Overview of the New Children's Public Interest Obligations for Digital Television Broadcasters

On September 9, 2004 , the Federal Communications Commission issued new rules to improve children's television as the nation's broadcasters make the transition to digital television (DTV). By a unanimous vote, the five FCC commissioners established rules to help ensure that children have access to educational television programming and are protected from excessive advertising. This rulemaking constituted one of the most critical victories for children's media in recent years.

There has been strong opposition to the rules from the advertising, broadcast and cable industries, all of which filed petitions for reconsideration at the FCC last spring. In the last few weeks, both Viacom and Disney have filed lawsuits in the DC Circuit Court to challenge the rules and have threatened to overturn the Children's Television Act.

The FCC's new digital television rules are scheduled to go into effect on January 1, 2006 and are a tremendous benefit to the child audience. The FCC adopted many of the recommendations developed by the Children's Media Policy Coalition. Highlights from the new rules issued by the FCC include:

• Providing Commensurate Educational Programming

Currently, broadcasters are required to air three hours of children's educational/informational (E/I) programming per week. Since broadcasters will have up to six times the programming capacity in digital as they do in analog, they will now have to air a commensurate amount of children's educational programming. For example, a broadcaster that multicasts six 24-hour digital streams will now be required to provide 18 hours of educational programming per week. Additionally, at least three hours per week of the E/I programming must be aired on the broadcasters' primary channel.

• Helping Parents Find Educational Programming

The new FCC rules also require broadcasters to label educational/informational programming with a uniform “E/I” symbol that must be kept on the screen throughout the duration of a program. Before this rulemaking, the symbols used by broadcasters were not uniform and were aired only at the very beginning of a program, making educational shows very difficult for parents to identify.

In addition, the FCC rules also limit the preemption of educational programs to 10%. Under the Children's Television Act, broadcasters are required to air E/I programming at regularly-scheduled times. However, educational shows are often preempted (either not shown or rescheduled at a different time), making it difficult for parents. The new rules will help to guarantee that educational programming is identifiable and accessible.

• Counting Program Promotions Toward Advertising Limits

The FCC revised the definition of “commercial matter” to include promotions of television programs other than children's educational shows. The FCC's goal in making this revision was to reduce the number of commercial interruptions in children's programming and encourage the promotion of educational programming for children. (According to a recent FTC study, commercials and promotions account for more than fourth (27%) of programming time.) Broadcasters are still able to promote their shows but the time they spend on promotions counts toward their advertising time limits.

• Counting Displays of Commercial Websites During Children's Programs Toward Advertising Limits

Many broadcasters display Internet website addresses during children's program material (for example, in a crawl at the bottom of screen). The FCC was concerned that the display of such addresses for websites established solely for commercial purposes in children's programs was inconsistent with the mandate under the CTA to protect children, who are particularly vulnerable to commercial messages and incapable of distinguishing advertising from program material.

The FCC decided to interpret the CTA commercial time limits to require that, with respect to programs directed to children ages 12 and under, the display of Internet website addresses during program material is permitted as within the CTA limitations only if the website:

1) offers a substantial amount of bona fide program-related or other noncommercial content;

2) is not primarily intended for commercial purposes, including either e-commerce or advertising;

3) the website's home page and other menu pages are clearly labeled to distinguish the noncommercial from the commercial sections; and

4) the page of the website to which viewers are directed by the website address is not used for e-commerce, advertising, or other commercial purposes ( e.g ., contains no links labeled “store” and no links to another page with commercial material).

For websites meeting these requirements, the FCC will not limit the amount of time that the website address may be displayed during children's programs.

• Restricting How Program Characters Can Be Used on Television and the Internet to Sell Products to Children

In its 1974 Policy Statement, the FCC defined host-selling as the use of program characters to promote products. The FCC found that host-selling took unfair advantage of children in two main ways: 1) young children have difficulty distinguishing the programming content from the commercial content; 2) host-selling takes unfair advantage of the trust in which children place in program characters.

Because of the unique vulnerability of young children to host-selling, in last year's rulemaking, the FCC prohibited the display of website addresses in children's programs when the site uses characters from the program to sell products or services. This restriction on websites that use host-selling applies to website addresses displayed both during program material and during commercial material.

• Protecting Children from Interactive Advertising