FCC Kids-TV Fine Crackdown Unlikely, Say Officials
A proposed record FCC kids-TV fine probably doesn’t mean the start of a crackdown on stations breaking educational and informational programming rules, said current and former FCC officials and industry lawyers. Chmn. Martin’s pursuit of a $24 million penalty against Univision (CD Feb 27 p3) seems to be an isolated event, they said. Univision’s need for FCC approval of its $13.7 billion sale gave Martin a chance to make an example of the company, since the agency can tie agreement to pay the fine to greenlighting broadcast license transfers, said lawyers. The penalty, if approved by an FCC vote, would eclipse the previous record fine of $9 million against Qwest, said an FCC official.
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Martin and colleagues seem disinclined to set large fines against other broadcasters accused of airing entertainment and not the required informational programming during the 3 hours weekly they must air kid shows. Martin apparently isn’t poised to quickly go after TV stations with complaints pending by imposing big fines, said FCC officials in other offices. The Univision fine, brought because Univision ran Spanish-language soap operas it claimed fulfilled its FCC mandates, will discourage other broadcasters from violating the 1996 rules, agreed industry lawyers and children’s advocates.
Advocates remain hopeful of FCC action on lingering kids TV complaints, some dating to 2004. “The FCC being lax so far has caused broadcasters to forget their obligation,” said Cheryl Leanza, managing dir.-United Church of Christ, which filed the Univision complaint. The church filed similar petitions to deny license renewals alleging airing of inappropriate material by Raycom Media’s WUAB Lorain- Cleveland O., WDCA D.C., owned by Fox, and Ion station WPXW Manassas, Va. “To say that a soap opera or these cartoons that are violent cartoons are educational is completely inappropriate in light of the Children’s TV Act,” said Leanza.
The FCC likely will avoid large fines outside of cases that also involve pending mergers for fear of unconstitutionally violating broadcasters’ rights to decide what’s educational, said lawyers and former FCC officials. They called the Univision instance unusual, since the company assented to the penalty, discouraging a court challenge. “They are in some senses legally stopped from challenging the Constitutional basis,” U. of Colo. School of Law Prof. Philip Weiser said: “But that doesn’t mean the Constitutional basis isn’t lurking there.” Industry lawyers agreed. “To the extent that companies value the merger, they'll agree to conditions that may be beyond the traditional scope of something you deal with through enforcement actions,” a veteran communications attorney said: “The message being sent here is the FCC wants the companies to take it seriously.”
Fining other broadcasters would have a chilling effect on industry similar to that caused by FCC indecency enforcement, said lawyers. “The rule says that stations can air what is, in their best judgment, educational and informational, because the FCC said it was not going to come out with a list of kid-friendly or sanctioned shows,” one said: “Are they going to get into the business of determining what’s informational or educational?” The Univision fine will embolden other advocacy groups to seek FCC action, the lawyer added: “Everybody is going to be filing complaints.”
Child advocates are preparing to study kids programming to see if broadcasters are following FCC rules. This fall Children Now will start a “major, national study” on program quality, Vp Patti Miller said: “We want to make sure these shows are truly educational.” The group’s study results will be out in the spring, she said.
Non-merger related FCC kids’ TV fines probably will mean First Amendment lawsuits by broadcasters, said industry and other lawyers. “In this area the Commission has always known it’s on shaky legal grounds,” Weiser said: “If they continue to push this issue forward, they are going to get some Constitutional challenges.” The Univision move doesn’t impinge on free speech because the fine is consistent with the Children’s TV Act (CTA), Media Access Project Pres. Andrew Schwartzman said: “The Commission was simply enforcing the core provision of the CTA. It wasn’t going ‘beyond’ the CTA or requiring anything more than the law requires… It will be upheld by the courts.”
The fact that Univision tried to pass off telenovela episode as children’s programming shows why CTA was needed, said Henry Geller. Geller, who pushed for that law and was FCC gen. counsel under Newton Minow, was the first NTIA dir. CTA has been a disappointment because Constitutional limits give broadcasters wide latitude to air programs that don’t teach kids useful skills, he said. Geller said broadcasters
- and kids - would be served better by leaving educational programming to public TV underwritten by a tax on ad revenue. “What you ought to do is take a structure that works for you, instead of trying behavioral regulation, to get the commercial broadcaster to act against his interests,” Geller said: “The Commission keeps backing off, because it’s a First Amendment area… Unless you're going to make a joke out of the rule, you have to draw the line.” - Jonathan Make