Jack Goodman says that after 20 years, it's time to reconsider the FCC guideline effectively requiring TV stations to air three hours of educational and informational children programming each week. If it cannot be demonstrated that such programming is effective, the intrusion on broadcasters' First Amendment rights cannot be justified.
FCC Kidvid Rule: What’s Your Function?
I was struck recently by how many discussions of health care reform after the House passed its Obamacare repeal bill used the “I’m Just a Bill” segment of ABC’s venerable Schoolhouse Rock to explain what impact the House action would have and the many steps that remain before health care reform might become law. Media as varied as CBS’s The Late Show and the Slate Magazine Political Gabfest used “I’m Just a Bill” to explain the congressional process.
Schoolhouse Rock, which in addition to civics and history taught math and grammar, disappeared from television 20 years ago, and that made me wonder why a program that clearly had such a significant impact on at least a generation of children went off the air.
The answer lies with the FCC. In 1996 , in one of Chairman Reed Hundt’s signature initiatives, the FCC adopted processing guidelines that effectively required all TV stations to provide three hours each week of educational and informational programming for children.The FCC rejected broadcasters’ arguments that interstitial programming such as Schoolhouse Rock and CBS’s The More You Know, which were broadcast between other kids’ programming, should be counted towards meeting stations’ obligations to serve the educational and informational needs of children. It concluded that only programs lasting at least 30 minutes would be considered in evaluating whether a station met the processing guideline.
(To be sure, stations that did not broadcast three hours of the required programming could cite interstitials as showing that they met the needs of children other ways, but no one expected stations to walk themselves into a license renewal problem by taking that approach and — to my knowledge — few stations have.) The commission’s reasoning was that longer-form programming would be more effective in educating kids.
So what happened? Interstitial educational programming disappeared from the airwaves. And yet one of the programs the FCC thought was ineffective remains the way an entire generation understands how Congress works, and I suspect that much of the other information offered in interstitials also has stuck with the kids who watched them.
The FCC’s core conclusion was that “there is substantial information before us showing that television can educate children.” It also determined that every TV station must offer a minimum amount of educational and informational programming both to make that programming more broadly available and to ensure that the obligation to provide it did not fall on only a few stations.
(Indeed, the FCC subsequently ruled that the three-hour minimum applies to every multicast channel so that even a station broadcasting a 24-hour weather or business information channel has to add three more hours of educational and informational programs for children.)
These rules have been in place for more than 20 years, resulting in 3,000 or more hours of FCC-required programming designed to educate children on each and every television station.
Although the FCC decided that the kidvid rules did not violate the First Amendment, and broadcasters have never challenged the rules in court, the Supreme Court has made clear that “the FCC’s oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations; for although ‘the commission may inquire of licensees what they have done to determine the needs of the community they propose to serve, the commission may not impose upon them its private notions of what the public ought to hear.’”
The FCC, however, believed that it could impose these content-based requirements on broadcasters because “our regulations directly advance the government’s substantial, and indeed compelling, interest in the education of America’s children.”
It seems to me that, after two decades, it is time for the FCC to find out what impact its 1996 rules have actually had. Presumably, the availability of more educational and informational programming on every station, and the associated rules requiring such programming be identified in program guides and publicized by stations, would by now have demonstrably improved the knowledge and abilities of American children. Perhaps the programs mandated by the FCC’s 1996 decision have had a greater impact than programs like Schoolhouse Rock did.
But if they have not and the forced enlistment of every television station into the FCC’s plan has had little or no effect, then the basis for the FCC’s conclusions that the processing guidelines would serve the public interest and not violate broadcasters’ free speech rights would disappear.
The court of appeals has told the FCC that it cannot keep longstanding rules in place without examining whether the foundations for those rules remains valid. As the FCC begins a comprehensive review of its media rules, it should include studies to see if the children’s educational and informational program mandate has benefitted kids, or whether instead the loss of Schoolhouse Rock and similar programs has in fact lessened the educational benefits of television.
Jack Goodman practices communications law in Washington. He was previously general counsel of the National Association of Broadcasters, where he was NAB’s chief legislative counsel on the 1992 Cable Act. He can be reached at [email protected].