Congress passed the 1990 Children’s Television Act to tie broadcast-license renewals, the main asset of a local station, with a fairly general obligation to air educational and informational programming for children. Over the years, the Federal Communications Commission has imposed multiple rounds of added burdens on broadcasters under the premise of implementing the law. Given the changed circumstances in the market and need for additional broadcaster flexibility, the FCC will vote next week to initiate a rulemaking to consider modifying our rules on children’s programming, better known as Kid Vid.
Since the last Kid Vid rule changes, in 2006, the marketplace has exploded with new and innovative children’s programming, such as the wealth of content offered by PBS and that available through entirely new platforms, making a review-and-modernization effort completely appropriate. I am not alone in holding this view. In fact, a recent letter from public-interest stakeholders, including Common Sense Media, Campaign for a Commercial Free Childhood, and Center for Digital Democracy, stated: “We agree that major changes have taken place in the video marketplace and that it is appropriate for the FCC to take a fresh look at its rules in light of these changes.”
However, these same groups and a handful of Senate Democrats have called for added delay to obtain information even before the Commission moves forward to seek comment on specific rule changes. The reality is that the launch of a rulemaking is the beginning of the process, not the end. That means everyone will have plenty of time to provide the requisite analysis of the proposed rule changes. In this case, switching to a Notice of Inquiry, as some have suggested, would seem to be Washington speak for injecting unnecessary delay and distraction, especially when the same results can be achieved in the draft Notice of Proposed Rulemaking recently made public by the Commission.
To provide some context on how we got to this point, it wasn’t exactly linear. I started publicly discussing Kid Vid reform with a fairly provocative blog in January to get people to focus on the matter. Recognizing my interest, Chairman Ajit Pai asked me to take the lead on possible rule changes, including recommendations for the whole Commission to consider. Since then, I have taken a step back and begun an extensive process to meet with as many engaged groups as possible to understand their interests and concerns for a future proceeding.
The results of those meetings were highly instructive and helped inform the draft item being considered. For example, Senator Ed Markey (D., Mass.) highlighted his concern that although a plethora of options are available through cable and streaming services, his mission was to ensure that children who relied on over-the-air programming would continue to be served. Based on this conversation, the item considers maintaining core-programming requirements for at least one broadcast multicast channel available to all over-the-air homes.
Moreover, since beginning the discussion on this proceeding, data have started coming in. According to the public-interest-group letter, as a result of the proposed draft item “many children would lose access to educational programming designed to serve their needs.” In particular, the advocates assert that “children of color and those whose families are of limited means will especially be harmed by adopting these tentative conclusions, because they are less able to afford cable, satellite, or broadband (even if available), tend to watch more television, and may have fewer opportunities to learn in other ways.” But the advocates make this assertion based on no evidence. In fact, data provided to the Commission paints a very different picture. According to GfK’s Media Research Intelligence Doublebase 2017, only 0.6 percent of American households with children do not have access to either cable or Internet services — and that number is even smaller for low-income, minority households.
Data already available to the Commission indicate that broadcasters are heavily burdened by our rules, while most American households and children receive questionable benefits from them.
Some are trying to paint a false narrative that this item is comprised of a broadcaster “wish list.” That could not be further from the truth. The fact of the matter is that data already available to the Commission indicate that broadcasters are heavily burdened by our rules, while most American households and children receive questionable benefits from them. Suggesting otherwise ignores market realities. For example, in one recent news article detailing the item, it was suggested that it was my proposal vs. Elmo. But Elmo is not, nor has it ever been, aired on commercial broadcast networks. Instead, it originally aired on PBS and today is made available on HBO, as well as YouTube, Amazon Prime, and Netflix. Importantly, while PBS is subject to some of the Commission’s Kid Vid rules, its business model is designed around community programming, and its efforts will continue with or without Commission mandates. In fact, by the terms of its membership, PBS airs at least seven hours of educational children’s programming each weekday, far in excess of what is required under any Commission rule.
Finally, the draft rulemaking thoughtfully asks questions about each component of the Commission’s rules, with the exception of commercial time limits, which are not addressed in the item. Oddly, public-interest groups complain that the draft item sets forth eleven tentative conclusions but that a lack of specific proposals make it difficult to comment. The tentative conclusions are the specific proposals! And the tentative conclusions are just that: tentative. The purpose of this rulemaking is to give commenters as much direction as possible in order to submit informed comments and data to support or dispute the questions or the overall direction. I stand ready to work with anyone, within reason, from now until we vote on this rulemaking to reframe or ask additional questions that will build the most robust record possible.
American families want high-quality children’s television programming. Unfortunately, due to outdated rules, broadcasters are hamstrung from meeting market demand. It appears that there is unanimous agreement that our Kid Vid rules should be modernized and that we should carefully consider any data presented to help understand the impact of any proposed changes. That is what I intend to do.