Can air third of their E/I programming on multicast channel

A politically divided FCC voted Wednesday (July 10) to give broadcasters more flexibility in providing educational/informational (E/I) programming for children, changes Democrats said dis-serve kids.

It is the first major update of the rules since they were implemented over two decades ago.

The Report & Order (R&O) preserves the three-hour-per-week mandate for E/I programming, but allows a third of that to be aired on a multicast channel, rather than on the primary channel, as the rules had required.

The R&O, among other things, also gives broadcasters an extra hour (from 7 a.m.-10 p.m. to 6 a.m.-10 p.m.) in which E/I programming satisfies the three-hours-per-week requirement and gives broadcasters the ability to count a "limited" amount of non-regularly scheduled weekly programming toward the requirement, though still requiring the "majority" of that programming to be regularly scheduled weekly, and allow a "limited" amount of short-form programming--PSAs, interstitials--but most still required to be at least a half hour.

Broadcasters would have preferred more flexibility on both fronts, but FCC commissioner Michael O'Rielly had signaled that the changes would be "modest reforms." One change they pushed for is that the FCC will now allow a regularly scheduled E/I program to be preempted by a non-regularly scheduled locally produced news program without requiring it to reschedule the episode.

Noncommercial stations will also no longer have to use the E/I symbol on their children's programming.

The order said the changes will provide "additional scheduling flexibility, allow broadcasters to offer more diverse and innovative educational programming, and relieve unnecessary burdens on broadcasters, while also ensuring that high quality educational programming remains available to all children."

An accompanying Further Notice of Proposed Rulemaking seeks comment on a regime that would allow broadcasters to satisfy their kids programming obligations by, in part, producing or funding programs that aired on another station in their markets, kind of like the regulatory equivalent of the Civil War option of paying someone else to fight.

FCC chair Ajit Pai said a lot has changed since the Children's Television Act, including an explosion in choice for educational programming for kids, who mostly watch on nonbroadcast platforms.

He called the changes modest and balanced and signaled they were needed given that the rules had been "trapped in amber" while the marketplace had moved on. 

Commissioner Michael O'Rielly, who championed the kidvid rule revamp, pointed to a Multichannel News graphic on available video services to make the point that the marketplace for video had changed and the FCC's rules needed to follow suit.

He said that his goals had been protecting viewers, giving broadcasters more flexibility, responding to shifting video consumption, and simplicity, saying the item succeeded in three of the four, with simplicity probably losing out, though saying that was a reasonable tradeoff.

He said that those objecting to the "modest reforms" fail to recognize that because some content is being shifted to multicast doesn't mean broadcasters won't promote it. He said the suggestion that multicast channels is a graveyard of unwatched programming is just wrong.

He said that permitting flexibility doesn't mean they get to walk away from requirements on the rest of their kidvid mandate, and that giving broadcasters more flexibility in the length of programming is not a novel idea, just more specificity as what qualifies.

He defended expanding the preemption for news to other local programming that is not regularly scheduled, like local sports, parades and specials.

As to the NPRM, he says he would have been happy to move to an order on letting broadcaster sponsorship of, say, programming on noncommercial TV, or non-broadcast content, count toward their kidvid obligations, but suggested it should not be controversial to raise the issue and ask the questions.

"[T]oday, we provide broadcasters with the flexibility to meet the needs of their communities while also ensuring that they live up to their obligations under the Children’s Television act," said Republican commissioner Brendan Carr. "In fact, for anyone that relies solely on over-the-air television, including low-income households that do not have cable or Internet service today, stations will still be required to air an average of three hours per week of children’s programming after today’s decision. In other words, 100 percent of households that receive free children’s television programming over the air today, as a result of our rules, will still receive that programming tomorrow."

Democrat Geoffrey Starks saw it quite differently, suggesting the FCC's kidvid mandates were already modest. "Today, we are moving from a system that has inspired and educated countless children to a landscape where quality children’s programming may be hard for all children and parents to come by," said Starks. "And we are doing so with little understanding of the impact our actions will have on viewers, or the broader children’s programming marketplace. In a sense, we are inexplicably snatching defeat from the jaws of victory and leaving kids, especially the most vulnerable, worse off than how we found them."

Ditto the commission's senior Democrat. Saying they should take it from the only mother on the panel, commissioner Jessica Rosenworcel said that anything that helps you get through the day healthy and safe should be supported, like the FCC's KidVid rules.

She was not buying the argument that a changing video marketplace required loosening the rules.

"I know a lot has changed since this law was passed. Gone are the days of Saturday mornings when kids gathered around the glow of the television clad in pajamas, waiting for their favorite program to come on air," she said. "Today, many of us can call up a range of kid-focused content when we want it and where we want it. But shame on us for deciding that this has rendered children’s television policies obsolete. Shame on us for using this as an excuse to cut children’s television and make it harder for parents to find safe content on the screen."

Rosenworcel said data caps can limit online viewing and data collection from kids make online video a suspect substitute. She said three hours a week on the primary channel is hardly a burden. She said the "modest" change was instead "slashing" the rules. She said she was disappointed as a policymaker and parent. 

The National Association of Broadcasters praised the move. 

“NAB thanks the FCC for modernizing its kidvid rules to allow broadcasters to better serve children and communities," said NAB EVP Dennis Wharton. "Chairman Pai and commissioner O’Rielly deserve enormous credit for championing common-sense regulations designed for the way children and families consume video in the 21st century.”