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The FCC's Affirmative Speech Obligations Promoting Child Welfare, 22 Regent U University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2010 The CF C's Affirmative Speech Obligations Promoting Child Welfare Lili Levi University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Communications Law Commons Recommended Citation Lili Levi, The FCC's Affirmative Speech Obligations Promoting Child Welfare, 22 Regent U. L. Rev. 323 (2010). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. THE FCC'S AFFIRMATIVE SPEECH OBLIGATIONS PROMOTING CHILD WELFAREt Lili Levi* Child welfare has been the most commonly articulated rationale justifying regulation and legislation regarding electronic media in the past twenty years. The most visible and controversial initiatives that the Federal Communications Commission ("FCC") has taken to promote that goal-such as the prohibition of indecency on broadcast television during the daytime'-have entailed suppressing speech to protect children from harm. But prohibiting speech is not the only tack the FCC has taken to promote the welfare of children. It has also adopted regulations designed to use television to educate and improve the young. Specifically, the FCC's children's educational television rules-adopted under the authority of the Children's Television Act of 1990 ("CTA")2 -have sought to induce broadcasters to air a minimum of three hours per week of core educational programming for children. 3 The remainder of this Essay focuses on that affirmative speech obligation. t This speech is adapted for publication and was originally presented at a panel discussion as part of the Regent University Law Review and The Federalist Society for Law & Public Policy Studies Media and Law Symposium at Regent University School of Law, October 9-10, 2009. * Professor of Law, University of Miami School of Law. FCC Broadcast Radio Services, 47 C.F.R. § 73.3999 (2009); see also 18 U.S.C. § 1464 (2006) (making it a federal criminal offense to broadcast obscene, indecent, and profane material). The FCC has defined indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs."' Indus. Guidance on the Comm'n's Case Law Interpreting 18 U.S.C. § 1464 & Enforcement Policies Regarding Broad. Indecency, 16 F.C.C.R. 7999, 8000 (2001) (quoting Enforcement of Prohibitions Against Broad. Indecency in 18 U.S.C. § 1464 , 8 F.C.C.R. 704, 705 n.10 (1993)). Since 2003, the FCC has expanded the scope and enforcement of its indecency rules. See Lili Levi, The FCC's Regulation of Indecency, FIRST REP., Apr. 2008, at 2-3, 14, http://www.firstamendmentcenter.org/PDF/FirstReport.Indecency.Levi.final.pdf; see also FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1819 (2009) (upholding, against Administrative Procedure Act challenge, the FCC's expansion of its indecency prohibitions to the broadcast of fleeting expletives); FCC v. Pacifica Found., 438 U.S. 726, 758-61 (1978) (upholding, against First Amendment challenge, the agency's right to channel indecency). 2 Children's Television Act of 1990, Pub. L. No. 101-437, 104 Stat. 996-1000 (codified as amended in 47 U.S.C. §§ 303(a), 303(b), 394, 397 (2006)). 3 47 C.F.R. § 73.671(d) (2009); see also Policies & Rules Concerning Children's Television Programming, 11 F.C.C.R. 10,660, 10,718 (1996) (authorizing the Mass Media Bureau "to approve the Children's Television Act portions of a broadcaster's renewal application where the broadcaster has aired three hours per week .. .of educational and informational programming"). REGENT UNIVERSITY LAW REVIEW [Vol. 22:323 Children in America watch an average of over three hours of television daily.4 While many complain about children's entertainment programming on commercial television, social scientists have demonstrated the medium's ability to be an effective teacher. 5 In contrast, public discourse highlights failures-in money, competence, outcomes-in public education systems all around the country.6 It is understandable, then, that children's advocates, the FCC, and Congress have all expressed interest in affirmatively enlisting commercial broadcasters to enhance public education. This issue is now very much in the public eye. Over the summer, the Senate Commerce Committee held a hearing entitled Rethinking the Children's Television Act for a Digital Media Age.7 Julius Genachowski, the then-recently appointed FCC Chairman, responded to the Senate inquiry by announcing the commencement of a new FCC investigation into the children's educational television rules and their application in the digital media age. 8 Shortly thereafter, the FCC released a Notice of Inquiry entitled Empowering Parents and Protecting Children in an Evolving Media Landscape; therein, it invited comment, inter alia, on "what steps the government or industry could take to promote the development and availability [of children's educational content]," and "whether the [FCC's] rules implementing the CTA have been effective in 4 Empowering Parents & Protecting Children in an Evolving Media Landscape, 24 F.C.C.R. 13,171, 13,175 (2009) (citing DONALD F. ROBERTS ET AL., KAISER FAMILY FOUND., GENERATION M: MEDIA IN THE LIVES OF 8-18 YEAR-OLDS 23-24 (2005)). 5 E.g., id. at 13,176 (citing Heather L. Kirkorian et al., Media and Young Children's Learning, FUTURE OF CHILDREN, Spring 2008, at 39, 47; Barbara J. Wilson, Media and Children's Aggression, Fear, and Altruism, FUTURE OF CHILDREN, Spring 2008, at 87, 107-08). 6 See, e.g., Sam Dillon, 16 Finalists are Named for School Grant Program, N.Y. TIMES, Mar. 5, 2010, at A15 (describing state contest for federal education funds under Race To The Top initiative); Bob Herbert, Op-Ed., Stacking the Deck Against Kids, N.Y. TIMES, Nov. 28, 2009, at A19 (noting that the current recession is curtailing American children's educational opportunities). See generally Fixing D.C.'s Schools: A Washington Post Investigation, WASH. POST ONLINE, http://www.washingtonpost.conmwp-srv/metro/ interactives/dcschools/#fullseries (detailing the plight of Washington, D.C. schools) (last visited Apr. 19, 2010). 7 Julius Genachowski, Chairman, Fed. Commc'ns Comm'n, Statement Before the United States Senate Committee on Commerce, Science, & Transportation: Hearing on "Rethinking the Children's Television Act for a Digital Media Age" 3-4 (July 22, 2009) [hereinafter Genachowski Statement], available at http://hraunfoss.fcc.gov/edocs-public/ attachmatchDOC-292170A1.pdf. For the C-SPAN video of the hearing, see C-SPAN Video Library, Senate Commerce Hearing on Children's Television, http://www.c-spanvideo.org/ program287915-1 (last visited Apr. 19, 2010). 8 Genachowski Statement, supra note 7, at 2; see also John Eggerton, FCC to Revisit Kids TV Rules, BROADCASTING & CABLE, July 22, 2009, http://www.broadcasting cable.com/article/316123-FCCToRevisit-KidsTVRules.php?nid=2228&source=title& rid=6104711 (reporting the FCC inquiry into children's television rules in the current media age). 20101 AFFIRMATIVE SPEECH OBLIGATIONS promoting the availability of educational content for children on broadcast television." This renewed focus on children's television provides an opportunity to think about whether the FCC's rules are effective or should be fundamentally revised. In my view, the history of children's television regulation is one of limited success. Where you come out on this depends on whether you emphasize the "limited" or the "success," and that is why this issue will likely be controversial. Although the FCC has encouraged broadcasters to air quality children's educational television for almost fifty years, it rejected mandatory requirements during much of that period. 10 Despite FCC exhortations, broadcasters of the 1970s and later decades did not air much educational programming for children.11 Even after Congress passed the CTA in 1990, requiring programming service to the child audience, at least some broadcasters continued to claim that shows like The Jetsons, GI Joe, and Teenage Mutant Ninja Turtles satisfied their obligations to program appropriately for the child audience.12 If you have children and have seen these programs, you're probably amused at the broadcasters' temerity. 13 Ultimately, in 1996, the FCC decided to incentivize broadcasters to air more educational programming for children. So the agency adopted what it called a "processing guideline" under which a broadcast station airing a minimum of three hours per week of core children's educational 9 Empowering Parents,24 F.C.C.R. at 13,179. 10 See, e.g., Comm'n en banc Programming Inquiry, 44 F.C.C. 2303, 2303, 2314 (1960) (recognizing children as a group whose interests must be met by broadcasters seeking to fulfill their public interest obligations). For the FCC's account of the history of children's television regulation, see, for example, Children's Television Obligations of Digital Television Broadcasters, 19 F.C.C.R. 22,943, 22,945-49 (2004). For scholarly histories of the FCC's approach to children's television, see, for example, NEWTON N. MINOW & CRAIG L. LAMAY, ABANDONED IN THE WASTELAND: CHILDREN, TELEVISION, AND THE FIRST AMENDMENT 9, 21 (1995); Angela J. Campbell, Lessons From Oz: Quantitative Guidelines for Children's Educational Television, 20 HASTINGS COMM. & ENT. L.J. 119, 137 (1997); James J. Popham, Passion, Politics and the Public Interest: The Perilous Path to a Quantitative Standard in the Regulation of Children's Television Programming, 5 COMMLAW CONSPECTUS 1, 2-8 (1997).
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