we would strike a different balance for the tradeoff of First Amendment concerns and ensuring children’s welfare.”
The fine doesn’t seem to signal the start a crackdown on kids programming, said broadcast officials. Similar complaints have been pending for several years, including others filed by United Church of Christ. Nonetheless, kids advocates voiced optimism the FCC will take further action. “We're really hopeful that they're going to move forward and address the other complaints,” said Children Now Vp Patti Miller: “We'd like to see strong enforcement on this… We're pleased they have, and we think it’s a step in the right direction.” The FCC got a unique opportunity to take action on one batch of lingering complaints because they were holding up Univision license renewals, Leanza said: “There is no way to get around the fact that the Univision transaction was one reason for the timing of the decision… Certainly if the FCC is willing to impose the biggest fine in history for this problem they are willing to rule on the other transgressions.”