Action for Children's Television v. F. C. C.

• Decision Date: 24 August 1977
• Docket Number: No. 74-2006,74-2006
• Parties: , 2 Media L. Rep. 2120 ACTION FOR CHILDREN'S TELEVISION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Broadcasting Companies, Inc., CBS, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 458

564 F.2d 458 183 U.S.App.D.C. 437, 2 Media L. Rep. 2120 ACTION FOR CHILDREN'S TELEVISION, Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Respondents,
American Broadcasting Companies, Inc., CBS, Inc., Intervenors. No. 74-2006. United States Court of Appeals,
District of Columbia Circuit. Argued Sept. 14, 1976.
Decided July 1, 1977.
Rehearing Denied Aug. 24, 1977.

Earle K. Moore, New York City, and Henry Geller, with whom Rachel Wolkin and Ellen Shaw Agress, New York City, was on the brief, for petitioner.

C. Grey Pash, Jr., Counsel F.C.C., with whom Ashton R. Hardy, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, F.C.C. and Carl D. Lawson, Atty., Dept. of Justice, Washington, D.C., were on the brief, for respondents. Joseph A. Marino, Associate Gen. Counsel, F.C.C., Washington, D.C., at the time the record was filed also entered an appearance for respondent Federal Communications Commission.

J. Roger Wollenberg and Timothy B. Dyk, Washington, D.C., entered appearances for intervenor, CBS, Inc.

Carl R. Ramey, Washington, D.C., entered an appearance for intervenor, American Broadcasting Companies, Inc.

Before TAMM, MacKINNON and WILKEY, Circuit Judges.

Opinion for the court filed by TAMM, Circuit Judge.

TAMM, Circuit Judge:

This appeal comes to us upon a petition for review of a decision by the Federal Communications Commission (Commission or FCC) not to adopt certain rules proposed by a public-interest organization to improve children's television. We affirm the Commission because we find that it substantially complied with the applicable procedures, provided a reasoned analysis for its action, did not depart from established policies, and did not otherwise abuse its discretion. ¹

I. BACKGROUND

A. The Rulemaking Proceedings

In February, 1970, Action for Children's Television (ACT), a Massachusetts non-profit corporation, submitted several proposals to the Commission to improve children's television fare, principally by eliminating all sponsorship and commercial content from such programming and by requiring all licensees to provide a minimum amount of age-specific programming for children. Specifically, ACT urged the adoption of the following rules:

(a) There shall be no sponsorship and no commercials on children's programs;

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(b) No performer shall be permitted to use or mention products, services or stores by brand names during children's programs, nor shall such names be included in any way during children's programs;

(c) Each station shall provide daily programming for children and in no case shall this be less than 14 hours a week, as a part of its public service requirement. Provision shall be made for programming in each of the age groups specified below, and during the time periods specified:

(i) Pre-school; 7 am-6 pm daily

ages 2-5 7 am-6 pm weekends

(ii) primary; 4 pm-8 pm daily

ages 6-9 8 am-8 pm weekends

(iii) elementary; 5 pm-9 pm daily

ages 10-12 9 am-9 pm weekends

Petitioner's Brief at 9; Government's Brief at 3.

The Commission accepted ACT's submission as a petition for rulemaking ² and invited public comments on the proposals. Public Notice (Mimeo No. 44628) of Feb. 12, 1970; J.A. 85-86. The response was considerable. Not surprisingly, the general public expressed strong support, ³ at least for the essential objectives sought by ACT's petition, while the broadcast and advertising industries were mostly opposed. ⁴ Petitioner's Brief at 9; Government's Brief at 4; J.A. 117. In January, 1971, almost a year after ACT first submitted its proposals, the Commission issued a formal Notice of Inquiry and Notice of Proposed Rulemaking, Docket No. 19142, 28 F.C.C.2d 368 (1971); J.A. 116-21, pursuant to section 403 of the Communications Act of 1934, as amended (the Act), 47 U.S.C. § 403 (1970). While noting that important and perhaps substantial objections had been raised to adoption of any of the ACT proposals, the Commission observed that television programming and advertising practices for children raised "high public interest considerations", warranting further, more detailed study. ⁵ 28 F.C.C.2d at 370-71; J.A.

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118. Thus, in this second request for comments the Commission sought to obtain from all licensees and networks both general information concerning children's programming and advertising, and a representative sample of specific data from a composite week during 1969-1970. Public comments were once again invited on the ACT proposals and on a variety of related issues. ⁶ Id. at 370-72; J.A. 118-20. The Commission did not, however, propose any rules of its own. ⁷

By its own description, response to the Commission's Notice was "overwhelming". 50 F.C.C.2d 1, 2 (1974); J.A. 2. More than 100,000 comments were filed, filling 63 docket volumes, licensees and networks submitted extensive formal pleadings and programming data and, during 1972 and 1973, the Commission hosted three days of panel discussions and three days of oral argument during which representatives of the industry and members of the general public were afforded an opportunity to express their views regarding the full spectrum of children's television practices. See id. at 32-34; J.A. 49-51. ACT subsequently filed comprehensive reply comments, J.A. 125-87, in support of its essential position that "unless commercial pressures were eliminated, children would never receive adequate broadcast service." ⁸ Petitioner's Brief at 11.

In the wake of such manifestly widespread public support for ACT's proposed rules, and, perhaps, in apprehensive anticipation of possible agency adoption of those rules, ⁹ the broadcast industry undertook limited self-regulation. In 1971 the self-regulatory Code of the National Association of Broadcasters (NAB) ¹⁰ was reinterpreted to prohibit the use of certain possibly deceptive advertising techniques. A year later, the Code was amended to limit the proportion of time devoted to publicizing premium

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offers within any commercial to 50 percent, and the NAB Code authority voted to reduce, from 16 to 12 minutes per hour, the time which could be devoted to non-program material during children's programming. Subsequently, the NAB began to require that advertisements for breakfast cereals emphasize the importance of a balanced diet, that no advertisement encourage children to ingest immoderate amounts of candy and snack foods, and that children not be directly encouraged to pressure their parents into buying advertised products. See id. at 13-14.

These salutary reforms in the broadcast industry ¹¹ reached their climax when, in June, 1974, after NAB officials had met privately with the Commission Chairman, the NAB Television Code adopted the following restrictions:

(1) Beginning in January, 1975, the Code would permit 10 minutes of non-program material per hour on Saturday and Sunday children's programs ¹² and 14 minutes during the week; by January, 1976, the amount would be further reduced to 9 1/2 and 12 minutes, respectively;

(2) commercials for vitamins or drugs would be prohibited during children's programs;

(3) host or hero selling was to be restricted;

(4) program and advertising content was to be clearly separated by an "appropriate device"; and

(5) products advertised were to comport with generally accepted safety standards.

Id. at 16 (footnote added). Soon thereafter, the Association of Independent Television Stations (INTV) ¹³ followed suit and recommended that member-stations reduce the non-program content of children's programs to 9 1/2 minutes per hour by January 1, 1976.

These manifestations of industry willingness to improve the quality of children's television by self-regulation satisfied the Commission for the time being, and in October, 1974, it issued a Children's Television Report and Policy Statement, 50 F.C.C.2d 1 (1974); J.A. 1-63 (the Report ), which identified areas where improvement was necessary in children's television and which explained the Commission's decision not to adopt specific rules governing children's television practices at that time.

B. The Report and Policy Statement

The Report addressed the issues raised during the proceedings in Docket 19142 from three related perspectives: (1) the Commission's authority to regulate programming and advertising practices generally; (2) broadcasters' previous performance in the area of children's television; and (3) the improvements expected of broadcasters if they were to meet their responsibilities to the child audience. It emphasized that broadcasters do have a special obligation to serve children.

As we have long recognized, broadcasters have a duty to serve all substantial and important groups in their communities, and children obviously represent such a group. Further, because of their immaturity and their special needs, children require programming designed specifically for them. Accordingly, we expect television broadcasters, as trustees of a valuable public resource, to develop and present programs which will serve the unique needs of the child audience.

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In this regard, educational or informational programming for children is of particular importance. It seems to us that the use of television to further the educational and cultural development of America's children bears a direct relationship to the licensee's obligation under the Communications Act to operate in the "public interest".

50 F.C.C.2d at 5; J.A. 7. The Commission determined, however, that for the time being rules establishing minimum quantitative levels of age-specific programming did not appear necessary.

While we are convinced that television must provide programs for children, and that a reasonable part of this programming should be educational in nature, we do not believe that it is necessary for the Commission to prescribe by rule the number of hours per week to be carried in each category. As noted above, we are involved in a sensitive First...