Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Status of Children’s Television Programming ) MB Docket No. 00-167 ) REPLY COMMENTS OF FOX TELEVISION HOLDINGS, INC. Fox Television Holdings, Inc. (“Fox”) hereby replies to the comments submitted by the Children’s Media Policy Coalition (the “Coalition”) in the above-captioned proceeding.1 In its comments, the Coalition acknowledges that broadcast licensees have increased the amount of children’s educational programming available over-the-air, in furtherance of Congress’ goals in the Children’s Television Act (“CTA”).2 The Coalition also notes that broadcasters generally are providing viewers with at least three hours per week of core children’s educational/informational programming, as called for by the Commission’s license renewal processing guideline.3 Fox’s experience as the owner of licensees of 35 full-power television stations correlates strongly with the Coalition’s overall findings. Fox consistently broadcasts an average of at least three hours per week of core children’s educational programming, and Fox chooses its core educational programs with care, taking reasonable steps not only to ensure that its selections further the educational and emotional development of the children in its communities, but also to make certain that its core programs are as attractive to their target audiences as possible. Like other broadcasters, Fox takes seriously its obligation to serve the needs of children in its 1 See In re Status of Children’s Television Programming, Comments filed by the Children’s Media Policy Coalition, MB Docket No. 00-167, dated September 4, 2007. 2 See id. at 4. 3 See id. 1 communities, and it places significant emphasis on complying with the CTA and the Commission’s children’s television rules. Despite acknowledging that broadcasters are meeting FCC requirements, the Coalition’s comments nonetheless express “concern” about several aspects of broadcasters’ children’s educational programming efforts.4 In particular, the Coalition contends that “some broadcasters continue to claim as [educational/informational] programs having little or no educational value.”5 The Coalition specifically criticizes two children’s programs broadcast by Fox stations: Winx Club and Really Wild Animals.6 Fox regrets that the Coalition has an unfavorable opinion about certain programs that comprise a portion of Fox’s commitment to educational programming, but the subjective assessments of one group of observers should not form the basis of Commission policy decisions. Indeed, when it promulgated its children’s television rules, the Commission expressly determined that it would “ordinarily rely on the good faith judgments of broadcasters” in evaluating whether a program should count as core.7 The FCC’s decision to defer to licensee judgment is grounded not only in the recognition that licensees are best-positioned to determine which programs are most responsive to the broadest cross-section of its viewers, but also in recognition that serious First Amendment concerns require the Commission to temper enforcement of the CTA and its children’s television rules. Deference to the good faith 4 See id. at 5. 5 Id. at 14. 6 See id. at 15. 7 In Re Policies and Rules Concerning Children’s Television Programming; Revision of Programming Policies for Television Broadcast Stations, MM Docket No. 93-48, 11 FCC Rcd 10660, 10662 (1996) (the “Children’s TV Order”). 2 judgments of broadcasters constitutes sound policy that the Commission should not lightly abandon. The Commission, therefore, should reject the Coalition’s invitation to thrust the government into the unwise (and constitutionally suspect) role of evaluating content. I. FOX HAS EXERCISED REASONABLE GOOD FAITH DISCRETION IN SELECTING APPROPRIATE CHILDREN’S PROGRAMMING FOR ITS COMMUNITIES The Commission promulgated rules in 1996 to strengthen its enforcement of the CTA and to ensure that broadcasters air a sufficient amount of programming “specifically designed” to meet the educational and informational needs of children.8 The Children’s TV Order noted the Commission’s desire to “provide greater clarity about broadcasters’ obligation” under the CTA.9 Consequently, the Commission set out to provide broadcasters and members of the public with a more objective way to determine whether a particular program furthers the goals of the CTA. The elements of the definition of core educational/informational programming were “designed to be as objective as possible . to avoid injecting the Commission unnecessarily into sensitive decisions regarding program content.”10 8 Id. 9 Id. at 10661. 10 Id. at 10698. The Commission’s rules set forth six criteria for evaluating whether a program is “specifically designed” for children (i.e., whether it qualifies as “core” programming): (1) it has serving the educational and informational needs of children ages 16 and under as a significant purpose; (2) it is aired between the hours of 7:00 a.m. and 10:00 p.m.; (3) it is a regularly-scheduled weekly program; (4) it is at least 30 minutes in length; (5) the educational objective and the target child audience are specified in writing in the licensee's Children's Television Programming Report; and (6) Instructions for listing the program as educational/informational, including an indication of the age group for which the program is intended, are provided by the licensee to publishers of program guides. See 47 C.F.R. § 73.671(c). Both Winx Club and Really Wild Animals, which are discussed in the Coalition’s comments, comply fully with these criteria. 3 Specifically, Section 73.671 of the rules states that a broadcaster can fulfill its responsibility by airing “any television programming that furthers the educational and informational needs of children 16 years of age and under in any respect, including the child’s intellectual/cognitive or social/emotional needs.”11 Furthermore, the Commission’s rules and the Children’s TV Order emphasize that broadcasters have broad discretion in determining how to comply with their children’s television obligations. The Commission has stressed that it will “rely on the good faith judgments of the licensee” in evaluating whether a program has as a significant purpose furthering the educational/informational needs of children.12 To that end, “Commission review of compliance with that element of the definition will be done only as a last resort.”13 Fox has contracted with recognized leaders in the area of children’s television to provide its stations with a variety of children’s educational programming each week, such as the National Geographic Society, 4Kids Entertainment, Inc. and DIC Entertainment, Inc. Each of these producers has a solid reputation as an innovator in the development of children’s educational programming. Collectively, the firms have won numerous honors, including Emmy Awards and Humanitas, Cable Ace and Environmental Media awards. Fox works with these programmers because they each have the resources, the programming libraries and performance records that ensure reliable service. Equally significant, each company closely integrates into its children’s 11 Id. 12 Children’s TV Order, 11 FCC Rcd at 10750-51 (emphasis supplied); see also 47 C.F.R. §73.671, Note 1. 13 Id. (emphasis supplied). 4 educational programming the guidance and recommendations of qualified experts in the fields of childhood development and education and pediatric public health. In fact, these distributors engage in extensive work to develop the educational mandate of each and every episode of their children’s educational/informational programming series. For example, the producers typically prepare curriculum statements for all of their programs, detailing for Fox each program’s educational/informational focus. The curriculum statements include episode-by-episode synopses for each program, and describe how the programs’ narrative development incorporates educational and informational messages specifically designed to meet the needs of a child audience. These guides help Fox’s program managers select children’s programs that will educate and inform the audience while also providing entertaining and compelling content capable of attracting an audience. The Coalition’s comments include the results of a “survey” that purports to evaluate the educational/informational content of various programs, including Winx Club and Really Wild Animals.14 In fact, the Coalition reviewed only a single episode of each of Winx Club and Really Wild Animals before offering its opinion that the entire series may not be suitable as educational programs.15 Quite clearly, the Commission cannot draw meaningful conclusions about any programming series based on a review of a single episode – a manifestly unfair sample size. Moreover, the Coalition does not disclose who reviewed and evaluated these single episodes, or whether the reviewers were qualified to make expert judgments about the programs’ educational content. 14 See Coalition Comments, at 14 and Appendix II. 15 See id. 5 Even when it comes to the substance of the individual episodes reviewed, the Coalition widely misses the mark. With respect to Really Wild Animals, the Coalition states that the reviewed episode contained “fairly graphic scenes” of animal interaction “that may be inappropriate for younger children.”16 The Coalition, however, does not and cannot demonstrate that these scenes in highly regarded nature programming from the National Geographic Society can in any