E/I Rule For Diginets Is Unnecessary, Outdated

I never liked the FCC’s 1996 “processing guideline” that essentially requires TV stations to air three hours of educational or informational (E/I) programming each week. It goes against the grain of the First Amendment. Just as the government cannot tell you what not to say, it cannot tell you what to say. It cannot compel speech.

Admittedly, it’s hard to get worked up about the mandate that is so well meaning. I mean who doesn’t think it’s a good idea to educate and inform America’s youth.

The classic objection to a First Amendment intrusion of just about any kind is that it puts us on a slippery slope. You acquiesce to the three hours and the next thing you know the government is back with requirements for a family hour or so much local news or public affair programming.

But, here we are, more than 20 years later, and the fears of the slippery slope have proved groundless. In fact, the government has pretty much given up trying to manage broadcast programming. For some TV stations, programming in the public interest has boiled down to the E/I programming and maybe a couple of talking heads on Sunday morning.

There was one tiny slip.

In 2004, the FCC extended the three-hour E/I duty to the subchannels that broadcasters were beginning to experiment with as they became available in the transition to the new digital broadcasting standard.

Each subchannel became a multiplier. If a station broadcast one subchannel, it had to air six hours (three for the main and three for the subchannel). If it had two subchannels, it had to air nine hours. And so on.

It was a classic case of government overreach.

As broadcasters began filling the subchannels with independently owned diginets in the 2000s, they wisely shifted the chore of finding and airing the three hours to the diginets, although, as the licensee, they continued to carry the legal obligation and remained responsible to seeing that it is done.

So, if you check the schedule of any diginet, you’ll find on Saturday or Sunday morning those three hours of kids programming clearly identified as the programming meant to fulfill the parent station’s obligation.

MeTV, for instance, airs Green Screen Adventures; Bill Nye, the Science Guy; and Saved by the Bell. (I remember Saved from when my kids were growing up and, frankly, it seems like a stretch to pass that off an E/I.)

As I scanned the schedules of other diginets, I wondered how many kids are actually watching. I would venture to say not many.

Parent and kids in search of something to watch on Saturday morning have a tremendous number of options to choose from and many of them are educational or informative in nature.

They can find such programming on cable and satellite as well as online and much of it is available on demand so they can watch anytime they want as many times as they want. Fortunate children can go mobile, watching on tablets and smartphones.

Even less fortunate family without the mobile devices and pay TV who must rely on free OTA TV have choices. They have the main channels of stations who dutifully air their three-hour blocks.

Many of the commercial stations, the Big Three network affiliates included, focus on 13-16 year-olds, but noncommercial stations continue to program wonderful programming for younger children throughout the morning and afternoon.

If the government truly wants broadcast TV to be a teaching tool for all Americans, it should make sure that public TV is generously funded and stop leaching away the broadcast spectrum that makes the programming free.

I would also argue that most of the diginets are ill-suited to the job of reaching and educating children. For the most part, they are in the business of airing “classic TV” shows for baby boomers — that is, old TV shows for old people like me. You would be hard pressed to find a 14-year-old who’s even heard of Antenna TV, must less sought it out.

And then there is the problem of the diginets with niche programming not meant for children, diginets like the Justice Network, which I wrote about last week as part of our series on multicasting. This is a channel that’s all about murder and mayhem. Its two originals are Inside the Mind of a Serial Killer and Killing Spree.

If I were still the parent of a small children or even adolescents, I would hope that they would never discover the Justice Network. If they did, I would put it on my banned list.

Last April at the NAB convention, FCC Chairman Ajit Pai said he wanted to rid the media world of outdated and “counterproductive” regulations and invited the broadcasters to submit their ideas on which rules should go or at least be relaxed.

Among the ideas the NAB submitted was revisiting the 2004 order extending the three-hour rule to subchannels. The FCC certainly should.

Given the widespread availability of children’s programming, educational, informative or simply entertaining, on a variety of media, the three-hour rule no longer makes much sense for the main channel, let alone the subchannels.

“Our goal is simple: to have rules that reflect the world of 2017, not 2007, 1997, 1987 or 1977,” Pai said in his NAB speech.

Eliminating the three-hour rule on subchannels is a step toward that goal and, lest we forget about the First Amendment, it would further remove the FCC from meddling in the content of broadcasting.

Harry A. Jessell is editor of TVNewsCheck. He can be contacted at 973-701-1067 or here. You can read earlier columns here.