In the last quarter of 2017, the Commission thoughtfully teed up several, smaller-scale Notice of Proposed Rulemakings to eliminate or modify outdated media regulations. While clearing the regulatory underbrush is incredibly important and a high priority for me, it is also time for the Commission to move forward on some of the bigger ideas proposed in the record. In particular, I posit that the Commission needs to reconsider the ineffective and burdensome requirements currently imposed on our nation’s broadcasters to air a certain amount of educational and informational children’s programming on a weekly basis, colloquially referred to as Kid Vid.
Background & FCC Actions
In 1990, the Children’s Television Act (CTA) became law, despite former President George H.W. Bush’s objections (though not his veto). This very short legislation required broadcasters to serve the educational and informational needs of children in its overall programming and imposed commercial limitations during such programming. In 1991, the Commission’s implementing rules required “broadcasters to air some amount of standard-length educational and informational programming specifically designed for children 16 years of age and under.” No minimum requirement of programming hours was imposed.
This decision was responsive to “strong legislative direction,” where Members of Congress involved in its passage clearly stated that they did not intend for the CTA to require a quantitative program mandate. Former Senator Inouye (D-HI), for example, explained, “The Committee does not intend that the FCC interpret this legislation as requiring or mandating quantification standards governing the amount or placement of children’s educational and informational [programming] that a broadcast licensee must air to pass a license renewal review pursuant to this legislation.” And, then-Congressman Markey (D-MA) affirmed “The legislation does not require the FCC to set quantitative guidelines for educational programming, but instead requires the Commission to base its [renewal] decision upon an evaluation of a station’s overall service to children.”
Had the Commission heeded these statements, there likely would not be a need for this blog. But, by 1996, some within Congress evolved their positions. In May, then-Congressman Markey, along with 219 other Members of Congress, sent a letter to the Commission calling on the FCC to adopt its proposed rule “specify[ing] a minimum amount [of children’s programming] necessary” such as “3 hours per week” in order “to guarantee renewal of a broadcast license.”
Responsively, in August of 1996, the FCC ratcheted up its Kid Vid rules, requiring broadcasters to air an average of three hours per week over a six month time period of children’s “core” programming or face challenges with getting their licenses renewed. Such programming “must have serving the educational and informational needs of children as a significant purpose,” air between 7 a.m. to 10 p.m., run at least 30 minutes, and be regularly scheduled at least weekly. To top it off, broadcasters are required to specify in writing the objective of the program and the target child audience, as well as provide programming information in the form of on-air identifications, program guides, and include in their public file quarterly reports the exact programs they aired in the previous quarter and the programming they plan to air in the next quarter.
Further changes were made in 2004 that increased the Kid Vid burdens even more. These included expanding to digital television multicast channels additional core programming “roughly proportional to the additional amount of free video programming” an individual station chose to make available and capping the amount of permitted preemption of core programming for other programs (such as breaking news or live sports). The order also expanded various commercial limitations to core programming, including bans on website displays and host selling. Not surprisingly, these changes proved so extensive that the Commission had to return to the subject in 2006 to undo parts of them and to modify others.
Since 2006, the FCC has considered a host of additional Kid Vid obligations, including mandatory weekday coverage and placing a greater emphasis on fulfilling children’s “cognitive/intellectual” needs as opposed to their “social/emotional” needs. Further action on these initiatives have stalled, but somehow are allowed to continue to linger in the record.
Great Children’s Programming Exists Elsewhere
Before the hysteria erupts, let me be clear: as a parent of a toddler, I believe children’s television programming, both entertainment and educational, can be beneficial to a child’s development, if done in moderation. True story: I think my daughter’s first words were Ma Ma, Da Da and Elmo . . . And I am not sure that they were spoken in that order. But that’s the point. Our family consumes a fair share of children-centric programming – whether its Daniel Tiger’s Neighborhood, Peppa Pig, or Thomas the Tank Engine – but none of these shows are aired on commercial broadcast stations. In fact, I can’t think of the last time, if ever, we turned to a local broadcast television station for children’s programming.
And, we are not the exception to the rule. I recently met with PBS, who described all the interactive programming it has launched, including its 24/7 PBS Kids multicast subchannel. PBS expects around 100 licensees will launch this channel, covering 90 percent of U.S. TV households. While Kid Vid rules (minus the reporting requirements) apply to noncommercial educational stations like PBS, such programming is tied to the mission of these stations and PBS does not need a mandate to continue providing such content. In fact, children’s programming on PBS is only expected to increase and hopefully be enhanced with the proliferation of the new ATSC 3.0 broadcast standard the Commission recently approved. For example, PBS is exploring ways of enforcing positive program messages by having children play targeted games after tuning in to a particular television show. Not only is this more advanced than what is being done on commercial broadcast television stations, but it also reaches the vast majority of Americans, eliminating the argument that over-the-air-only households miss out.
For the lion’s share of Americans, cable networks also provide a host of children’s programming options for a variety of age groups, including Disney Junior, Nick Jr., Nickelodeon, and Universal Kids. These stations air linear programming all day and often have strong on-demand programming available as well. As Nexstar Broadcasting recently pointed out, “Children increasingly view media content ‘on demand’—whether the content is pre-recorded on a digital video recorder, available through an MVPD VOD service, or on mobile phones, tablets, and other portable devices.”
Additionally, there is a host of children’s programs available from popular over-the-top providers, such as Netflix, Amazon, and Hulu, or subscription services, such as HBO, many of which have specifically targeted children’s programming as a way to gain market share and consumer acceptance. In fact, in August HBO reached a five-year carriage deal with Sesame Street to not only carry more new content each season, but also a Muppets spinoff. Moreover, studies show that children ages 8 to 18 already spend a significant amount of time consuming video content on YouTube and other online platforms. And, it appears that Facebook plans to offer video content targeted to teenagers in the coming months.
The appropriate question, therefore, is not whether children’s programming is available. The question that must be asked is where is the market failure to warrant the continuation of the FCC’s Kid Vid mandates? Based on the above, it is hard to conclude anything other than the market for children’s programming is booming.
Negative Impact of Current Rules
With today’s dynamic media marketplace there are very little, if any, additional benefits provided by the Kid Vid rules. Not only are they unnecessary, but after over two decades of experience with the 1996 enhanced regulations, there is scant evidence to indicate that children’s programming on broadcast stations has improved. There is also no scientific proof that the Kid Vid requirements specifically have led to developmental benefits for children. Meanwhile, the current mandates have real world consequences. Here are a few examples of the costs Kid Vid imposes:
- Preempts More Desired or Valuable Local Programming — Some will likely try to argue that Kid Vid concerns are overblown, as 3 hours per week out of the 105 core programming hours available is not burdensome, or such an obligation is a small price to pay for the right to hold a broadcast license, i.e., a public interest requirement. But such thinking ignores two important realities. First, there are a finite number of hours of audience viewing, forcing broadcasters to face the tough choice of airing programming that audiences want or following the stringent requirements of Kid Vid that the FCC has mandated. In fact, once a local broadcast affiliate subtracts network requirements and newscasts, there is not much free time for other programming, meaning Kid Vid programming generally gets relegated to Saturday mornings. But, today, Saturdays—particularly on the West coast—are also increasingly crammed with a vast amount of popular live programming. This problem is especially true around certain times of the year. According to the National Association of Broadcasters (NAB), popular sports programming and coveted national and local news programming squeeze schedules so tightly that some stations have preempted local newscasts to satisfy the rigid requirements of the FCC’s Kid Vid rules. Second, displacing programming that viewers seek and want for questionable Kid Vid programming depresses the value of broadcast stations and threatens their financial resources to create and air costly programming, like news and community specials, or pay the bills for other programming, like network or syndication programs. One can only wonder how this effects other public interest obligations, such as localism and competition.
- Kills Shorter and Infrequent Programming — The Kid Vid requirement that children’s core programming must run not less than 30 minutes has had a perverse effect. In essence, it has killed any educational or informational programming of a shorter timeframe that could benefit children viewers. For instance, the 1970s ever-popular and educational short animated skits under the umbrella of Schoolhouse Rocks, including “I’m Just a Bill,” would not qualify for purposes of Kid Vid, acting as a deterrent for broadcasters to invest in such programming. At the same time, everyone knows that peak attention span is less than 30 minutes. That’s why the famous Ted talks are allowed to be a maximum of 18 minutes. Similarly, it’s why you see short segments in most children’s programming on non-broadcast channels. Beyond the length of the programming, the Commission’s rules also hamper non-regularly scheduled programming. For example, in the 1996 order the Commission rejected the argument made by broadcasters that even though highly popular specials, such as the “ABC Afterschool Specials,” were not regularly scheduled, such programming was heavily promoted and advanced the Commission’s goal of providing educational and informational children’s programming. Instead, the Commission concluded that specials would not be credited as core, halting the development of similar popular programming.
- Imposes Costly & Burdensome Paperwork — Beyond just the sheer logistical challenges associated with our rules, the reporting requirements impose heavy burdens that force broadcasters to devote substantial resources to paperwork, rather than local programming. For example, NAB recently quantified Kid Vid paperwork burdens. One group that owns 15 television stations filed with the FCC reports totaling 473 PDF pages (averaging 31.5 pages per station) in the first quarter of 2017. Based on these numbers, NAB predicted that by the end of 2017 the group would file approximately 1,892 pages that merely explained what children’s programming they aired. Not only are these requirements burdensome, they are unnecessary. Why should a broadcaster have to list out the exact programs they aired in the previous quarter? Isn’t all that information publicly available for anyone with rabbit ears? Not to mention, a typical consumer is one remote button away from a channel programming guide. Surely most parents would prefer to plan their child’s viewing experience this way rather than refer to a broadcast station’s public file. Thus, it is hard to see how these reporting burdens have accomplished anything more than just taking up both the broadcasters’ and the Commission’s resources with nothing to show for the trouble.
- Interferes with Development of Internet Content — At the time of the CTA and the subsequent Commission actions since then, the Internet did not play a significant role in offering children educational and informational materials. Today, the world has changed completely and the disruptive nature of the Internet has spread to children’s content as well. Spending countless time on Kid Vid rule compliance and the Kid Vid commercial limitations on websites and host selling prevents some broadcasters from dedicating additional resources to these sites and keeps others from investing at all. Today, children are just as likely to view content on an iPad as a television set and apps designed for children can be just as informational and educational as programming. Perhaps, the Commission should substitute any Kid Vid requirement for broadcasters that create or join children-centric Internet sites. We also should consider if there are ways we can modify our website and host selling rules to reflect the important role the Internet can play in educating children and ensure that parents have the opportunity to learn where and how they can access such sites or apps.
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For the multitude of reasons provided, it is high time the Commission consider whether the Kid Vid rules are still necessary. At the very least, there are substantial portions of these rules that can be rolled back or reconsidered. I hope as the Commission continues down its media modernization path, this rule will be part of the equation.
 Policies and Rules Concerning Children’s Television Programming, 6 FCC Rcd 2111 (1991).
 Id. at ¶ 24.
 Congressional Record (July 19, 1990) 136, S10122.
 Congressional Record (October 1, 1990) 136, H8537.
 Letter from Congressman Edward Markey and 219 other members of Congress (May 29, 1996).
 Policies and Rules Concerning Children’s Television Programming, 11 FCC Rcd 10660 (1996). If a station fails to meet this three-hour requirement it can still be considered in compliance with the FCC’s Kid Vid rules, provided it can show that it aired “a package of programming that demonstrates a level of commitment to education and informing children that is at least equivalent to airing three hours per week of core programming.” In order to make this showing, broadcasters must go before the full Commission for a hearing. This alternative approach, of course, is so burdensome that it is rarely invoked.
 Specifically, broadcasters are required to provide an additional half hour per week of core programming for every 28 hours of additional free programming, up to 3 additional hours for each 24-hour multicast stream. Children’s Television Obligations of Digital Television Broadcasters Report and Order and Further Notice of Proposed Rulemaking, 19 FCC Rcd 22943 (2004).
 See PricewaterhouseCoopers LLP, Consumer Intelligence Series: Media-Savvy Kids, Teens Want Engaging Stories on Multiple Devices (2015), http://www.pwc.com/us/en/industry/entertainmentmedia/publications/asset….
 Facebook Is Going Hollywood, Seeking Scripted TV Programming, Wall Street Journal (June 25, 2017).
 NAB also cautioned that these numbers were likely conservative, as the third quarter filings typically run an additional five to ten pages.