Commission Seeks Further Comment On Children’s Television Programming Rules
On March 24, 2006, the FCC released the pleading cycle for the Children’s Television Obligations of DTV Broadcasters proceeding, Further Notice of Proposed Rulemaking (Notice). The Notice seeks public comment on a Joint Proposal filed by various broadcasting, cable and parent-advocate entities. Comments were due by April 24, 2006 and reply comments were due by May 8, 2006.
The Joint Proposal sought revisions to the rules adopted in the 2004 Children’s Television Obligations of Digital Television Order (2004 Order). The rules developed for Web-based advertising were most problematic under the 2004 Order.
Specifically, the Commission’s Web site rule was not discussed in the public record. The 2004 Order comment cycle, discussed a proposal to prohibit direct, interactive links to Web sites in Children’s programming. In the eventual Order, the Commission adopted a rule which prohibited Web site references in children’s programming, unless they met a four-step procedure. Without the guidance of industry comment on this issue, children’s programmers, such as ABC/Disney, feared they would have to re-negotiate each and every children’s programming agreement.
As a result, the Commission stayed the children’s programming Web site rule until January 1, 2006. In the meantime, the 2005 Joint Proposal was an attempt to reach a consensus regarding the Children’s Television rules and stay pending litigation. Viacom, Disney and the United Church of Christ filed in the D.C. Circuit seeking judicial review of the 2004 Order.
The Commission’s Notice is an attempt to resolve the differences regarding the Children’s Programming Rules. The Notice seeks comment on the compromise solution of the Joint Rules, and in summary form, the proposed revisions are the following:
Web Site Rule: Under the 2004 Order, any display of an Internet website during children’s programming counts toward the advertising commercial limits. The Joint Proposal would amend this rule to state; Web site addresses only “count” when displayed during non-commercial programming or content (i.e., Web sites displayed as part of commercials would not be subject to the rule).
Host-Selling Rule: The 2004 Order banned the display of Web site addresses in children’s programs or adjacent programming advertisements when the Web site host sells, or uses characters from the viewable program to sell commercial material. The Joint Proposal sought to limit the application of the prohibition to programming designed for children 12 or younger.
Promotion’s Rule: The Commission’s 2004 Order revised the definition of “commercial matter” to include “promotions of television programs or video programming services other than children’s educational and informational programming.” As a result, all promotions of programming, except promotions of children’s core programming, count toward the commercial-matter time limits. The Joint Proposal would amend this rule and exempt promotions for general children’s programming, core programming and “other age-appropriate programming.”
Preemption Rule: The 2004 Order declared that no program could satisfy children’s core programming obligations if it is preempted more than 10 percent of the time in any calendar quarter. Instead, the Joint Proposal proposes to vacate the 10 percent preemption restriction and develop a preemption case-by-case analysis.
Multicasting Rule: Multicast video programming providers or channels are subject to children’s programming obligations, including required minimum weekly amounts of core programming. Multicast channels must present children’s core programming in “rough proportion” to the amount of free programming available. The Commission required 1/2 hour, 1 hour, and 1-1/2 hour additional benchmarks for programming increments of 1 to 28, 29 to 56, and 57 to 84 hours per week of additional programming. In short, multicast channels would ramp up to the full three-hour minimum average of core programming per week.
The Commission’s order permits up to 50 percent of multicast core programming to be rebroadcast from the station’s primary channel to count toward the minimum programming obligation. The Joint Proposal seeks to clarify that obligation by adding the statement that 50 percent of the core programming “counted toward meeting the additional programming guideline cannot consist of program episodes that had already aired within the previous seven days on either the station’s main program stream or another of the station’s free digital program streams.” In other words, multicast channels would be free to meet their children’s programming obligations by rebroadcasting core programming from their primary channel – if broadcast on the primary channel no less than eight days earlier.
Regarding the lawsuits before the D.C. Circuit, all three plaintiffs’ participated in the Joint Rules. Plaintiffs stated publicly they will drop all children’s programming suits if the Commission agrees to the Joint Rules.