In the Matter of PETITION OF ACTION FOR CHILDRENS TELEVISION (ACT) FORRULEMAKING LOOKING TOWARD

THE ELIMINATION OF SPONSORSHIP AND COMMERCIAL CONTENT IN CHILDREN'S PROGRAMING AND

THE ESTABLISHMENT OF A WEEKLY 14 HOUR QUOTA OF CHILDREN'S TELEVISION PROGRAMS

Docket No. 19142 RM-1569

28 F.C.C.2d 368

FCC 71-71

NOTICE OF INQUIRY AND NOTICE OF PROPOSED RULE MAKING

Adopted January 20, 1971

(Released January 26, 1971)

BY THE COMMISSION: COMMISSIONERS BARTLEY, ROBERT E. LEE, AND WELLS DISSENTING; COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT.

1. Notice of Inquiry and Notice of Proposed Rule Making in the above-captioned proceeding are hereby given.

2. By a submission received February 5, 1970, Action for Children’s Television (ACT) requested that the Commission adopt certain guidelines for television programming for children. The specific proposals of ACT are:

(a) There shall be no sponsorship and no commercials on children's programs.

(b) No performer shall be permitted to use or mention products, services or stores by brand names during children's programs, nor shall such names be included in any way during children's programs.

(c) Each station shall provide daily programming for children and in no case shall this be less than 14 hours a week, as part of its public service requirement. Provision shall be made for programming in each of the age groups specified below, and during the time periods specified: (i) Pre-school: Ages 2- 5 7 a.m.-6 p.m. daily, 7 a.m.-6 p.m. weekends; (ii) Primary: Ages 6-9 4 p.m.-8 p.m. daily, 8 a.m.-8 p.m. weekends; (iii) Elementary: Ages 10-12 5 p.m.-9 p.m. daily, 9 a.m.-9 p.m. weekends.

3. By Public Notice (Mimeo No. 44628) of February 12, 1970, the Commission announced that it had accepted the ACT submission as a petition for rule making, and assigned it file number RM-1569. Over 2,000 letters and other short memoranda were filed in support of the ACT proposal. A few letters were filed in opposition. The listed broadcasters, broadcaster associations and advertiser oriented organizations filed comments, which, in the main, opposed the ACT proposals. [FN1] ACT filed a detailed reply statement together with two statistical exhibits.

4. The letters filed in support of the ACT proposal contained, for the most part, general expressions of support for better programming and less 'hard sell' advertising on children's programs. The 20 or so letters opposing the ACT request rest mainly on the contention that parents should exercise proper control over their children's choice of programs.

5. The most lengthy pleadings in opposition to ACT's proposals will be dealt with in summary. The first of the most basic objections presented is that the three requests of ACT are violative of the First Amendment to the Constitution and Section 326 of the Communications Act of 1934, as amended. The second objection is that adoption of the proposals would contravene the long-standing policy whereby the Commission charges the licensee with the duty of making programming decisions that serve the public interest. The next objection is that the proposal is unworkable because of the difficulty of definition and classification of children's programs. The last objection is that prohibition of commercials on children's programs will be self-defeating in that it will dry up the major sources of children's programs because of the problem of funding such programs. Other correlative or subsidiary propositions raised in the pleadings are that the proposals would have a severe inhibiting effect on UHF television and other marginal television stations; that the NAB Code has been and is fully capable of regulation of this problem; and that the Commission should not substitute its judgment for proper parental control over the programming for children.

6. In support of their First Amendment and Section 326 contentions, the parties so arguing cite a number of well-known cases, including U.S. v. Paramount Pictures, Inc., 334 U.S. 131 (1948); Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); and New York Times v. Sullivan, 376 U.S. 254 (1964). Also cited, in support of the arguments concerning the limitations on the Commission's role in the program selection process, are past Commission pronouncements such as the 1960 Program Policy Statement [FN2] and Butte Broadcasting Company, Inc., 22 F.C.C.2d 7 (1970).

7. We recognize the importance and significance of these pronouncements and the concepts expressed in them. It may be that, ultimately, we will conclude that they substantially limit otherwise appropriate Commission action in this area. But it is also apparent that there are high public interest considerations involved in the use of television, perhaps the most powerful communications medium ever devised, in relation to a large and important segment of the audience, the nation's children. The importance of this portion of the audience, and the character of material reaching it, are particularly great because its ideas and concepts are largely not yet crystallized and are therefore open to suggestion, and also because its members do not yet have the experience and judgment always to distinguish the real from the fanciful.

8. The Commission does not have in its files sufficient data on children's TV programming upon which we can evaluate the situation to determine whether these public interest considerations in fact amount to a substantial public interest question as to whether the present use of the medium in this respect is as satisfactory as should be expected. Thus, we know that on many stations programming designed for children is available in substantial amount, but occasionally there have been complaints that in particular cases it is not. We also are aware that on some such programs there is vigorous selling of products designed for children's use. In order to arrive at an informed determination in this area, we need the data which this Inquiry proceeding is designed to elicit through the questions set forth below. This information will give us an idea of the scope of the problem if in fact one exists, and of how it may best be approached. We emphasize that we have not reached conclusions as to the matters referred to in paragraphs 5 and 6 above. In light of the above considerations, our authority to conduct this Inquiry proceeding, pursuant to Section 403 of the Act, is not seriously open to challenge.FN3

9. Definition of 'children's programming'. As noted above, one of the arguments against the ACT proposal is the difficulty of defining 'children's programs'. This is, indeed, not a easy matter, and we are not proposing, at this time, any final definition for comment. The matter of a suitable definition is among the general questions set forth in paragraph 11, below. However, it is also necessary to set forth some general guidelines for stations and others to use in presenting their material herein, so that there can be some uniformity and reasonably accurate evaluation. The programs chiefly involved herein are those which are primarily designed for children of the ages mentioned by ACT and referred to above. However, stations and other parties are also invited to list and comment on other programs which are of substantial interest to children even though not primarily designed for them.

10. The Commission is inviting comments and data on a number of questions. With respect to specific data requested, the Commission is setting up a composite week so that a representative sample may be secured, as well as to give specific guidelines and to somewhat alleviate the burden on the television networks and television station licensees. The Commission hopes and urges that all television networks and station licensees will furnish the specific program data requested for the composite week. The composite week for the specific data will be:

(TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE)

The listing of questions should not be construed as limiting in any way the area of comment.

11. (a) Data and comments are invited on the following questions:

1. What children's programs [FN4] were broadcast over your television network or television station? (Give name, date, time and length.) The listing of programs for the composite week should state whether the program was network produced, a syndicated production, locally produced or from other sources. The listing should also classify the programs as to being either entertainment or educational. It should also state whether it is an original showing or a re-run of the program. A short descriptive summary of each program would greatly assist the Commission in analyzing the data.

2. For each program listed above, list the sponsor or sponsors, or, if it were 'participating', the advertisers involved (if a program were sustaining, please so indicate). State with particularity the nature of the sponsorship or commercial participation, i.e., the products, stores or services advertised, and the total commercial time on each program.

3. Give the same information as in 2, above, for all commercial announcements adjacent to children's programs, i.e., all those presented after the end of the previous program and before the opening of the next program.

4. For each program listed above, state, if possible, whether the performers on the show conducted or participated in the delivery of commercial copy on the program; and whether there were any other oral reference to, or visual exposure of, a product by brand name.

5. For each program listed, state which age group, if any, it was designed for or of particular interest to.

6. Set forth your definition of 'children's programs' used in the compilation of the data submitted pursuant to this Notice.

(b) General questions.

1. What types of children's programs not now available do parties believe commercial TV stations should present?

2. To what extent, generally and with respect to particular programs and types of programs, does 'children's programming' have benefits to children beyond the fact that it holds their interest and attention and thus removes the need for other activity or parental attention?

3. What, generally speaking, is a definition of 'children's programming' which could serve for the Commission's use in this connection? To what extent do children, particularly in the higher age groups mentioned by ACT, view and benefit from general TV programming?

4. What restriction on commercials short of prohibition -- e.g., on types of products or services, what can be said, number, divorcement from program content, etc. -- would be desirable? Comments should take into account in this connection the provisions of the NAB Television Code and its guidelines.

5.To what extent should any restriction on commercial messages in children's programs also apply to such messages adjacent to children's programs?

12. We have also labeled this as a Notice of Proposed Rule Making, although as shown by the above discussion its primary focus is as an inquiry. Our reason for so designating the proceeding is two-fold. First, in the foregoing discussion, we have given notice of the subject matter and the issues, as required by the Administrative Procedure Act. Thus, the subject matter is children's programming on television, and the issue are the appropriate definition of children's programming; the nature of the commercials associated with such programming (e.g., no commercials or a limited number of commercials; no commercials by performers; divorcement from content of show, and the appropriateness and legality of the specification of the amount of time to be devoted to various categories of children's programming). Second, while we believe that the data to be collected from this inquiry is the most appropriate first step in this area and have reached no conclusion, tentative or final, on the desirability of a rule, it may be that on the basis of the data and the comments, a clear basis for a rule will emerge. If so, we wish to be in a position to take definitive action. In sum, by proceeding in this fashion, we insure the achievement of the prerequisite step -- the collection of an adequate data base -- and at the same time maintain maximum flexibility to take such action as the public interest may call for (e.g., further notice of proposed rule making; a rule; a rule with a further notice of proposed rule making; a policy statement).

13. Authority for the institution of this inquiry proceeding is found in Section 403 of the Communications Act of 1934, as amended. Authority for the institution of the rule making proceeding is contained in Sections 4(i) and 303, 307(d) and 309 of the Communications Act of 1934, as amended.

14. Pursuant to applicable procedures set forth in Section 1.51 and 1.419 of the Commission's Rules, an original and 14 copies of all material requested by this proceeding should be submitted on or before May 3, 1971, and reply comments on or before June 1, 1971. All relevant material will be considered by the Commission. In reaching its decision, if any, in this proceeding, the Commission may also take into account other relevant data before it, in addition to the specific data invited by this Notice.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

CONCURRING OPINION OF COMMISSIONER NICHOLAS JOHNSON

'We brag in this country that we are concerned with our children. We are, really, not.'
-- Senator Abraham Ribicoff [FN5]

By public notice of February 12, 1970 -- over ten months ago -- this Commission announced that it had accepted, as a petition for rule making, a submission by Action for Children’s Television urging the adoption of the following rules to govern all programming for children's television:

(a) There shall be no sponsorship and no commercials on children's programs.

(b) No performer shall be permitted to use or mention products, services or stores by brand names during children's programs, nor shall such names be included in any way during children's programs.

(c) Each station shall provide daily programming for children and in no case shall this be less than 14 hours a week, as part of its public service requirement. Provision shall be made for programming in each of the age groups specified below, and during the time period specified: (i) Pre-school: Ages 2-5 7 am.m.-6 p.m. daily, 7 a.m.-6 p.m. weekends; (ii) Primary: Ages 6-9 4 p.m.-8 p.m. daily, 8 a.m.-8 p.m. weekends; (iii) Elementary: Ages 10-12 5 p.m.-9 p.m. daily, 9 a.m.-9 p.m. weekends.

In response to the notice over 5,000 letters and other short memoranda were filed in support of the ACT proposal. Only a few letters were filed in opposition. Members of the broadcast industry and product and advertising associations filed 23 substantial pleadings in opposition. ACT, through counsel, filed a substantial reply pleading together with two lengthy exhibits prepared by research organizations.
Now, at long last, the Commission acts in the form of a 'Notice of Inquiry and Notice of Proposed Rule Making.' (Emphasis added). But there are no rules proposed at all!

In reality, this is simply another case of 'Due Processing them to death.' It is Kafkaesque that, after ten months, after 15 volumes of comments, this Commission has to tell concerned parents that '... we... have reached no conclusion, tentative or final, on the desirability of a rule....'

I believe that we should at the very least be ready by now to adopt specific proposals -- those proposed by ACT or whatever our own ingenuity could devise -- as a Proposed Rule Making. But that is not to be, and children will be barraged with potentially harmful propaganda for the next months and even years.

As William F. Fore has said, '... Saturday morning cartoons may not incite our nation's children to violence and rioting in the streets, but they may put the best parts of their minds to sleep. Which is worse?' Joseph Seldin has said: 'Manipulation of children's minds in the fields of religion or politics would touch off a parental storm of protest and a rash of Congressional investigations. But in the world of commerce children are fair game and legitimate prey.'

Chairman Burch has taken a leading role in attempts to bring Big Broadcasting closer to a realization of its awesome responsibility for one of our nation's most precious resources: our children. He invited the ACT members to an almost unprecedented personal presentation by private citizens of their concerns to the Commissioners. He supported putting their proposal out for comment. He has delivered public speeches to broadcasters and written article on the subject. He has met privately with network executives.

It is especially tragic and regrettable, therefore, that this commendable public leadership cannot see a flowering in something more substantial than this action. Of course, we cannot know now what rules we would ultimately adopt; but then we seldom do in proposed rule makings (most of which never become final, and certainly not in their proposed form). And of course it is desirable that the proceeding at least be denominated as a Notice of Proposed Rule Making. But the upshot is that the Commission today should have been able to put forward the terms of some rule, that it has not done so, that ultimate relief is therefore delayed, and that the continued exploitation of our children for commercial purposes will continue.

FN1 The following parties filed statements in response to the Public Notice: Licensees filing statements: American Broadcasting Companies; Broadcast-Plaza Inc.; Broadcasting Services, Inc.; Connecticut Television, Inc., et al.; Doubleday Broadcasting Company; The Houston Post Company; Hubbard Broadcasting, Inc., et al.; Kern County Broadcasting Co.; Meredith Corporation; National Broadcasting Company, Inc.; Palmer Broadcasting Company; Storer Broadcasting Company; Triangle Broadcasting Corporation; Van Curler Broadcasting Corporation; Westinghouse Broadcasting Company, Inc.; WGN Continental Broadcasting Company; WKY Television System, Inc., et al.; WTVY, Inc., Licensees filing Reply Statements; Bonneville International Corporation; Columbia Broadcasting System, Inc. Broadcaster Associations filing Statements: National Association of Broadcasters; North Dakota Association of Broadcasters; Virginia Association of Broadcasters. Other Statements: Toy Manufacturers of America, Inc.; Cognivising, Inc.; Ecumedia; American Association of Advertising Agencies; National Confectioners Association of the United States, Inc., et al.

FN2 Report and Policy Statement re: Commission en Banc Programming Inquiry (Docket 12782), 20 R.R. 1901, FCC 60-970 (1960).

FN3 It will be appropriate to re-examine the First Amendment question at such time as we contemplate definitive action. This Inquiry and the information elicited through it could be pertinent, among other things, to the Commission's duty, under Section 4(i) of the Act, to transmit to Congress significant data concerning the use of radio, and also legislative recommendations. It is also conceivable that the extent of the problem would be pertinent to the question of whether the First Amendment and Section 326 do apply to limit the Commission's role.

FN4 See paragraph 9, above. The information mentioned in these questions particularly relates to programs designed primarily for children, of the age groups mentioned herein. Parties are also invited to give as much information as is feasible with respect to other programs which are of substantial interest to, though not primarily designed for, children.

FN5 Cong. Rec., Dec. 9, 1970 S19728 (daily ed.).