Before the
Federal Communications Commission
Washington, D.C.

MM Docket No. 93-48

In the matter of:

Policies and Rules Concerning Children's Television Programming Revision of Programming Policies for Television Broadcast Stations

NOTICE OF PROPOSED RULE MAKING

Adopted: April 5, 1995 Released: April 7, 1995

By the Commission: Commissioner Quello issuing a statement; Commissioner Barrett concurring in part, dissenting in part and issuing a statement; Commissioners Ness and Chong issuing separate statements.

Comment Date: June 16, 1995
Reply Comment Date: July 17, 1995

I. Summary  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Background  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
  A. The Current State of Children's Television 
   Programming  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
  B. The FCC's Rules and Current Proceeding . . . . . . . . . . . . . . . .  13
III. Proposed Revisions of Children's Programming Requirement . . . . . . .  21
A.Improving the Flow of Information to the Public to 
       Facilitate Enforcement of the CTA  . . . . . . . . . . . . . . . . .  21

  B. Definition of Programming "Specifically Designed"
       to Serve Children's Needs  . . . . . . . . . . . . . . . . . . . . .  27
  C. Further Options  . . . . . . . . . . . . . . . . . . . . . . . . . . .  45
   1. Monitoring Broadcaster Performance  . . . . . . . . . . . . . . . . .  55
   2. Safe Harbor Processing Guideline  . . . . . . . . . . . . . . . . . .  56
   3. Programming Standard  . . . . . . . . . . . . . . . . . . . . . . . .  59
4.Certain Issues Relevant to a Safe Harbor 
    Processing Guideline and a Programming 
    Standard  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  62
   5. First Amendment Issues  . . . . . . . . . . . . . . . . . . . . . . .  66
   6. License Renewal Procedures  . . . . . . . . . . . . . . . . . . . . .  74
   7. Program Sponsorship . . . . . . . . . . . . . . . . . . . . . . . . .  77
  D. Reexamination of Rules . . . . . . . . . . . . . . . . . . . . . . . .  86
IV. Conclusion  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  88
V. Administrative Matters . . . . . . . . . . . . . . . . . . . . . . . . .  89
** Appendixes

2. Congress observed that "it is well established that in exchange for 'the free and exclusive use of a valuable part of the public domain,' a broadcaster can be required to actas a public fiduciary, obligated to serve the needs and interests of its area."(n4) Congress further stated that "[a]s a part of public interest obligation, broadcasters can and indeed must be required to render public service to children."(n5) As a consequence, Congress directed the Commission to review, in any application for license renewal, whether a television broadcast licensee had "served the educational and information needs of children through the licensee's overall programming, including programming specifically designed to serve such needs."(n6)

3. The Commission adopted rules implementing the CTA in 1991.(n7) In 1993, the Commission, in light of its experience in reviewing more than 320 television license renewals, began an inquiry to examine whether our rules should be revised. Based on that inquiry, this Notice of Proposed Rule Making proposes changes to our rules to make them as clear as possible to facilitate licensee compliance with the CTA, and to strengthen the functioning of the children's television marketplace.

4. In developing these proposed changes, the Commission has followed three principles. The first principle is that judgments of the quality of a licensee's programming, educational or otherwise, are best made by the audience, not by the federal government. To enable audiences to make these judgments, the Commission must ensure that key members of the market -- e.g., parents -- receive the information they need to participate in a meaningful fashion. Therefore, we propose to require broadcasters to identify educational programming in materials provided to publishers of television schedules, and to improve the quality of, and public access to, the information broadcasters make available regarding their efforts in providing children's programming.

5. By improving the information available to parents and local communities, we can enable them to be better informed consumers, influencing the market through their choices. With better information, parents, educators, and child advocacy groups also can more effectively use community-based efforts to seek changes in children's programming without resorting to governmental intervention. These groups also can be more effective in facilitating enforcement of the CTA.

6. The second principle the Commission has followed is that our rules and processes should be as clear, simple, and fair as possible. To this end, we believe that we should revise our definition of "educational and informational" programming. The current definition is ambiguous and therefore fails to give licensees clear guidance. Indeed, some licensees have interpreted this definition to include general audience news and game shows. Moreover, we have never defined what constitutes programming "specifically designed" to serve children's educational and informational needs, even though the CTA expressly requires each licensee to provide such programming. We are concerned that this lack of clarity has led to less than optimal compliance with the goals of the CTA. We are concerned that, unless we provide greater specificity, noneducational programming could drive educational programming off the air.

7. While we believe that our proposals to ensure that the public has greater access to information and to clarify the definition of educational and informational programming are important steps toward promoting the goals of the CTA more effectively, we are concerned that these efforts may not suffice to serve the educational and informational needs of children, and to bring about the kind of measurable increase in such programming contemplated by Congress. Accordingly, we also propose to take one of the following three types of action:

(1) Monitor the amount of broadcasted programming specifically designed to serve the educational and informational needs of children for a specified period of time (e.g., three years) to determine whether our efforts to increase the flow of information to the public and clarify our rules have caused a significant increase in such programming. Stations would be required to submit annual descriptions of their educational and informational programming. At the end of the specified period, the Commission would assess the need for further regulatory action.

(2) Establish a "safe harbor" quantitative processing guideline, which would specify an amount of programming specifically designed to serve the educational and informational needs of children (e.g., 3 hours per week or 3 increasing to 5 hours per week) that would represent one means of satisfying the CTA's programming obligation and permit staff approval of the children's programming portion of a license renewal application.

(3) Establish a programming standard -- i.e., a rule -- that would require broadcasters to air a specified average number of hours (e.g., 3 hours per week or 3 increasing to 5 hours per week) of programming specifically designed to serve the educational and informational needs of children, or demonstrate that the programming they did air, along with other programming-related activities in their market, served the educational and informational needs of children as well as or better than providing an additional amount of programming specifically designed to serve those needs.

As explained more fully below, we seek comment on whether, if we adopt either a processing guideline or a programming standard, the regulation should be sunsetted by December 31, 2004. Such a measure would ensure that the Commission undertakes a review of either type of regulation before that date.

8. The Commission's third principle is that broadcasters should be guided by market forces, to the greatest extent possible, in determining whether they meet their programming obligation by airing shows themselves, or by sponsoring programming aired on other stations. The program sponsorship concept, most relevant to the options of adopting processing guidelines or programming standards, would permit a broadcaster to better utilize other stations' children's programming expertise, would allow some stations to develop audience identification and programming schedules that build child audiences, and could stimulate growth in the production of educational and informational programming, all while reducing disincentives to airing such programming. We do not believe, however, that the CTA permits a licensee to satisfy its programming obligation entirely through sponsorship arrangements. Thus, whatever action we ultimately take in this area, a licensee would not, in fulfilling its obligations under the CTA, be permitted to rely completely on programming it sponsored to air on other stations.

9. American children spend considerable time watching television. Recent data show that children from 2 to 17 watch on average more than 3 hours of television each day.(n8) By the time most children reach the age of 18, it is estimated that they will have watched between 15,000 and 20,000 hours of television. In contrast, they will havespent less than 13,000 hours in the classroom.(n9) Moreover, many children watch television before they are exposed to any formal education.(n10)

10. In enacting the CTA, Congress declared that "[o]ur children are this nation's most valuable resource, and we need to pay special attention to their needs."(n11) At the same time, Congress recognized that many children lack basic reading, math, and other skills.(n12) As noted above, Congress concluded that television has the capacity to benefit society by helping to educate and inform our children.(n13) Indeed, studies show that television programs can effectively teach children specific skills. Children who watch "Sesame Street" and "Mister Roger's Neighborhood," for example, have been shown to learn the concepts and skills taught on those programs,(n14) and to have enhanced attentional and perceptual abilities.(n15) Television can also help prepare children for formal schooling and supplement skills taught in the classroom, and is especially effective when designed to focus on particular age groups.(n16) Finally, television can be used effectively to convey important and positive messages about social behavior.(n17)

11. Recent surveys of children confirm the powerful impact television has on them. In a nationwide survey of 750 children ages 10 to 16, more than one-third said they "often" want to try things they see on TV, and two-thirds said their contemporaries are influenced by what they see on TV.(n18) These surveys reaffirm what the Office of Technology Assessment stated in 1990: "[c]ommunication is the process by which culture is developed and maintained," and "[c]ulture can be thought of as the 'glue,' the shared values and practices, that holds a society together."(n19)

12. As noted above, however, Congress also found that market forces alone have produced "disturbingly little" educational and informational programming on commercial television,(n20) that market forces were not "sufficient to ensure that commercial stations provide educational and informational programming,"(n21) and that government action to increase the availability of such programming therefore is required.

B. The FCC's Rules and Current Proceeding

13. The CTA imposes an affirmative obligation on broadcast television stations to serve the educational and informational needs of children through not only their "overall programming," but also programming "specifically designed" to serve children's needs.(n22) The CTA also authorizes the Commission, as part of its license renewal review process, to consider any special nonbroadcast efforts by the licensee that enhance the educational and informational value of programming to children, and any special efforts by the licensee to produce or support programming specifically designed to serve the educational and informational needs of children that is broadcast by another station in the licensee's market.(n23) Our current rules generally incorporate the language of thestatute and also define educational and informational programming as "programming that furthers the positive development of children 16 years of age and under in any respect, including the child's intellectual/cognitive or social/emotional needs."(n24) In addition, we require broadcasters to air some amount of standard-length educational and informational programming specifically designed for children 16 years of age and under.(n25) We have adopted no other guidelines regarding the types of programming that may contribute to satisfying a station's renewal review requirement, and our rules contain no requirement as to the number of hours of educational and informational programming that stations must broadcast or the time of day during which such programming may be aired.

14. After developing some experience with our implementation of the CTA's regulatory scheme, we initiated this proceeding with a Notice of Inquiry ("NOI") in 1993 "to seek comment on whether and in what manner our rules and policies might be revised to more clearly identify the levels and types of programming necessary in the long term to adequately serve the educational and informational needs of children."(n26) Based on an informal review of more than 320 license renewal applications, we did not believe at that time that the level of educational programming performance was consistent with the CTA's long-term objectives. Concluding that the apparent lack of growth in children's educational programming might be largely attributable to broadcasters' uncertainty regarding the scope of their obligation, we sought comment in our NOI on whether: (1) in establishing compliance with the CTA, licensees should rely primarily on standard-length programming that is specifically designed to serve the educational and informational needs of children, and only secondarily on short-segment programming; and (2) the "primary" objective of qualifying "core" programming should be educational and informational, with entertainment as a secondary goal.(n27) We also sought comment on whether, to provide licensees with clearer guidance and to facilitate the license renewal review process, the Commission should adopt staff processing guidelines specifying an amount and type of children's programming that would permit staff approval of the children's programming portion of license renewal applications.(n28)

15. In June 1994, we convened an en banc hearing on the subject of children's television programming. Twenty-nine panelists gave oral presentations to the full Commission on three topics: (1) "Educational and Informational Programming: Will We Know It When We See It?"; (2) "Educational and Informational Programming: How Much Is Enough?"; and (3) "The Economics of Providing Educational and Informational Programming for Children." The panel participants also submitted written comments addressing these issues, as did other interested parties.(n29)

16. Parties responding to our NOI and commenting in connection with our en banc hearing submitted studies both challenging and supporting our tentative finding that there had been little change in the amount of available educational and informational programming since passage of the CTA. According to a station survey submitted by the National Association of Broadcasters ("NAB"), which purported to show an increase in such programming, the average commercial station aired slightly more than 2 hours per week of regularly scheduled, standard-length children's educational programming in the fall of 1990 and 3.6 hours per week of such programming in the fall of 1993.(n30) According to a survey of member stations conducted by the Association of Independent Television Stations, Inc. ("INTV"), which also claimed that the amount of educational programming had increased, the average independent station aired 4.64 hours per weekof regularly scheduled, standard-length educational programs in the first quarter of 1994.(n31) In a study of license renewal applications filed in 1992, Dr. Dale Kunkel of the University of California, Santa Barbara, found that stations reported airing on average 3.4 hours per week of regularly scheduled, standard-length programming specifically designed to meet children's educational needs, but he concluded that this figure is likely to be inflated because it accepts at face value station claims as to the educational value of programs, and because many of the programs identified by stations were of dubious educational value to children.(n32) Squire Rushnell, former Vice President of Children's Television for ABC from 1973 to 1989, performed a study comparing the amount of children's educational and informational programming produced by networks in the years 1975, 1980, 1985, and 1990, as well as plans for the then upcoming 1994/95 season. Rushnell's results show that in 1975 the three commercial networks were presenting a combined average of 9-3/4 hours per week of children's programs specifically designed as educational. In 1980, this figure rose to 11-1/4 hours per week, but by 1990 had fallen to 1-3/4 hours. Projections for the 1994/95 season showed that three commercial networks (ABC, NBC, and CBS) would present a combined weekly average of 5-3/4 hours of educational children's programming. With the addition of Fox, the weekly average would increase to 9 hours.(n33)

17. After careful review of these studies, as well as all other information regarding the availability of educational broadcast programming provided in response to our NOI and in connection with our en banc hearing, we find that this evidence is insufficient to support a conclusion as to whether or not the educational and informational needs of children are being met, including whether the CTA and our existing regulations have precipitated a significant increase in the amount of children's educational and informational programming carried by commercial broadcasters. In particular, none of the studies submitted enables us to determine accurately what amount of programming specifically designed to educate and inform children is currently being aired by commercial stations.

18. Indeed, the usefulness of all of the studies submitted is limited. Like Dr. Kunkel's study, the station surveys submitted by both the NAB and INTV accept at face value station claims as to the educational content of their programming. Our experience with such face value claims calls into question the reliability of the results presented and the amount of programming on the air they would purport to document. A cursory review of children's programming reports submitted as part of license renewal applications reveals that broadcasters have misidentified certain programs as contributing to their compliance under the CTA.(n34) Others who have reviewed the programming some stations have claimed as educational have found that a significant number of claimed programs were inappropriate, which further supports the suggestion that the figures produced by the above studies may be inflated. The Center for Media Education, filing jointly with other parties ("CME et al."), submitted results of a review of commercial television license renewal applications which it conducted with the Institute for Public Representation of the Georgetown University Law Center in 1992. Based on this study and continued review of license renewal applications, CME found that many stations were listing in their applications programs with no educational content, and concluded that most broadcasters were not increasing the number of hours they devote to children's educational programming.(n35) In addition, the stations that chose to respond to the NAB and INTV surveys may have made a more significant effort to provide educational programming than those that did not respond, which may have resulted in anoverstatement of the effort being made by commercial television broadcasters overall.(n36) Although INTV did include the list of programs reflected in its study of market clearances, this study is limited to syndicated programming. Squire Rushnell's study, on the other hand, is limited to network programming. Moreover, NAB points out several problems that it believes exist with the Rushnell study, including use of an incorrect amount of educational and informational programming for both 1980 and the 1994/95 season, and notes that stations affiliated with the networks today air a considerable amount of non-network educational and informational programming for children.(n37)

19. Even if we accept the conclusion drawn by some parties that the amount of educational programming on the air has increased since implementation of our rules, the degree of that increase appears to be quite modest at best. Thus, we are not convinced that our current rules are prompting an adequate response to the CTA. Accordingly, we feel that it would be desirable to precipitate a more substantial and significant increase in the amount of children's educational and informational programming -- in particular, programming specifically designed to educate and inform children -- in the future. As discussed more fully below, we tentatively conclude that the first steps toward achieving this goal should be the following: (1) to take measures to improve the flow of programming information to the public, and (2) to adopt a definition of programming specifically designed to serve children's educational and informational needs. In addition, we believe that further action is needed to ensure an adequate supply of programming specifically designed to meet children's educational and informational needs. However, as indicated above, the record compiled thus far is inconclusive with respect to what form that action should take, and we therefore seek comment below on a range of options.

20. In conjunction with the description and analysis of each of the proposals and options described more specifically below, we must reiterate to all interested parties the importance of providing us with information and studies in addition to those already submitted, as well as analysis of any useful information or studies already on record. Of obvious importance are materials documenting changes in the nature and amount of children's programming, especially recently. In providing such studies and analysis, commenters should bear in mind the various infirmities that we have already found that limit the utility of the material already presented to us in this inquiry. Such information could be of utmost significance in assisting us in designing rules that achieve the goals ofthe CTA. Finally, we note that if data were submitted that show that the educational and informational needs of children are being met consistent with the goals of the CTA, we would reassess the need for further action.(n38)

21. As stated above, one principle we intend to apply in this proceeding is that programming quality judgments are best made by the audience, not the government. Here, commenters have convinced us that one way to ensure that Commission licensees provide sufficient amounts of children's educational programming to comply with the CTA is to facilitate the ability of the public, especially parents, to interact in the marketand in the regulatory process.(n39) It is only through parental involvement that the CTA will be successful.

22. In administering the CTA, we do not believe that it is necessary for the Commission to evaluate the quality of children's programming if the public has sufficient opportunity -- through information -- to play an active role in assuring that the ultimate goals of the statute are achieved. Providing this opportunity accomplishes two things. First, it allows the Commission to rely more on marketplace forces as a critical mechanism for achieving the goals of the CTA. For example, if parents have the opportunity to know in advance that a particular program has an educational and informational focus, and when such programs will be shown, they can encourage their children to watch such programming and thereby increase audience, ratings, and the incentive of broadcasters to air, and programmers to supply, more of such programming. We note that television research indicates generally that parents act on their objections to television programs and that programming information could help parents influence the shows viewed by children. Indeed, one recent study examines the impact of viewer advisories on a particular subset of programs which carried such advisories, specifically prime time movies shown on network television between 1987 and 1993.(n40) Similarly, easy access to information about a station's past and planned performance in this area would permit the public to exercise its market prerogatives more effectively by facilitating viewing campaigns and related efforts to influence station performance by coordinating contacts with the station and its advertisers, and by otherwise bringing community pressure to bear. Indeed, given the available evidence that parents do use information to exercise their market prerogatives, we believe that the currentinsufficiency of over-the-air educational programming may be attributable, at least in part, to the dearth of programming information in the marketplace.

23. As the APA has also pointed out, the second thing that increasing the flow of information to the public should accomplish is to faciliate enforcement of the CTA.(n41) Parents, educators, and grass roots groups can play a more effective role in both the renewal process and in ongoing monitoring efforts during the course of a station's license term if information about a station's efforts in programming for children is made readily available and understandable.

24. Accordingly, we tentatively conclude that stations should be required to identify programs specifically designed to serve the educational and informational needs of children at the time they are aired, and, to the extent that programs are scheduled, that licensees should provide such identifying information to program guide publishers. Not only would this information facilitate public involvement as discussed above, but it also appears to us that stations could use this as an opportunity for promoting their educational programs. We believe that such identifications need not consume large amounts of print or air time, and that they could be as simple as an icon.(n42) We ask commenters not only to address this specific proposal and how it could be implemented, but also to propose any other methods for informing the public of upcoming children's educational and informational programming.

25. We also seek comment on how we can improve the public's ability to monitor a licensee's specific efforts to provide more programming specifically designed to serve the educational and informational needs of children. At present, licensees are required to compile reports, on an annual or quarterly basis (at the licensee's discretion), containing information about the children's programming they air, including the time, date, duration and description of the programs.(n43) These reports must be maintained in the station's public inspection file. There appear to be a number of changes we could make in the existing requirements to facilitate public access to and use of the type of information now appearing in these reports. One simple change would be to require the station to include the name of and method for contacting the person at the station responsible for collecting comments on the station's compliance with the CTA. We ask for comment on how such a requirement could be implemented without being overly burdensome. To the extent we amend our rules to define "core" programming(discussed infra at paras. 36-43), it also appears reasonable to require licensees to provide a brief explanation of how particular programs meet that definition. In addition, if we adopt the program sponsorship proposal described below, we believe that licensees should be required to include information regarding both the programs they aired themselves and the programs they sponsored so that this information is verifiable.

26. More generally, we seek comment on ways of rendering the required information in an easily understandable yet comprehensive form. At a minimum, we believe that the reports should be physically separated from the rest of the material in the public inspection file, as is the licensee's political file, so that parents and other interested parties can view the information without having to search through other unrelated materials. In addition, we believe that licensees should make efforts to publicize the reports, by, for example, announcing their existence and location periodically over the air. We also ask whether these reports should be produced annually or quarterly, or whether we should, as we do now, allow stations to choose one of these two options.

B. Definition of Programming "Specifically Designed" to Serve Children's Needs

27. Background. Under both the CTA and our rules, licensees are allowed to demonstrate that they have met their children's programming requirement in part through general audience and entertainment programs that contain information or illustrate messages helpful to children, but they must also air some programming "specifically designed" to serve the educational and informational needs of children.(n44) Our current definition of educational and informational programming -- "programming that furthers the positive development of children 16 years of age and under in any respect, including the child's intellectual/cognitive or social/emotional needs"(n45) -- is very broad and makes no distinction between general audience/entertainment programs and programs that are specifically designed to educate and inform. As we explained in our Memorandum Opinion and Order, we adopted this very general definition because we thought giving broadcasters wide latitude to make their own children's programming judgments would foster creativity.(n46) In addition, we explained our belief that Congress intended the Commission to defer to the "reasonable programming judgments" of licensees.(n47) We also adopted permissive guidelines for the exercise of licensees' discretion in applying thisdefinition, encouraging them to use these guidelines in assessing the needs of children in their communities and deciding on the types of programming to air.(n48)

28. We found in our review of license renewal applications that some broadcasters were claiming as "educational and informational" programs that had very little educational content. Thus, having preliminarily found that clarification of our definition might be warranted, we sought comment in our NOI on two relevant views: (1) that licensees should rely primarily on standard-length programming that is specifically designed to serve the educational and informational needs of children, and only secondarily on short-segment programming; and (2) that the "primary" objective of qualifying "core" programming should be educational and informational, with entertainment as a secondary goal.(n49)

29. Comments. Several broadcast organizations, including NAB and INTV, argued in response to our NOI that our current broad definition of educational and informational programming should be retained. According to NAB, for example, this definition strikes the appropriate balance between allowing licensees to make their own programming decisions on the one hand and providing guidance to the industry and Commission staff on the other.(n50) In contrast, public interest groups, including educational associations, consumer groups, and children's organizations, as well as other interested parties, generally agreed that our current definition is so vague that it has failed to prompt an adequate response by broadcasters and should therefore be narrowed.(n51)

30. A number of commenters, including Children's Television Workshop ("CTW"), the Walt Disney Company ("Disney"), CBS, INTV, and NAB, disagreed with our suggestion in the NOI of requiring education to be the "primary" objective of core programming on the ground that such a requirement relies on a "false dichotomy" between education and entertainment. These parties expressed the view that children's shows must be entertaining to attract an audience, and they noted that highly respected educational shows currently on the air have a large entertainment component.(n52) However, other commenters, including the APA and Westinghouse Broadcasting Company, Inc. ("Westinghouse"), supported our suggestion that education should be the "primary" objective of core programming.(n53) As an alternative to our suggestion, Disney proposed that qualifying programming should have education as a "significant purpose."(n54)

31. With respect to the issue of standard-length versus short-segment programming, comments were generally divided between public interest organizations, which favored standard-length shows, and broadcasters, which stressed the advantages of short-segment programming. A number of parties, including Capital Cities/ABC, Inc. ("ABC"), Fox Children's Network ("Fox"), NAB, and INTV, argued that short-segment programs are better suited to the attention spans of young children. Broadcasters also pointed out that short segments can be aired immediately adjacent to or in the middle of highly rated children's entertainment shows, thereby ensuring that they reach a large audience, and can be produced more easily and cheaply by individual stations.(n55) Commenters such as the APA, CME et al., and Dr. Kunkel disputed the contention that the attention span of young children is too limited for 30-minute programs and argued that scientific data demonstrate that standard-length programming is in fact more educational than short segments.(n56) These commenters also pointed out that standard-length programs generally are regularly scheduled and therefore listed in program guides, which enables parents and children to select such programming, if desired.(n57)

32. Many commenters, in addition to responding to the specific questions we raised in our NOI, suggested other ways we might revise our definition of educational and informational programming to promote the goals of the CTA more effectively. Thus, for example, Peggy Charren and CME et al. proposed that the Commission should count as "core" programming only programming that is aired between 7:00 a.m. and 10:00 p.m.(n58) According to CME et al., a large percentage of new educational shows have been aired between 5:30 a.m. and 7:00 a.m., even though CME et al. claim that most children do not watch television during that time period.(n59) CME et al. further suggest that, because the needs and interests of different age groups vary widely, core programming should be targeted to serve specific age groups and stations should be required to identify the target group of each program claimed as "core" in their license renewal applications.(n60)

33. Among other suggested rule revisions were CTW's idea of requiring that educational and informational programming specifically designed for children (1) be produced with the assistance of independent educational advisors; (2) be created to fulfill explicit written educational goals; and (3) be evaluated for effectiveness.(n61) The National PTA and CME et al. suggested that educational and informational programming be defined to include programs addressing certain subject areas, such as history, science, literature, fine arts, and current events.(n62)

34. Discussion. We continue to believe that broadcasters should be permitted to exercise programming discretion to the fullest extent possible consistent with the requirements of the CTA. We tentatively conclude, however, that our current definition of educational and informational programming does not provide licensees with sufficient guidance regarding their obligation to air programming "specifically designed" to serve children's educational and informational needs, which is the only category of programming that the CTA specifically requires every licensee to provide.

35. Our review of license renewal applications reveals that many licensees do not clearly distinguish between the general audience/entertainment programs they have shown that serve children's needs and the programs they have aired that were specifically designed to educate and inform children. Moreover, stations are continuing to identify general audience and entertainment programming in their license renewal applications as specifically designed to serve children's educational and informational needs.(n63) In light of these circumstances, and guided by the principle that our rules should be clear, simple, and fair, we are inclined to think that we should replace our current broad definition of educational and informational programming with a more particularized definition of programming "specifically designed" to serve children's educational and informational needs -- i.e., "core" programming -- that will provide licensees with clear guidance regarding the types of programming that will meet their obligation to air such programming. We do not believe that a definition of general audience and entertainment programming that serves children is needed, because licensees appear to be airing sufficient amounts of such programming. In contrast, we believe that a clear definition is needed to stimulate an adequate supply of programming "specifically designed" to serve children in view of what appears to be continuing confusion among licensees in this regard. In our view, a definition of such programming would prompt those licensees that are not already doing so to take steps to improve their service to children, because it would prevent them from relying largely on programs that serve children only marginally to meet their obligation under the CTA.

36. Proposal. We tentatively conclude that we will define "core" educational programming as those programs that meet the following requirements: (1) the program is specifically designed to meet the educational and informational needs of children ages 16 and under (i.e., has education as a significant purpose); (2) the educational objective of the program and the target child audience are specified in writing in the children's programming report described above; (3) the program is aired between the hours of 6:00 a.m. and 11:00 p.m.; (4) the program is regularly scheduled; (5) the program is of a substantial length (e.g., 15 or 30 minutes); and (6) the program is identified as educational children's programming at the time it is aired, and instructions for listing it as educational programming are provided by the licensee to program guides.

37. The elements of our proposed definition are designed to address both our own concerns raised in the NOI and those expressed by commenters. We note first in response to The National PTA and CME et al. that we do not believe that it is appropriate to limit educational programming to any identified list of subjects. In addition, we think that it should be left to broadcasters to decide whether they need or wish to hire educational advisors to assist them with the production of programming. Thus, we do not propose to adopt either of these ideas. With respect to the concern expressed by Disney and others that educational programming must be entertaining to be successful, we wish to make clear that it is our desire to encourage producers to make educational programming that is attractive to children. At the same time, we must ensure that broadcasters meet their obligation under the CTA to air programming specifically designed to educate and inform.(n64) We therefore propose to require that any program which is claimed to be "specifically designed" to meet children's needs have education as "a significant purpose." We believe that this terminology makes clear that education need not be the only purpose of programming designed to meet the educational needs of children, but must be more than an incidental goal. We invite comment on this tentative conclusion.

38. With respect to the second element of our core programming definition, we tentatively agree with those commenters who have suggested that licensees be required to specify in writing the educational objective of a core program, as well as its target child audience, because we believe that such a requirement will help licensees focus on children's specific educational needs. We also believe that this information will assist parents to better understand licensees' programming efforts and thus afford them the means to participate with licensees in developing effective and responsive children's programming. We propose that such information should be included in the children's programming report that licensees place in their public inspection file and that we propose to make more readily accessible to the public.

39. Some commenters have argued that the Commission should take action to ensure that there is an adequate supply of core programming targeted to every age group, asserting that there is little such programming for pre-school and elementary-aged children.(n65) We recognize the possibility that licensees may be induced to air programming for children over 12 by the fact that (1) this group has greater spending power than young children, (2) shows for older children may attract general audiences aswell as children, and (3) programming designed for children ages 12 and under is subject to commercial limits, whereas programming for older children is not.(n66) We continue to believe that it would be undesirable to require broadcasters to target particular segments of the child audience, and we prefer to leave licensees maximum flexibility to choose which segments of the child audience they wish to serve.(n67) Moreover, we do not have adequate data showing that in fact younger age groups are underserved relative to other children. For this reason, we ask those who disagree with our tentative view on this matter to provide us with data relevant to whether there is a shortage of educational programming targeted to certain age groups. If the data show that younger children are indeed underserved, what would be the best way to correct the problem? Should we in some way provide additional incentives for broadcasters to develop programming designed for children ages 12 and under or to any subset of this group?

40. As for the third element of our definition of core programming, we also agree with those who argue that credit at license renewal time should be given only for programming shown during hours when children are likely to watch television. We tentatively propose to credit as core programming children's educational programs aired between 6:00 a.m. and 11:00 p.m. The data indicate that these hours include the time periods most popular for television viewing among children 2 through 17. Thus, as noted above, children ages 6 to 17 watch the most television during prime time. For children 2 to 5 years old, the most popular viewing time period is 10:00 a.m to 4:00 p.m. Monday through Friday, with prime time the second most popular.(n68) Although several commenters argued that core programming should be aired between 7:00 a.m. and 10:00 p.m.,(n69) we are inclined to adopt a wider permissible time frame. We propose to credit programming aired up to 11:00 p.m. because we believe that children watch television through the entire period of prime time.(n70) In addition, we agree with commenters that expressed the view that programming aired as early as 6:00 a.m. isvaluable because not an insignificant number of children are in the audience during this time.(n71) However, we are concerned that educational programs not be routinely relegated to the 6:00 a.m. to 7:00 a.m. hour, which may be earlier than many children watch television, simply because it may be a less costly time for licensees to discharge their educational programming obligation. Accordingly, we solicit further comment on whether core program hours should include 6:00 a.m. to 7:00 a.m. If so, and if the data confirm that fewer children watch at this time than later in the day, should we limit the percentage of a station's total core programming that may be shown during this hour? We invite comment on how we can provide incentives to air children's educational and informational programming at times when children are most likely to be watching.

41. Turning to the fourth element of our definition of core programming, we are currently inclined to require that such programming be regularly scheduled because we think that it is important for children and their parents to be able to easily anticipate when educational programming will be aired. However, we do not wish to create a disincentive to air children's educational specials, which may not be regularly scheduled or which may air at relatively infrequent intervals. We ask for comment on whether we should require core programs to be regularly scheduled and, if so, how often and in what manner programs should be scheduled in order to be considered "regularly" scheduled (e.g., once a week, once a month, or so long as the program can appear in program guides).

42. With respect to the fifth element of our definition of core programming, we are also inclined to require that core programming be of substantial length. Clearly, a standard-length program -- generally understood to be at least one half-hour long(n72) -- would satisfy this requirement. Such length programs are typically regularly scheduled and therefore available to the child audience at predictable times. A shorter length program, however, may nevertheless reflect a comparable level of service by a station to its child audience. Moreover, it is certainly possible to schedule 15-minute programs regularly and have such programming listed in program guides. We ask commenters to address the extent to which such programs are now listed in these guides. More generally, we ask for comment on what length of program should satisfy the proposed requirement that core programming be of substantial length. While we are inclined to require some degree of time commitment, we recognize that short-segment programming can play a useful role in serving the needs of children and we do not wish to give broadcasters a disincentive to air educational short segments that provide helpful information or respond to local needs. Accordingly, we will consider alternative views on this element of our proposed definition. More specifically, we ask whether short segments that are specifically designed to serve children's educational needs should be credited as core programming and, if so, how they should be credited. Should we, forexample, allow a certain percentage of core programming to consist of short segments? We are also interested to know whether broadcasters might want to meet a part of their core programming obligation by airing educational segments embedded within a standard-length noneducational program. Although we do not believe that the noneducational programs in which such segments are embedded should be credited as core programming, we seek comment on whether the segments themselves should be counted as core educational programming, and, if so, how they should be credited.

43. With respect to the sixth element of our definition, as discussed above, we propose that stations identify "core" programs as educational and informational at the time they are aired. In addition, to the extent that programs are scheduled, we propose to require that licensees make available the necessary information for listing them as educational and informational in program guides.(n73) We ask for comment on this proposal, as well as other ideas about how stations can inform the public of upcoming children's educational and informational programming.

44. Finally, we seek comment on whether the permissive guidelines we currently encourage broadcasters to use to assess community needs should be retained in any form if we adopt our proposed definition of core programming, and, if so, how they should be used.(n74) The assessment criteria we adopted as permissive guidelines are (1) the circumstances within the community, (2) other programming on the station, (3) programming aired on other broadcast stations within the community, and (4) other programs for children available in the broadcaster's community of license.(n75) To the extent our proposed definition has the effect of refocusing broadcasters' efforts in this area, a set of assessment guidelines may be unnecessary.

C. Further Options

45. Background. We believe that our proposals to ensure that the public has fuller, more accessible programming information, and to define programming "specifically designed" to serve the educational and informational needs of children, would be good steps toward achieving the goals of the CTA more effectively. However, we are concerned that increased public information and a clear definition of core programming may not be enough to bring about the kind of measurable increase in educational and informational programming contemplated by Congress. As we have indicated, we are disappointed that the amount of such programming on broadcast television has not increased as much as anticipated since we implemented our currentrules, and we expect to see further improvement. To ensure such improvement, we believe it necessary to take some type of further action.

46. When we adopted our current rules, we decided against imposing any kind of quantitative processing guideline or standard because Congress "[did] not intend that the FCC interpret this section as requiring a quantification standard."(n76) As we then stated, we also feared that a quantitative processing guideline might have the unintended effect of creating a ceiling on the amount of educational and informational programming on the air.(n77) Thus, we declined to establish a processing guideline and stated instead that the amount of "specifically designed" programming needed to comply with the CTA was likely to vary according to different circumstances, including the type of programming aired.(n78) However, as noted above, we sought comment in our NOI on whether a processing guideline specifying an amount and type of children's programming should be adopted to provide clearer guidance to licensees and facilitate staff grant of license renewal applications.(n79)

47. Comments. While many broadcasters and broadcast organizations, including NAB and NBC, were opposed to clarifying the amount of programming that would comply with the CTA, others, such as INTV, Tribune Broadcasting Company ("Tribune"), and Act III Broadcasting, Inc. ("Act III"), agreed with the NOI that clarification would be useful to licensees.(n80) INTV also stated that the market would respond to new demand for programming, and perhaps do so more efficiently, if that demand were made more stable and predictable by the establishment of specific expectations by the Commission. In addition, INTV expressed the view that specific guidance as to the Commission's expectations is likely to effect an increase in the overall amount of educational and informational programming because it will encourage stations that have been uncertain about their obligation to air at least the minimum amount expected.(n81)

48. Some of those opposed to clarified standards argued that better results would be achieved by permitting licensees to exercise their discretion in deciding how mucheducational programming to air.(n82) Some broadcasters also argued that the use of a quantitative processing guideline would be premature, attributing any dearth of available educational programming to the fact that the market needs time to place new programs on the air.(n83) NAB and others further argued that in fact new programs were becoming available, and that the amount of available programming would continue to increase without a quantitative processing guideline.(n84) Certain broadcasters contended that a requirement to increase the quantity of children's educational programming might undermine the quality of such programming by forcing, or providing an incentive to, licensees to abandon high-cost and perhaps high-quality shows in order to pay for a greater number of less expensive programs.(n85) Commenters opposed to a quantitative processing guideline also contended that the adoption of such a guideline would violate the First Amendment and be contrary to the intentions expressed by Congress in enacting the CTA.(n86)

49. Those broadcasters who favored clearer guidance regarding the amount of programming required under the CTA generally advocated the establishment of a safe harbor, i.e., an amount of programming that, if met, would establish compliance with the CTA and insulate licensees from further educational programming compliance review, as well as protect them from petitions to deny and competing applications. According to INTV's suggestion, stations that did not meet the safe harbor criteria could nonetheless demonstrate that they had complied with the CTA and thus could be granted their license renewal, although their applications would be subject to heightened scrutiny and they would not be protected from challenges related to their compliance with the statute's programming requirements. INTV also suggested that the Commission establish a safe harbor by issuing a policy statement rather than by adopting a processing guideline, arguing that a policy statement would have the advantage of informality andcould be modified or abandoned more easily than a processing guideline as the marketplace begins to produce adequate children's programming.(n87)

50. Public interest commenters supported the idea of a quantitative processing guideline for children's programming. Among the suggestions made by these parties are the proposal of Peggy Charren of 7 hours per week of regularly scheduled "core" programs distributed throughout the week, the proposal of CME et al. of one hour per day of core programming, and CTW's proposal that licensees be required to air, at a minimum, the greater of: (1) a certain fixed amount per week of standard-length programming specifically designed to meet the educational and informational needs of children; and (2) an amount of such programming equal to a percentage of the total weekly amount of non-qualifying standard-length children's programming aired by the station.(n88)

51. Many commenters favoring the adoption of a quantitative guideline called for a daily minimum, and in particular a requirement of one hour per day.(n89) In contrast, most broadcasters argued that, if a guideline were to be imposed, it should be a weekly guideline. NAB and ABC, for example, pointed out that network affiliates air the bulk of their children's programs on the weekend, while most independent stations, including Fox affiliates, broadcast children's programs on weekdays.(n90) According to ABC, aweekday program requirement would force it to displace early morning and afternoon adult-oriented news and public affairs programs even though children's programs are available at these times on independent and public stations, as well as on cable channels.(n91) NAB argued that the current counter-programming practice of networks and affiliates should not be disturbed by a per-day educational programming requirement.(n92)

52. Discussion. We believe that it is important to collect additional and more precise data, particularly with respect to the amount of core programming as we propose to define it, before determining which additional step is necessary.(n93) As discussed above, the studies submitted to us are inconclusive because their results are subject to question for various reasons. In addition, because the information presented in renewal applications is based on our current vague definition, it does not provide us with a clear picture of the amount of programming specifically designed to serve children's educational and informational needs on the air. As already noted, however, the results of the studies discussed above and the information in the renewal applications received to date do suggest that any increase in the amount of such programming being aired since passage of the CTA has been modest at best and that some further action on our part is warranted. We therefore set forth below three alternative options for further action: (1) Commission monitoring of the amount of educational and informational programming on the air during a specified period following adoption of measures to improve the flow of programming information to the public and a clarified definition; (2) adoption of a safe harbor processing guideline; and (3) adoption of a programming standard. We seek comment on which of these options should be implemented. We also invite comment on possible new license renewal procedures and program sponsorship rules that could be implemented if a processing guideline or programming standard is adopted.

53. In setting forth these options, we want to emphasize our concern that, although there is an abundant supply of general audience/entertainment programming that serves children's needs in some way, it appears that the market has not produced an adequate supply of programming specifically designed to serve the educational and informational needs of children. We have already proposed one approach to at least partially address this shortcoming -- increasing and improving the flow of information to the public. Without adequate information about the relevant product (here, core programming), the market cannot respond in an efficient manner. In addition, the market's failure to provide more core programming can be attributed to the relativelyweaker buying power of children (compared to the general viewing populace) and the fact that such buying power derives from parents. Moreover, since the promotional efforts for children's programming have been directed largely at the children themselves rather than their parents, a portion of the critical information that facilitates market performance is lost. Finally, we observe that the structure of the broadcasting market does not have a mechanism for responding to the intensity of an individual viewer's desire for a particular program. Unlike the purchaser of products in a retail setting, the home viewer cannot pay more to register the intensity of his or her preference for a particular product. Rather, the primary mechanism for assessing demand in the television broadcast market is the tabulation of numbers of viewers. When dealing with a small audience pool -- here, viewers of children's core programming -- the absence of a market-based mechanism for registering intensity of preference can result in a critical loss of programming. While we believe that our proposals for increasing the flow of information to the public and for clarifying the definition of educational and informational programming will help promote the goals of the CTA more effectively, to the extent that these efforts may not suffice to address the marketplace dynamic described above, we ask whether some quantitative regulation may be warranted.

54. We recognize that the Commission has previously stated that a quantitative standard would be contrary to Congressional intent.(n94) However, upon reexamining the CTA and its legislative history, we note that the CTA itself does not prohibit quantitative programming standards. Moreover, the legislative history makes clear that, while Congress did not intend itself to require such a standard, the House and Senate Reports do not preclude the Commission from adopting one.(n95) Thus, we believe that it is within the Commission's discretion to decide how the objectives of the CTA may best be effectuated.

1. Monitoring Broadcaster Performance

55. One option would be for the Commission to monitor the programming performance of licensees for a specified period of time -- for example, three years -- to determine whether or not our proposed efforts to improve the dissemination of information to the public and clarify our definition of educational and informationalprogramming do in fact result in a significant increase in programming specifically designed to serve children's educational and informational needs. To accomplish such monitoring, we suggest that the Commission would require stations to submit annually to the Commission a description of their educational and informational programming. We also believe that, for such monitoring to be meaningful, it would be essential for licensees to include in their annual submissions sufficient information for the Commission to measure the average weekly amount of core programming on the air. At the end of the specified period, the Commission would decide whether licensees were meeting the CTA's objectives or whether stronger regulatory measures were needed to achieve the statute's goals. We seek comment on whether the Commission should implement this option and, if so, how long the monitoring period should be. We also ask for suggestions regarding how the Commission should collect information from licensees, and what kinds of information should be required.

2. Safe Harbor Processing Guideline

56. A second option would be to establish a safe harbor quantitative processing guideline. Such a guideline would specify an amount of core programming that would represent one means of satisfying the CTA's programming obligation and permit staff approval of the children's programming portion of a license renewal application. Thus, it would be similar to the kind of safe harbor proposed by INTV and others and the processing guideline proposed by CME et al. in that, if a licensee aired the prescribed amount of programming, its license renewal application would not be reviewed further for CTA programming compliance. The only challenges to a licensee's children's programming performance that would be entertained would be those questioning the bona fides of a licensee's claim to have met the processing guideline. A licensee that did not meet the processing guideline would have its application referred to the Commission for consideration and would have the opportunity to demonstrate that it had complied with the CTA in other ways. The Commission would then evaluate such a licensee's performance based on its overall efforts and other circumstances. Failure to meet the guideline would result in greater review of the application, but would not constitute a violation of the Commission's rules.

57. Given the results of the studies submitted to us, and allowing for the possibility that these studies may be somewhat flawed,(n96) we are currently inclined to think that, if a processing guideline is adopted, it should be set at 3 hours per week of core programming, at least initially. According to NAB, the average amount of educational programming aired by commercial stations in the fall of 1993 was 3.6 hours per week. According to INTV, the average amount of such programming aired by independent stations and Fox affiliates in the first quarter of 1994 was 4.64 hours perweek.(n97) Although it is not clear how much of this programming would meet our proposed definition of core programming, some portion of it would meet this definition. Thus, a requirement of 3 hours of core programming per week should not be difficult for the vast majority of stations to meet, particularly since the market has had time to produce more children's programming since NAB and INTV conducted their studies and both organizations assert that more programming is becoming available.(n98) We seek comment on these observations and suggestions.

58. In addition, we invite comment on whether, if we adopted a processing guideline, we should increase it in stages over time. Such an approach would enable us to encourage stations to increase their core programming while allowing for long-term factors such as existing programming contracts, schedule planning, and program promotion. Moreover, if we were to institute a safe harbor processing guideline, we would want to avoid creating any potential incentives for stations airing more than 3 hours per week of core programming to reduce those amounts. If we adopted a phased-in processing guideline, what should the ultimate level of the guideline be, and over what period of time should it be phased in? One possibility would be to increase the guideline by increments of one half hour each year until reaching a level of 5 hours of core programming per week.

3. Programming Standard

59. A third option would be to establish a standard requiring that every station be responsible for the airing of a minimum amount of core programming in its market. Stations meeting this requirement would qualify for staff approval of the children's programming portion of their license renewal application. Those not meeting the standard would have their applications referred to the Commission for determination of the appropriate remedy. Notwithstanding failure to meet the standard, the Commission could hold that the licensee had in fact complied with the CTA's requirements. However, a licensee failing to meet a standard would have a much heavier burden to show that it complied with the CTA than would be the case if it did not meet a processing guideline. Thus, a licensee failing to meet a standard would have to make a compelling showing that the qualifying programming it did air, along with any of its other programming-related activities in its market, served the educational and informational needs of children in that market as well as or better than an additional amount of programming specifically designed to serve the educational and informational needs of children.

60. As discussed above in connection with a safe harbor processing guideline, we believe that, given the current level of programming documented by the data submitted to us, the appropriate level of a programming requirement would be 3 hours of core programming per week, at least initially. Even allowing for any problems inherent in the results of the NAB, INTV, and Kunkel studies, it should be feasible for the vast majority of licensees to meet a 3-hour-per-week requirement, since this level is below the average figures produced by those studies and stations have had more time to respond to the CTA since the studies were conducted. We seek comment on this suggestion and, as with the option of a processing guideline, we invite interested parties to comment on whether it would be appropriate to increase the requirement by, for example, one half hour each year until a requirement of 5 hours of core programming per week is established.

61. A formal standard has certain advantages over a processing guideline, but it also can be more restrictive. A standard is a clear statement that a specified level of
core programming or the equivalent is both necessary and sufficient to have complied with the CTA. A processing guideline, on the other hand, merely states that an amount of programming, or its equivalent performance, is sufficient, but not necessary to determine compliance with the CTA. Use of a rule rather than a processing guideline may also be easier to administer and give the Commission a broader range of sanctions with which to address failures to comply with the CTA. We request comment on these observations, and on other considerations commenters believe differentiate a processing guideline from a standard.

4.Certain Issues Relevant to a Safe Harbor Processing Guideline and a Programming Standard

62. There are a number of questions on which we seek comment that are raised by both the option of a safe harbor processing guideline and that of a programming standard. First, we think that any processing guideline or programming requirement that might be adopted should be expressed in terms of hours per week, rather than hours per day. By this, we wish to leave broadcasters flexibility to determine their program schedules. We also think that the weekly amount should be averaged over a specified period of time. We do, however, express some concern about broadcasters who show the majority of children's educational programs during the early morning weekend hours and request comment on this concern. We seek comment on our suggestion of a weekly processing guideline or programming standard averaged over a specified period, and we ask for ideas as to the period of time over which a guideline or standard should be averaged. We also seek comment on the extent to which repeats during a weeklyschedule and later reruns of programs should be counted toward fulfillment of any processing guideline or programming requirement that we might adopt.(n99)

63. Second, we seek comment as to whether a processing guideline or programming requirement should be the same for all stations regardless of station type or market size. While a uniform guideline or requirement would be simple and evenly applied, it could have a disproportionate impact on stations in small markets. The impact on stations in small markets could indeed be very different from the effect on stations in large markets if we also permit stations to meet the guideline or requirement by sponsoring programming on other stations, as discussed below, because stations in small markets would not have as many sponsorship options available to them. On the other hand, small markets -- which are often rural -- may be precisely those markets in which television is most important as an educational resource for children, and therefore it might not serve the needs of children to establish a lower guideline or requirement for small markets.

64. Third, it has been publicly suggested that to give stations an incentive to air high-quality programming, a programming requirement should be based entirely on a certain amount of rating points.(n100) Under such an approach, a licensee would be free to determine how it attained the prescribed number of rating points, whether with a few highly popular shows or with many less popular ones. We invite comment on this suggestion and whether it would be appropriate for either a processing guideline or a programming standard. We are interested to know in particular whether a guideline or requirement based on ratings would provide incentives to air programs of high quality or whether it would give stations an unintended incentive to claim credit for programs that do not clearly qualify under a definition of programming specifically designed to meet children's educational and informational needs. We are also concerned that consideration of rating points could make a processing guideline or programming requirement effectively unattainable for small stations that may not have the economic ability to produce or purchase highly rated programs.

65. Finally, we wish to have the fullest information possible regarding the effect of either a quantitative processing guideline or standard on broadcasters and the overall operation of the market. In particular, we seek to quantify, as much as possible, the economic costs of meeting a guideline or standard. Thus, we request that interested parties provide us with detailed information regarding any potential opportunity costs (i.e., the difference in profits from children's educational programming and from otherprogramming that might be aired instead) for broadcasters that would be created by the implementation of a processing guideline or programming requirement set at various levels. Anecdotal evidence alone from individual station owners as to their particular economic circumstances will not enable us to make an informed judgment as to the potential industry-wide costs of any particular guideline or requirement and its impact on the industry's ability to serve the public interest. We therefore ask commenters to provide us with one or more studies that quantify any such costs on stations in different sized markets, as well as on the broadcasting industry as a whole. We also urge commenters to ensure that the sample data used to develop estimates of any opportunity costs that stations might face are representative and that the methodology used to develop the estimates is clearly explained.

5. First Amendment Issues

66. In weighing alternatives for further Commission action, we must consider any limitations imposed by the First Amendment of the Constitution. Even assuming that these proposals were found to be content-based restrictions on speech, some restrictions on content have been judged permissible when applied to broadcasting because of the scarcity of frequencies and broadcasters' concomitant duty to provide public service. It is well established that because the radio spectrum is not available to all, broadcasters have a unique duty to act as fiduciaries for the public,(n101) and may be required to provide programming to meet important public needs.(n102) The Commission therefore is permitted to "place limited content restraints, and impose certain affirmative obligations, on broadcast licensees"(n103) where such restrictions are "narrowly tailored to further a substantial governmental interest."(n104)

67. We tentatively conclude, and the case law suggests, that the government has a substantial interest in furthering the education and welfare of children through implementation of the CTA. The courts have held that there is a compelling government interest in "safeguarding the physical and psychological well being of a minor."(n105) Thelegislative history of the CTA states that "[i]t is difficult to think of an interest more substantial than the promotion of the welfare of children who watch so much television and rely upon it for so much of the information they receive."(n106)

68. The "narrowly tailored" standard described above is similar to the traditional intermediate scrutiny test that the Supreme Court has applied to non-content regulation of non-broadcasters in United States v. O'Brien, 391 U.S. 367 (1968). In that context, the Court has described the narrowly tailored part of the test as not requiring the "least restrictive means," but rather that "the means chosen [must] not burden substantially more speech than is necessary to further the government's legitimate interest." Turner, 114 S.Ct. 2445, 2469 (1994). The Court further explained that this test is met "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Id., quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1988) (internal quotation marks omitted).(n107)

69. We seek comment on whether each of the proposed alternatives for improving implementation of the CTA is narrowly tailored to further the CTA's interest in furthering the education and welfare of children. The answer will depend, in part, on the facts contained in the record.(n108) In an effort to develop an appropriate record we seek, as noted earlier, submission of additional studies concerning whether and by how much children's programming, especially "programming specifically designed to serve the educational and informational needs of children," as we have proposed to define that term, has increased since enactment of the CTA and whether the amount of such children's programming is in fact insufficient to fulfill the requirements and purposes of the Act. The answers to these questions are critical in developing a record that willpermit the Commission to determine whether the existing approach to implementation of the CTA is overcoming the failure of the marketplace to produce a sufficient quantity of children's programming that led to the enactment of the CTA(n109) and whether a modified regulatory approach is needed. We also seek comment on which of the various options proposed here would be a more effective means to implement the substantial governmental interest in furthering the education and welfare of children that underlies the CTA.

70. Subject to our further analysis of the record, each alternative proposed here appears to be less intrusive than the ban on editorializing on non-commercial stations that the Supreme Court held unconstitutional under the First Amendment in League of Women Voters. The Court distinguished the ban on editorializing from other valid broadcasting restrictions including the fairness doctrine and the reasonable access provisions of section 312(a)(7). According to the Court, these restrictions "left room for editorial discretion and simply required broadcasters to grant others access to the microphone. . . ." League of Women Voters, 468 U.S. at 385. The Court further said that the goals of the editorializing ban could be met by requiring more speech, rather than less. Id. at 395.

71. In addition, in League of Women Voters, the Court noted that it had upheld the fairness doctrine because there was "no threat that a broadcaster would be denied permission to carry a particular program or to publish its own views." Id. at 378. We also ask for comment on whether any of these mechanisms would "tend to transform broadcasters into common carriers and . . . intrude unnecessarily upon the editorial discretion of broadcasters." League of Women Voters, 468 U.S. at 379. Finally, the Court emphasized that its decision rejecting the ban on editorializing was a "narrow" one and that "[w]e do not hold that the Congress or the FCC is without power to regulate the content, timing or character of speech . . . ." Id. at 402. Here, Congress has directed the Commission to take action with respect to children's programming. We ask for comment on the relevance of that direction to our First Amendment analysis.

72. We further note that a question exists whether quantitative standards, processing guidelines, or monitoring are more intrusive than the Commission's current, more subjective, approach to implementation of the CTA. We request comment on whether the constraints on broadcasters' discretion are greater or lesser when they have a clear quantitative standard with which to comply (or explicit information in the form of processing guidelines on how to assure routine, staff processing of their applications forrenewal, or an expectation of ongoing monitoring) than when they run the risk of having their applications for license renewal denied for non-compliance with a general, subjective standard. We also request comment on whether any of the mechanisms proposed here is overly intrusive. In addition, we also seek comment on whether our proposals would be consistent with elimination of the fairness doctrine.(n110)

73. We seek comment on this preliminary analysis with respect to each of the options proposed here.

6. License Renewal Procedures

74. As we have indicated, we wish through our proposed rule revisions to encourage the public, especially parents, to take an active role in urging stations to comply with the CTA, and to reduce the government's role in reviewing such compliance. One way to encourage members of the public to take an active role in monitoring licensees' compliance with the CTA, and to engage in an ongoing dialogue with stations, would be to require that any challenger filing a petition to deny show that he or she had first attempted to resolve the alleged problem with the station in question. As with any other challenge to a licensee's renewal application, a challenge based on a station's children's programming performance could be raised only by a party within the station's viewing area. Beyond this, we seek comment on whether challengers to a license renewal should be required to submit evidence that they contacted the licensee regarding any alleged failure to comply with the CTA, and asked the licensee to correct its alleged noncompliance. How would such a requirement work in conjunction with a processing guideline, as opposed to a programming standard? Could this requirement be utilized even if the Commission opts to monitor programming and not to adopt a guideline or standard? How and when would the challenger have to communicate alleged problems to the licensee? If, for example, we instituted a programming standard of 3 hours of core programming per week averaged over a one-year period, would it be appropriate to require a challenger to notify a station of any alleged violation of the standard within one year of the close of that one-year period? Should the challenger be required to submit his or her complaint to the licensee in writing, and what information should the complaint contain? Finally, we seek comment on what procedures should be put in place to allow the licensee to correct instances of noncompliance brought to its attention by a member of its audience.

75. Keeping in mind our objective of reducing the government's role in reviewing CTA compliance, we seek comment on whether, if we implement a safe harbor processing guideline or a programming standard, licensees should be permitted to certify whether they have aired the prescribed amount of core programming. In the absence of a challenge to their license renewal, licensees would not be required to submit materials documenting their programming performance, but only to retain them in their public inspection files. We also seek comment on the following preliminary views. If we instituted a certification procedure in the case of either a safe harbor processing guideline or a programming standard, we believe that stations should be allowed to certify both to airing a sufficient amount of programming themselves and to sponsoring programming in conformance with our sponsorship proposal described below. A certification scheme should not diminish the duty of each licensee to provide full information about its children's programming to the public because we think it is important for parents, educators, and others to have the fullest programming information possible. We believe that full information for the public would assist parents and others in providing a check on licensees' certifications. Of course, if we opt to monitor licensees' programming performance, a certification procedure would be unworkable because we would need to collect programming information from all licensees.

76. We note that when we adopted our current rules, we stated that the legislative history of the CTA suggests that we should review the licensee's children's programming records, and that certification of compliance with the CTA's programming requirement would not provide us with enough information to perform the type of review apparently intended by Congress.(n111) We believe, however, that it may be consistent with Congressional intent to require submission of documentation only from those stations that are unable to certify compliance with either a processing guideline or a programming standard. We also believe that our conclusion on this point is buttressed by the steps we are also proposing to take with respect to requiring the improved provision of information to parents. We seek comment on whether every licensee, or only those not meeting a numerical guideline or standard, should be required to submit children's programming information for FCC review.

7. Program Sponsorship

77. As explained above, a third principle we wish to follow is, if we further define a licensee's obligations, to permit licensees to allow the marketplace to determine, to the greatest extent possible, the means available to stations for fulfilling their programming obligation. Thus, if we adopt either a safe harbor processing guideline or a programming standard, we will consider the adoption of "program sponsorship" rules that would give licensees the option of either themselves airing the entire prescribed amount of children's programming, or airing a portion of the prescribed amount themselves and taking responsibility for the remainder by providing financial or other "in-kind" support for programming aired on other stations in their market. At license renewal time, the station sponsoring educational programming shown elsewhere (the "sponsor station") would take credit for the programs it had funded on the other station (the "host station"). We seek comment on this idea, as well as the suggestions set forth below for implementing it and any advantages or disadvantages it might have for the children's programming marketplace.

78. Because the CTA refers to "a licensee's programming" and states that efforts to support programming on other stations may be considered "in addition" to the licensee's own programming, we conclude that the CTA precludes us from allowing a licensee to meet either a processing guideline or a programming standard entirely by sponsoring programming on other stations in the same market.(n112) We therefore suggest that, if we adopt any level of processing guideline or programming standard, each station should be required to air at least 1 hour of core educational and informational programming itself and that each be allowed to fulfill the remaining hours of the guideline or standard by sponsoring core programming on other stations. Thus, if an initial processing guideline of an average of 3 hours of core programming per week were adopted, a station could meet it by airing 1 hour of qualifying programming itself and sponsoring 2 hours of qualifying programming on other stations. Similarly, if an ultimate guideline of an average of 5 hours of core programming per week were adopted, a station could meet it by airing 1 hour of qualifying programming itself and sponsoring 4 hours of qualifying programming on other stations. In the alternative, should the amount of qualifying programming aired by the station itself be a percentage of the amount specified by the guideline or standard, e.g., one third?

79. We believe that a program sponsorship system could provide licensees with more options in meeting either a processing guideline or a programming requirement and lead to more efficient production of core educational programming by encouraging entities with more expertise in and commitment to children's educational programming to take responsibility for the production and distribution of more such programming. An increase in the efficiency of children's program production and distribution could, in turn, result in more core children's programming of higher quality. A program sponsorship system could also serve to minimize any economic cost of meeting a processing guideline or programming requirement. The opportunity costs of airing core educational programming will vary from station to station depending upon differences in a number of factors, including program costs, audience size, and advertising rates. A program sponsorship system would enable stations to minimize the opportunity costs of meeting a processing guideline or programming requirement by permitting stations with the greatest such costs to finance the production of programming to be shown on stations with lower opportunity costs. We recognize, of course, that the net result of such arrangements might be to shift a large portion of the available educational programming off the more popular stations in a market and concentrate them on the least popular stations, which could be an argument against permitting program sponsorship. On the other hand, such a result could in fact have the advantage of creating a channel on which children and parents would be sure of finding educational and informational programming. We seek comment on these issues.

80. In particular, we ask interested parties to comment on whether antitrust law would limit the extent to which stations in a market may cooperate through program sponsorship efforts. In this regard, we believe that a "rule of reason" analysis would generally apply to such arrangements.(n113) It is our tentative conclusion that broadcasters' collective efforts to satisfy their educational and informational children's programming obligations through program sponsorship do not create any inherent antitrust problems. As mentioned previously, the CTA is predicated on the failure of the market to provide a sufficient amount of educational and informational programming for children. Thus, Congress has decided to supplant the free operation of the market with respect to children's programming. In addition to the production and distribution efficienciesdiscussed above, another important consideration in this regard is that broadcasters would not be permitted to fulfill their entire programming obligation under the CTA by sponsoring programs on other stations. This residual requirement decreases the likelihood that one station would be able to acquire purchasing power in the children's programming production market.

81. We also seek comment on the tentative views set forth below regarding how a program sponsorship system should work. The CTA and our rules already permit stations to receive credit at license renewal time for supporting educational programming on another station in their market.(n114) Indeed, we have held that if one station produces or buys children's programs broadcast on another station, so as to qualify under 47 U.S.C. § 303b(b)(2), both stations may rely on such programming in their license renewal applications.(n115) We now seek comment on whether that holding was correct, or whether it undermines the CTA by permitting "double counting." If applied to either a processing guideline or a programming requirement, such double counting could lead to a substantial reduction in existing levels of children's educational programming. It therefore appears that, at least for the purpose of meeting a processing guideline or programming requirement, host stations should not be permitted to claim credit for sponsored programming.

82. It is also our view that a station should be allowed to sponsor programs for the purpose of meeting a processing guideline or programming requirement only on host stations that serve largely the same potential viewers. Otherwise, audiences in some markets might end up with little or no educational children's programming. In addition, broadcasters' obligations to serve the public interest applies to the market in which they are licensed to operate. On the other hand, we do not believe that we should require sponsor and host stations to serve exactly the same area because such a requirement would unduly limit the program sponsorship options available in many markets. Taking into account these competing considerations, it would seem sensible to require that, when any portion of a station's programming that is claimed to satisfy a processing guideline or programming requirement consists of programming shown on another station, the signal of the host station cover 80 percent of either the community of license or the area encompassed within the grade A or grade B contour of the sponsor station. We seek comment on these ideas and also ask how we should evaluate sponsored programming when the 80 percent threshold is not met, whether the sponsored programming is relied upon to meet a processing guideline, relied upon to meet a programming requirement, or used by the licensee to satisfy its overall programming obligation under the CTA. We also ask whether commercial stations should be allowed to sponsor educational programs on noncommercial stations, and how such sponsorshipwould support the purposes underlying both the CTA and the noncommercial educational licenses.

83. If we adopt program sponsorship rules, it appears to us that stations involved in program sponsorship should be required to list and describe in their public children's programming reports programs shown on other stations as a result of their financial or in-kind contributions. At a minimum, a station should include a description of all sponsored programs, identify the host station on which each program was aired, and provide the time the program aired. We ask for comment on the feasibility of this proposal and how it should be implemented, as well as any other information about sponsored programs that should be provided to the public.

84. To further provide for public accountability, we also think that the host station should identify the sponsor station of every sponsored program at the time it is aired. This would ensure that the sponsor's good name stands behind the sponsored program. We seek comment on this idea.

85. In addition to seeking comment on any other necessary aspects of a program sponsorship system not identified herein, we invite commenters to identify alternatives to our suggested approach to program sponsorship, including alternative definitions of the relevant market for sponsorship agreements. We also welcome the submission of data regarding the economic feasibility of a program sponsorship system and whether such a system would in fact reduce the overall cost of airing educational programming. More specifically, we invite commenters to include in the industry-wide studies of the costs of providing educational children's programming, described in paragraph 65, information regarding how program sponsorship arrangements might affect those costs.

D. Reexamination of Rules

86. If we adopt either a processing guideline or a programming standard, we would intend that the resulting regulatory changes would be made on a provisional or experimental basis, rather than as permanent changes. It is our hope that any such guideline or standard, together with the other changes we propose, will effectuate a significant improvement in television broadcasters' service to children, and also will enable parents to monitor the performance of stations in their communities and ensure through their actions that the CTA's objectives are met.

87. In accordance with these expectations, and to ensure periodic review of the necessity and efficacy of a guideline or standard, we seek comment on whether we should sunset any regulatory changes related to the possible implementation of either of these two options, absent additional Commission action, on December 31, 2004, unless affirmatively extended by the Commission. This date is one year after the close of the renewal cycle for the last group of stations to come up for renewal after rules would be adopted in this proceeding, and would allow the Commission, prior to the sunset, theopportunity to evaluate fully the effects of any rules adopted here. Thus, it would be our intention to undertake a review prior to the sunset date.

90. Comment Information. Pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the Commission's Rules, 47 C.F.R. Sections 1.415 and 1.419, interested parties may file comments on or before June 16, 1995 and reply comments on or before July 17, 1995. All relevant and timely comments will be considered by the Commission before final action is taken in this proceeding. To file formally in this proceeding, participants must file an original and four copies of all comments, reply comments, and supporting comments. If participants want each Commissioner to receive a personal copy of their comments, they must file an original plus nine copies. Comments and reply comments should be sent to Office of the Secretary, Federal Communications Commission, Washington, D.C. 20554. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center (Room 239), 1919 M Street, N.W., Washington, D.C. 20554.

91. Initial Regulatory Flexibility Analysis. As required by Section 603 of the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the expected impact on small entities of the proposals suggested in this document, set forth in Appendix C. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines as comments on the rest of the Notice, but they must have a separate and distinct heading designating them as responses to the Regulatory Flexibility Analysis. The Secretary shall send a copy of this Notice of Proposed Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with paragraph 603(a) of the Regulatory Flexibility Act (Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. § 601 et seq., (1981)).

92. Additional Information. For additional information regarding this proceeding, contact Diane Conley or Kim Matthews, Mass Media Bureau, Policy and Rules Division, (202) 776-1653.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton
Acting Secretary

Act III Broadcasting, Inc.
American Academy of Pediatrics
American Psychological Association
Associated Broadcasters, Inc., and Galloway Media, Inc.
Association of Independent Television Stations, Inc.
Cannell Communications, L.P.; Cosmos Broadcasting Corporation; Cox Broadcasting;
Great American Television and Radio Co., Inc.; Midcontinent Media, Inc.; Multimedia Broadcasting Company; River City Broadcasting, L.P.; Scripps Howard Broadcasting Company; Tak Communications, Inc.; Wabash Valley Broadcasting Corp.
Capital Cities/ABC, Inc.
CBS Inc.
Center for Media Education; American Association of School Administrators; Association for Library Service to Children/American Library Association; Center for the Study of Commercialism; Peggy Charren; Consumer Federation of America; Council of Chief State School Officers; Dr. Vincent Hutchins, MD, MPH; National Association for Better Broadcasting; National Association of Child Advocates; National Association of Elementary School Principals; National Association for Families and Community Education; National Black Child Development Institute, Inc.; National Council of La Raza; National Education Association; and National PTA
Children's Television for the '90s
Children's Television Workshop
The Connecticut Broadcasters Association; The Illinois Broadcasters Association; The
Iowa Broadcasting Association; The Michigan Association of Broadcasters; The Minnesota Broadcasters Association; The Missouri Broadcasters Association; The Nebraska Broadcasters Association; The New Hampshire Association of Broadcasters; The Oklahoma Association of Broadcasters; The Tennessee Association of Broadcasters; The Washington State Association of Broadcasters; The West Virginia Broadcasters Association; The Wisconsin Broadcasters Association
Duhamel Broadcasting Enterprises
Fox Children's Network
Haley, Bader & Potts
Dr. Dale Kunkel, University of California, Santa Barbara
National Association of Broadcasters
National Association for the Education of Young Children
National Broadcasting Company, Inc.
National Coalition on Television Violence
New York State Board of Regents and Thomas Sobol, President of
the University of the State of New York and Commissioner of Education
South Florida Preschool PTA
Thirty-Six Television Stations: KBSD, Ensign, KS; KBSH, Hays, KS; KBSL, Goodland,
KS; KEYT, Santa Barbara, CA; KFYR, Bismarck, ND; KGAN, Cedar Rapids, IA; KMOT, Minot, ND; KOVR, Stockton, CA; KQCD, Dickinson, ND; KSTS, San Jose, CA; KTMD, Galveston, TX; KTVO, Kirksville, MO; KUMV, Williston, ND; KVDA, San Antonio, TX; KVEA, Corona, CA; KWCH, Hutchison, KS; WATM, Altoona, PA; WAXA, Anderson, SC; WCFT, Tuscaloosa, AL; WDAM, Laurel, MS; WETM, Elmira, NY; WGGB, Springfiled, MA; WGME, Portland, ME; WHTM, Harrisburg, PA WICS, Springfield, IL; WKAQ, San Juan, PR; WLOS, Asheville, NC; WLUC, Marquette, MI; WNJU, Linden, NJ; WPBN, Traverse City, MI; WSCV, Ft. Lauderdale, FL; WSTM, Syracuse, NY; WSYX, Columbus, NC; WTMJ, Milwaukee, WI; WTOM, Cheboygan, MI; WWCP, Johnstown, PA
Tribune Broadcasting Company
United States Catholic Conference
The Walt Disney Company
Ellen Wartella, University of California, Santa Barbara, and University of Illinois, Urbana- Champaign; and Norma Pecora, Emerson College
Westinghouse Broadcasting Company, Inc.
WTTE, Channel 28 Licensee, Inc.

The following parties filed formal reply comments in response to the FCC's Notice of Inquiry:

American Psychological Association
The Arizona Broadcasters Association; The Maryland/District of Columbia/Delaware Broadcasters Association; The North Dakota Broadcasters Association
Association of Independent Television Stations, Inc.
Center for Media Education; American Association of School Administrators; Association for Library Service to Children/American Library Association; Center for the Study of Commercialism; Peggy Charren; Consumer Federation of America; Council of Chief State School Officers; Dr. Vincent Hutchins, MD, MPH; International Reading Association; National Association for Better Broadcasting; National Association of Child Advocates; National Association of Elementary School Principals; National Association for Families and Community Education; National Black Child Development Institute, Inc.; National Council of La Raza; National Education Association; and National PTA
Children's Television for the '90s
Haley, Bader & Potts
Dr. Dale Kunkel, University of California, Santa Barbara
National Association of Broadcasters
National Broadcasting Company, Inc.
Frank Allen Philpot
Pulitzer Broadcasting Company
Turner Broadcasting System, Inc.
The Walt Disney Company

Panel 1 -- Educational and Informational Programming: Will We Know It When We See It?

Capital Cities/ABC, Inc. -- Jeanette B.Trias, President, ABC Children's Entertainment
Children Now -- James P. Steyer, President
Children's Television Workshop -- David V.B. Britt, President and CEO, and Sheldon
Turnipseed, actor in CTW "Ghostwriter" series
Fox Children's Network -- Margaret Loesch, President
National Broadcasting Company, Inc. -- Dr. Karen Hill-Scott, independent consultant
National Education Association -- Dr. Gary D. Watts, formerly Senior Director of NEA's
National Center for Innovation and Assistant Executive Director of NEA's Center for
Teaching and Learning
The National PTA -- Catherine A. Belter, Vice President for Legislative Activity
The Walt Disney Company -- Kenneth D. Werner, Senior Vice President of Business Affairs,
Walt Disney Television, and Bill Nye, Creator and Host, "Disney Presents: Bill Nye
the Science Guy"
World African Network -- Phyllis Tucker Vinson Jackson, Executive Vice President

Panel 2 -- Educational and Informational Programming: How Much Is Enough?

American Psychological Association -- Dr. Dale Kunkel, Dept. of Communications,
University of California, Santa Barbara
Peggy Charren, Founder, Action for Children's Television
Millicent Green, 7th-grade student and correspondent for Children's Express
Interfaith Broadcasting Commission -- Dr. Richard McCartney, Chairman
Maryland Campaign for Kids' TV -- Charlene Hughins Uhl, Director, Ready At Five
National Association of Broadcasters -- Paul A. La Camera, Vice President and General
Manager, WCVB-TV, Boston, MA
National Association of Television Program Executives -- Bruce Johansen, President and
COO of NATPE International
Squire Rushnell, former Vice President of Children's Television, ABC

Panel 3 -- The Economics of Providing Educational and Informational Programming for Children

Association of Independent Television Stations, Inc. -- Peter Walker, Vice President and
General Manager, WGN-TV, Chicago, IL
CBS, Inc. - Johnathan Rodgers, President, CBS Television Stations Division
Center for Media Education -- Dr. Kathryn Montgomery, President
Corporation for Public Broadcasting -- Sheila Burke Tate, Chairman, CPB Board of Directors
Hastings College Social Research Center -- Dr. James H. Wiest, Professor of Sociology and
Director, HCSRC, and Dr. Ronald Davis, Associate Professor of Broadcasting and
Director of Telecommunications, Hastings College
KIDSNET -- Karen W. Jaffe, Executive Director
Shari Lewis
Nickelodeon -- Geraldine Laybourne, President
The Univision Television Network -- Jaime Davila, Chairman

(Panel participants also submitted written comments and/or summaries of their remarks.)

The following parties did not give oral testimony but submitted formal comments in connection with the en banc hearing:

Act III Broadcasting, Inc.
American Academy of Children's Entertainment
Jok Church
Nancy Kroll
The Media Institute
National Basketball Association
National Stuttering Project
Radio-Television News Directors Association and The Reporters Committee for Freedom of the
Press

The following parties submitted formal reply comments in connection with the en banc hearing:

Association of Independent Television Stations, Inc.
Capital Cities/ABC, Inc.
Center for Media Education; American Association of School Administrators; Center for
the Study of Commercialism; Peggy Charren; Consumer Federation of America; Council of Chief State School Officers; National Association of Child Advocates; National Association of Elementary School Principals; National Association for Families and Community Education; National Black Child Development Institute; National Council of La Raza; National Education Association; and National PTA.
Children's Television Workshop
Hastings College Social Research Center -- Dr. James H. Wiest and Dr. Ronald D. Davis
National Association of Broadcasters
National Broadcasting Company, Inc.

Newton N. Minow with Craig L. LaMay, for the Public-Service Television Project of the
American Academy of Arts and Sciences
Office of Communication of the United Church of Christ
Radio-Television News Directors Association and The Reporters Committee for Freedom
of the Press

I. Reason for the Action: This proceeding was initiated to explore ways to implement the Children's Television Act of 1990 more effectively.

II. Objective of This Action: The actions proposed in this Notice are intended to give licensees clear, simple, and fair guidance regarding their children's programming obligation; to increase the flow of programming information to the public to facilitate enforcement of the Children's Television Act of 1990; and to allow the marketplace to determine to the fullest extent possible the means that licensees use to meet their programming obligation. Other objectives are to increase the amount of available television broadcast programming that meets the educational and informational needs of children and to promote efficiency in the production and distribution of such programming.

III. Legal Basis: Authority for the actions proposed in this Notice may be found in Sections 1 and 303 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 303; and Section 103 of the Children's Television Act of 1990, 47 U.S.C. § 303b.

IV. Number and Type of Small Entities Affected by the Proposed Rules: Approximately 1,200 existing commercial television broadcasters of all sizes may be affected by the proposals contained in this Notice.

V. Reporting, Record-keeping, and Other Compliance Requirements Inherent in the Proposed Rule: The Notice seeks comment on modifying current record-keeping and reporting requirements to include a requirement that licensees demonstrate compliance with proposed rule changes in their children's programming report, and seeks comment on requiring licensees to make programming information more accessible to the public. The Notice seeks comment on whether stations should be required to separate their children's programming reports from other material in the public inspection file and broadcast announcements to alert the public of the existence of such reports. It also seeks comment on a certification requirement that would replace the current requirement for submission of detailed documentation to the Commission for those stations able to certify that they have met a safe harbor processing guideline or progamming standard.

VI. Federal Rules Which Overlap, Duplicate, or Conflict with the Proposed Rule: None.

VII. Any Significant Alternatives Minimizing the Impact on Small Entities and Consistent with the Stated Objectives of the Action: The proposals contained in this Notice are designed to encourage television broadcast programming that satisfies the requirements of the Children's Television Act of 1990, while minimizing the impact on small entities.

I.  SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.  BACKGROUND
   A.  The Current State of Children's Television Programming . . . . . . . . 9
   B.  The FCC's Rules and Current Proceeding . . . . . . . . . . . . . . .  13
III.  PROPOSED REVISIONS OF 
   A.Improving the Flow of Information to the Public to
     Facilitate Enforcement of the CTA. . . . . . . . . . . . . . . . . . .  21
   B.  Definition of Programming "Specifically Designed"
     to Serve Children's Needs. . . . . . . . . . . . . . . . . . . . . . .  27
   C.  Further Options. . . . . . . . . . . . . . . . . . . . . . . . . . .  45
      1.  Monitoring Broadcaster Performance. . . . . . . . . . . . . . . .  55
      2.  Safe Harbor Processing Guideline. . . . . . . . . . . . . . . . .  56
      3.  Programming Standard. . . . . . . . . . . . . . . . . . . . . . .  59
      4.Certain Issues Relevant to a Safe Harbor Processing
        Guideline and a Programming Standard. . . . . . . . . . . . . . . .  62
      5.  First Amendment Issues. . . . . . . . . . . . . . . . . . . . . .  66
      6.  License Renewal Procedures. . . . . . . . . . . . . . . . . . . .  74
      7.  Program Sponsorship . . . . . . . . . . . . . . . . . . . . . . .  77
   D.  Reexamination of Rules . . . . . . . . . . . . . . . . . . . . . . .  86
IV.  CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  88
V.  ADMINISTRATIVE MATTERS. . . . . . . . . . . . . . . . . . . . . . . . .  89
APPENDIX A
APPENDIX B
APPENDIX C

Footnote 1 Children's Television Act of 1989, Senate Committee on Commerce, Science and Transportation, S. Rep. No. 227, 101st Cong., 1st Sess. 1, 9 (1989) ("Senate Report").

The other provisions of the CTA, those intended to protect children from overcommercialization of programming, are not at issue in this proceeding.

Footnote 2 Children's Television Act of 1990, Title I, sec. 101.

Footnote 3 Senate Report at 7.

Footnote 4 Children's Television Act of 1989, House Committee on Energy and Commerce, H. Rep. 385, 101st Cong., 1st Sess. 1, 10 (1989) ("House Report").

Footnote 5 Id.; Senate Report at 16.

Footnote 6 47 U.S.C. § 303b(a)(2).

Footnote 7 Report and Order, In the Matter of Policies and Rules Concerning Children's Television Programming and Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log Requirements for Commercial Television Stations, MM Docket Nos. 90-570 and 83-670, 6 FCC Rcd 2111 ("Report and Order"), recon. granted in part, 6 FCC Rcd 5093 (1991) ("Memorandum Opinion and Order").

Footnote 8 The data also indicate that children ages 6 to 17 watch the most television during prime time. For children 2 to 5 years old, the most popular viewing time period is 10:00 a.m to 4:00 p.m. Monday through Friday, with prime time the second most popular. Television Audience 1993, at 14, Nielsen Media Research, 1993. These figures reflect all television viewing, regardless of station type, except for VCR playback. However, information regarding the breakdown of these figures among different media (e.g., over-the-air, cable, MMDS) is not available.

Footnote 9 See Senate Report at 5. See also House Report at 5. Children usually begin watching television before they start school, and they watch on weekends and during the summer when they are not in school.

Footnote 10 See Senate Report at 5.

Footnote 11 Id.

Footnote 12 Id.

Footnote 13 See supra para. 1 (citing Children's Television Act of 1990, Title I, Sec. 101).

Footnote 14 See Senate Report at 6 (citing Huston, Watkins and Kunkel, Public Policy and Children's Television, American Psychologist, February, 1989 ("Huston et al.")). We are aware as well that some researchers have questioned the "learning gain" of children who watch "Sesame Street." See, e.g., Sorry, Ernie. TV Isn't Teaching, New York Times, November 12, 1994. Nonetheless, based on other studies and evidence, Congress has determined that children benefit in important ways from viewing educational and informational programming.

Footnote 15 See Milton Chen, Six Myths About Television and Children, Media Studies Journal, Fall 1994, at 108-09 (citing Dr. Daniel Anderson, Professor of Psychology, University of Massachusetts, Amherst).

Footnote 16 See, e.g., Senate Report at 6.

Footnote 17 See Huston et al. at 425-26.

Footnote 18 The surveys also illustrated television's impact on children through their own stated concerns regarding the values portrayed on television, with over 60 percent of the children surveyed saying that television encourages such negative values as disrespect for their parents and having sex when they are too young, and 82 percent of the children surveyed saying that television should teach right from wrong. Sending Signals: Kids Speak Out About Values in the Media (a Children Now Poll Conducted by Fairbank, Maslin, Maulin & Associates (1995)).

Footnote 19 U.S. Congress, Office of Technology Assessment, Critical Connections: Communication for the Future, 181, 182 (1990).

Footnote 20 Senate Report at 7, 9.

Footnote 21 Id. at 9.

Footnote 22 47 U.S.C. § 303b(a)(2).

Footnote 23 47 U.S.C. § 303b(b)(1) & (2).

Footnote 24 47 C.F.R. § 73.671 Note.

Footnote 25 See Report and Order,, 6 FCC Rcd at 2115; Memorandum Opinion and Order, 6 FCC Rcd at 5100.

Footnote 26 Notice of Inquiry in MM Docket No. 93-48, 8 FCC Rcd 1841, 1841 (1993). We received 29 formal comments and 13 formal reply comments in response to our NOI. A list of the parties filing these comments is contained in Appendix A.

Footnote 27 Id. at 1842.

Footnote 28 Id. at 1843.

Footnote 29 See En Banc Hearings on Children's Television in MM Docket No. 93-48, June 28, 1994. In addition to the testimony and comments submitted by hearing panelists, we received eight formal comments in connection with the en banc hearing, and ten formal replies. A list of the hearing participants and parties submitting these comments is contained in Appendix B.

Following the release of our NOI and our en banc hearing, we received more than 500 informal comments, including letters from individual members of the public, favoring one or more of the rule changes suggested in our NOI. In addition, we received hundreds of letters from the public generally supporting stricter rules governing children's educational and informational television programming, and 23 letters from the public generally opposing stricter rules governing such programming.

Footnote 30 See NAB En Banc Reply Comments at 2-4 and Attachment 1. NAB asked commercial television stations to list their children's programming that met the following definition: programming originally produced and broadcast for an audience of children 16 years of age and younger which serves their cognitive/intellectual or social/emotional needs. (Although NAB styled this document "Comments," it is referred to herein as Reply Comments because it was filed on the deadline for reply comments and responds to comments filed by other parties.)

Footnote 31 See INTV En Banc Reply Comments at 2-3 and Appendix A at 5-7. INTV's survey of its member stations included both non-affiliated independent stations and Fox-affiliated independent stations. Unlike NAB, INTV did not ask respondents to report programming conforming to a precise definition, but, rather, asked them to list all programs broadcast during the first quarter of 1990 and the first quarter of 1994 that the stations believed satisfied the FCC's requirements to provide programming that met the educational and informational needs of children. According to INTV's results, respondents reported airing 42 such programs per week during the first quarter of 1990, and 322 such programs per week during the first quarter of 1994. However, INTV did not supply an average number of hours per week for the first quarter of 1990.

INTV also conducted a study of market clearances (i.e., times a program aired in a market) of syndicated children's educational programs which showed that from 1990 to 1993 the number of such market clearances increased from 576 to 1,746. INTV states that its study of market clearances included only programs it believed were "unquestionably" educational and informational and provided a list of these programs. See INTV En Banc Reply Comments, Appendix A, at 2-4.

Footnote 32 Kunkel NOI Comments at 3-4, 6-7. Dr. Kunkel's study contains a list of programs identified by stations as specifically designed to meet children's educational needs, which include programs such as "G.I. Joe," "Teenage Mutant Ninja Turtles," "The Jetsons," and "Full House." Id., Table 2.

Footnote 33 Squire Rushnell En Banc Comments.

Footnote 34 Such programs include, for example, "Super Mario Brothers" and "Slimer--The Real Ghostbusters." Other stations have claimed credit for their general audience news programming or game shows such as "Wheel of Fortune." The NAB and INTV studies did not identify the specific programs reported as "educational" in their survey results.

Footnote 35 See CME et al. NOI Comments at 3-5 and Appendix A-1. (CME submitted its NOI Comments and Reply Comments, and its En Banc Reply Comments, in conjunction with a number of other organizations, which are identified in Appendixes A and B.) NAB challenged CME's conclusions, arguing that the renewal applications reviewed were filed only shortly after the Commission's children's programming rules became effective, at a time when stations had had little opportunity to adjust to the new requirements. See NAB En Banc Reply Comments at 10.

Footnote 36 CME et al. criticized the NAB study on this ground among others. See CME et al. En Banc Reply Comments at 4-7 and Appendix.

Footnote 37 See NAB En Banc Reply Comments, Attachment 5. The results of other studies submitted also have limitations. For example, that of the South Florida Preschool PTA (see South Florida PTA NOI Comments), which claims that the amount of educational programming aired by commercial stations in the area it surveyed is insufficient, is limited in geographical scope.

Footnote 38 We also note in this context that, under our present policy, we require the licensee to submit at renewal time the summary of its programming response and other efforts directed to the educational and informational needs of children that it maintains in its public file. Report and Order, 6 FCC Rcd at 2116. We have further specified that such records should include programming specifically designed to serve children's educational and informational needs and should indicate, at a minimum, the time, date, duration and a brief description of the program or nonbroadcast effort the licensee has made. 47 C.F.R. § 73.3526(a)(8)(iii); Report and Order, 6 FCC Rcd at 2116. See also Memorandum Opinion and Order, 6 FCC Rcd at 5102 ("[C]ommercial licensees must submit all of their children's program lists at renewal time. . . . Interested members of the public have the right to know the basis for a claim that a station has met the educational and informational needs of children.") Dr. Kunkel, in his study of license renewal applications filed in 1992, found that more than a quarter of all stations failed to comply with these reporting requirements. More than one-fifth of stations did not identify any of their claimed educational content as "specifically designed for children," while others submitted only lists of their children's program titles, omitting other related information such as days and times of broadcast or providing no content descriptions. Kunkel NOI Comments at 1, 3-7. We emphasize that we expect our licensees to comply with our reporting requirements.

Footnote 39 The American Psychological Association ("APA"), which proposed in response to our NOI the empowerment of the public through information, indicated that better programming information, and in particular advance notice of educational programs, would assist parents in selecting programs for their children. APA NOI Comments at 5-6. Dr. Kunkel and The National PTA, too, advocated such advance notice to help parents make programming choices. Kunkel NOI Reply Comments at 17-19; The National PTA En Banc Comments at 14-15.

Footnote 40 See Hamilton, Marketing Violence: The Impact of Labeling Violent Television Content, Dewitt Wallace Center for Communications and Journalism Working Paper Series, Terry Sanford Institute of Public Policy, Duke University, December 1994. This study indicates, using a regression analysis compensating for external factors such as scheduling, promotion, and content and program preferences of various demographic groups, that viewing among children 2 to 11 was statistically significantly lower for movies carrying viewer discretion advisories. These results provide, among other things, statistical support from ratings data for the conclusion that parents do act upon information contained in program advisories to discourage the viewing of violent or otherwise objectionable programming among children.

Footnote 41 APA NOI Comments at 5-6. See also Kunkel NOI Reply Comments at 17-19; The National PTA En Banc Comments at 14-15; CME et al. NOI Comments at 37-39.

Footnote 42 Such methods are used in other countries. Australian television stations, for example, use an icon indicating a program suitable for children prior to showing a children's program.

Footnote 43 See 47 C.F.R. § 73.3526(a)(8)(iii).

Footnote 44 47 U.S.C. § 303b(a)(2); 47 C.F.R. § 73.671(a).

Footnote 45 47 C.F.R. § 73.671 Note.

Footnote 46 Memorandum Opinion and Order, 6 FCC Rcd at 5099.

Footnote 47 Id. (citing 136 Cong. Rec. S. 10121 (remarks of Sen. Inouye) (July 19, 1990)).

Footnote 48 Report and Order, 6 FCC Rcd at 2114-15.

Footnote 49 8 FCC Rcd at 1842-43.

Footnote 50 See NAB NOI Comments at 19-20. See also INTV NOI Comments at 11-12 and NOI Reply Comments at 1-6; Tribune NOI Comments at 4.

Footnote 51 See, e.g., CME et al. NOI Comments at 9-12; Charren En Banc Comments at 12.

Footnote 52 See, e.g., CTW NOI Comments at 6-8; Disney NOI Comments at 1-10 and En Banc Comments at 1-5; INTV NOI Comments at 12, NOI Reply Comments at 2-6, and En Banc Reply Comments at 11, 14-15; NAB NOI Comments at 21 and NOI ReplyComments at 6-7; CBS NOI Comments at 32-35; National Broadcasting Company, Inc. ("NBC") NOI Comments at 29-33 and En Banc Comments at 4-5; Thirty-Six Broadcasters NOI Comments at 12-14; and Pulitzer NOI Reply Comments at 7.

Footnote 53 See APA NOI Comments at 4-5; Westinghouse NOI Comments at 5-7.

Footnote 54 See Disney NOI Comments at 11-12, NOI Reply Comments at 6-11, and En Banc Comments at 5.

Footnote 55 See, e.g., INTV NOI Reply Comments at 6-10 and En Banc Reply Comments at 13-14; NAB NOI Comments at 18-19 and NOI Reply Comments at 5-6; Associated Broadcasters, Inc., and Galloway Media, Inc. NOI Comments at 3-6; ABC NOI Comments at 2-6 and En Banc Comments at 4-5; Fox NOI Comments at 4-7 and En Banc Comments at 5-8; Duhamel Broadcasting Enterprises NOI Comments at 2-3.

Footnote 56 See, e.g., APA NOI Comments at 2-3 and NOI Reply Comments; Kunkel NOI Reply Comments at 7-14; CME et al. NOI Comments at 12-13.

Footnote 57 See, e.g., APA NOI Comments at 2-3 and NOI Reply Comments at 7; CME et al. NOI Comments at 13 and En Banc Reply Comments at 26-28; The National PTA En Banc Comments at 15-16.

Footnote 58 See Charren En Banc Comments at 12; CME et al. NOI Comments at 14-16.

Footnote 59 See CME et al. NOI Comments at 14-16.

Footnote 60 See CME et al. NOI Comments at 32-34. See also Charren En Banc Comments at 12; The National PTA En Banc Comments at 10-11, 12-13.

Footnote 61 See CTW En Banc Comments at 2-3.

Footnote 62 See The National PTA En Banc Comments at 12; CME et al. NOI Comments at 11 and En Banc Reply Comments at 12-13. CME et al. suggested in particular that the Commission adopt a revised general definition of educational and informational programming that would include programs that further an understanding of certain subjects and that this definition should be distinct from a definition of core programming. Several parties endorsed the CME-proposed definition, including Interfaith Broadcasting Commission ("Interfaith") (Interfaith En Banc Comments at 6), and Office of Communication of the United Church of Christ ("UCC") (UCC En Banc Reply Comments at 2). (Although UCC styled this document "Comments," it is referred to herein as Reply Comments because it was filed by the deadline for reply comments but not by the deadline for comments.) Interfaith and UCC would also include religion and positive moral values as appropriate topics for educational children's programming.

Footnote 63 Recent programs identified as such include, for example, "Beverly Hills 90210."

Footnote 64 We note that in proposing its "significant purpose" standard, Disney urges the Commission to discard the concept of "core" programming altogether. Disney NOI Reply Comments at 2-6. However, the CTA requires broadcasters to air programming specifically designed to be educational and informational, and it is this type of programming that is the focus of our concern.

Footnote 65 See, e.g., CME et al. NOI Comments at 34-37; The National PTA En Banc Comments at 11.

Footnote 66 See CME et al. NOI Comments at 35; The National PTA En Banc Comments at 11.

Footnote 67 See Report and Order at 2114; Memorandum Opinion and Order at 5100.

Footnote 68 See supra note 8 and Appendix D.

Footnote 69 See, e.g., Charren En Banc Comments at 12; The National PTA En Banc Comments at 8; CME et al. En Banc Reply Comments at 29-32. The APA suggests that core programming should be shown between 7:00 a.m. and 9:00 p.m. APA NOI Comments at 5.

Footnote 70 See supra note 8. See also Report and Order, Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, GC Docket No. 92-223, 8 FCC Rcd 704, 707 (1993), appeal pending sub nom. ACT v. FCC, Case No. 93-1092 (D.C. Cir.) (finding that most of children's television viewing occurs during prime time hours).

Footnote 71 See NAB En Banc Comments, Attachment 1, at 7, and Attachment 2A.

Footnote 72 See NOI, 8 FCC Rcd at 1842 n.12.

Footnote 73 See supra para. 24.

Footnote 74 See supra para. 27.

Footnote 75 See Report and Order, 6 FCC Rcd at 2114-15.

Footnote 76 See Senate Report at 23 and House Report at 17.

Footnote 77 See Memorandum Opinion and Order, 6 FCC Rcd at 5100.

Footnote 78 See Report and Order, 6 FCC Rcd at 2115.

Footnote 79 8 FCC Rcd 1841, 1842-43.

Footnote 80 INTV NOI Comments at 7-8; Tribune Comments at 1-2, 12-13; Act III NOI Comments at 10-11. INTV stated, for example: "Specificity will add much needed certainty to the renewal and licensing process." INTV NOI Comments at 7.

Footnote 81 INTV NOI Comments at 7-8.

Footnote 82 See, e.g., NAB NOI Comments at 3, 16-17; NBC NOI Comments at 9.

Footnote 83 See, e.g., NAB NOI Comments at 5-8, 10-12 and NOI Reply Comments at 2; Haley, Bader & Potts NOI Comments at 4-7. See also INTV NOI Comments at 3-4.

Footnote 84 See, e.g., NAB NOI Comments at 5-8, 10-12, NOI Reply Comments at 2, and En Banc Reply Comments; CBS NOI Comments at 3-5, 8-20; Haley, Bader & Potts NOI Comments at 8-9. See also INTV NOI Comments at 4, NOI Reply Comments at 11-12, and En Banc Reply Comments.

Footnote 85 See, e.g., Thirty-Six Broadcasters NOI Comments at 6-8; Westinghouse NOI Comments at 11; and Pulitzer NOI Reply Comments at 10.

Footnote 86 See, e.g., ABC NOI Comments at 13-17 and En Banc Reply Comments at 2; NBC NOI Comments at 20-25; The Media Institute En Banc Comments at 2-4.

Footnote 87 See INTV NOI Comments at 6-11. INTV and Tribune proposed that the Commission establish a safe harbor of 2 hours per week of educational children's programming. At least 1 hour would have to be standard-length programming designed to serve the educational and informational needs of children; the other hour could include entertainment and short-segment programming that serves the educational and informational needs of children. See INTV NOI Comments at 6, 10; Tribune NOI Comments at 12-15.

Footnote 88 See Charren En Banc Comments at 12; CME NOI Comments at 21-24; CTW NOI Comments at 12-13 and En Banc Comments at 3.

Footnote 89 See, e.g., The National PTA En Banc Comments at 8, 10; Interfaith En Banc Comments at 8; Maryland Campaign for Kid's TV En Banc Comments; CME En Banc Comments at 25; CME et al. En Banc Reply Comments at 23-26; Newton Minow En Banc Reply Comments at 3; UCC En Banc Reply Comments at 3.

Footnote 90 ABC states that 90 percent of network affiliates (not including Fox affiliates) have no regular weekday children's programs, while most independent stations air children's programs during the weekday "early fringe" time period (3:00 p.m. to 6:00 p.m. Eastern time). ABC NOI Comments at 18-19 and En Banc Reply Comments at 3. NAB states that network affiliates are providing more general news and information during weekday morning and late afternoon/early evening time periods, and air children's programs on the weekends when children are not in school. NAB En Banc Reply Comments at 5.

Footnote 91 ABC En Banc Reply Comments at 3-5. See also CBS NOI Comments at 24-25 and En Banc Comments at 7.

Footnote 92 NAB En Banc Reply Comments at 5-6.

Footnote 93 Data submissions should clearly identify the characteristics of the programs included in the data sets.

Footnote 94 Report and Order, 6 FCC Rcd at 2115; Memorandum Opinion and Order, 6 FCC Rcd at 5100.

Footnote 95 See House Report at 17 ("The Committee does not intend that the FCC interpret this section as requiring or mandating a quantification standard governing the amount of children's educational and informational programming that a broadcast licensee must broadcast. . . ."); Senate Report at 23 ("The Committee does not intend that the FCC interpret this section as requiring a quantification standard governing the amount of children's educational and informational programming that a broadcast licensee must broadcast. . . .").

Footnote 96 See supra para. 18.

Footnote 97 See supra para. 16.

Footnote 98 See NAB NOI Comments at 5-8, 10-12; INTV NOI Comments at 4 and En Banc Reply Comments at 2-3.

Footnote 99 The term "repeat" generally refers to rebroadcasts aired within the same week, while rebroadcasts during later time periods are called "reruns."

Footnote 100 Richard Frank, then Chairman of Walt Disney Television & Telecommunications, made this suggestion in a speech delivered on March 3, 1995, to Children Now.

Footnote 101 Red Lion v. FCC, 395 U.S. 367, 388-89 (1969).

Footnote 102 Metro Broadcasting In. v. FCC, 497 U.S. 547, 567 (1990) (citing FCC v. League of Women Voters of California, 468 U.S. 364, 377 (1984)).

Footnote 103 Turner Broadcasting Inc. v. FCC, 114 S.Ct. 2445, 2457, reh'g denied, 115 S.Ct. 30 (1994), (Turner).

Footnote 104 FCC v. League of Women Voters of California, 468 U.S. 364 (1984) (League of Women Voters).

Footnote 105 Action for Children's Television v. FCC, 852 F.2d 1332, 1343 n. 18 (D.C. Cir. 1988) and Supreme Court Cases cited therein.

Footnote 106 Senate Report at 17; see also House Report at 11.

Footnote 107 The Court's decision in Turner lends support to the argument that, even if the "scarcity rationale" noted in League of Women Voters is abandoned, strict scrutiny will not be applied. That demanding standard is applied generally to rules that "distinguish favored speech from disfavored speech on the basis of the ideas or views expressed." 114 S.Ct. at 2459. It does not appear that a standard requiring a certain amount of programming aimed at children's educational and informational needs is not biased in favor of any particular viewpoints. The Court also made clear in Turner that "[i]t would be error to conclude . . . that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others." Id. at 2468. Thus, a special rule aimed at broadcasters might not be subjected to strict scrutiny as long as separate treatment is "justified by special characteristics" of broadcasting. In that connection, as noted above, broadcasters are given use of the spectrum and "broadcasting is uniquely accessible to children, even those too young to read." FCC v. Pacifica Foundation, 438 U.S. 726, 749 (1978).

Footnote 108 See Sable Communications v. FCC, 492 U.S. 115 (1989).

Footnote 109 In enacting the CTA, Congress found that: "Market forces have not worked to increase the educational and informational programming available to children on commercial television." Senate Report at 9. Congress also indicated that the CTA is intended to increase the "amount of educational and information broadcast television programming available to children. . . ." Id. at 1.

Footnote 110 See Syracuse Peace Council, 2 FCC Rcd 5043 (1987), aff'd on other grounds, 867 F.2d 654 (D.C. Cir. 1989), cert. denied, 493 U.S. 1019 (1990). Report and Inquiry into Section 73.1910 of the Commission's Rules and Regulations Concerning the General Fairness Doctrine Obligations of Broadcast Licensees, 102 FCC 2d 143 (1985), petition for review dismissed as moot, Radio-Television Directors Ass'n v. FCC, 831 F.2d 1148 (D.C. Cir. 1987).

Footnote 111 We stated in our Report and Order: "In order for the Commission to review a licensee's renewal application in accordance with the manner intended by Congress . . . we must receive sufficient information to determine the extent to which the licensee has responded to the educational and informational needs of children. Moreover, the legislative history strongly suggests that we should review the licensee's children's programming records in evaluating renewal applications." Report and Order, 6 FCC Rcd at 2116.

Footnote 112 The CTA states in pertinent part: "In addition to consideration of the licensee's programming as required under subsection (a) of this section, the Commission may consider--(1) any special nonbroadcast efforts by the licensee which enhance the educational and informational value of such programming to children; and (2) any special efforts by the licensee to produce or support programming broadcast by another station in the licensee's marketplace which is specifically designed to serve the educational and informational needs of children. 47 U.S.C. § 303b(b).

Footnote 113 A "rule of reason" analysis weighs all the circumstances of a particular case before determining whether a practice is an antitrust violation. See Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36 (1977); FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986). In certain circumstances, where cooperation between competitors leads to greater productivity or other benefits, the Supreme Court has undertaken this rule of reason analysis. See, e.g., NCAA v. Board of Regents of University of Oklahoma, 468 U.S. 85 (1984) (applying rule of reason analysis to agreement that restricted televising of college football games); Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979) (applying rule of reason analysis to agreement among competitors to provide and set price for a "blanket license" to air copyrighted music).

Footnote 114 Cf. 47 U.S.C. § 303b(b)(2) and 47 C.F.R. § 73.671(b).

Footnote 115 Report and Order, 6 FCC Rcd at 2115.