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DOCUMENT RESUME

ED 342 043 CS 507 737

AUTHOR Markin, KarenTITLE Congress, the FCC and Children's Television

Regulation: A Shift in the Balance of Power.

PUB DATE Aug 91NOTE 37p.; Paper presented at the Anaual Meeting of the

Association for Education in Journalism and MassCommunication (Boston, MA, August 7-10, 1991).

PUB TYPE Speeches/Conference Papers (150) -- Viewpoints(Opinion/Position Papers, Essays, etc.) (120)

EDRS PRICE MF01/PCO2 Plus Postage.DESCRIPTORS Case Studies; *Childrens Television; *Federal

Government; Federal Regulation; *Government Role;Legislation; *Legi.slators; Mass Media Role; MediaResearch

IDENTIFIERS *Federal Communications Commission;*Intergovernmental Relations; Reagan (Ronald)

ABSTRACTThe Federal Communications Commission (FCC) of the

late 1980s appeared to pursue its own agenda of broadcastderegulation, notwithstanding congressional pressures. The apparentpower shift is evident in a case study of the interactions betweenCongress and the FCC on the subject of children's television. In theearly 1970s, the FCC tended to accede to Congress and otherregulatory players with regard to children's television. In thesecond half of the decade, too, Congress used oversight,subcommittee, and appropriations hearings to let the FCC know whereit stood on broadcast policy and the FCC geaerally compli,ed withCongress' regulatory goals. In the deregulatory mood of the early1980s: the children's television issue was assigned a low priority atthe FCC. In Congress, Democrats fought for greater regulation, andcontinued to do so through the decade. Lawmakers criticized the FCCfor failing to pursue the matter. Efforts to increase televisionregulation either died in congressional committee or were vetoed byPresident Reagan. The FCC's alliance with the President allowed thecommission to ignore pro-regulatory moves from Congress, the courts,and citizens' groups alike. Si3ce President Busn took urfice,Congress has approved limits on the commercialization of children'stelevision and the FCC has supported such moves. (Sixty-nine endnotesare included.) (SG)

*********************************t*************************************Reproductions supplied by EMS are the best that can be made

from the original document.***********************************************************************

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CONGRESS, THE FCC AND CHILDREN'S TELEVISION REGULATION:

SHIFT IN THE BALANCE OF POWER

BY KAREN MARKIN

School of Journalism and Mass CommunicationUniversity of North Carolina

Chapel Hill, NC

A student paper prepared for presentation to the Law Divisionat the annual conference of the Association for Education inJournalism and Mass Communication, August 7-10, 1991, Boston.

"PERMISSION TO REPRODUCE THISMATERIAL HAS BEEN GRANTED BY

TO THE EDUCATIONAL RESOURCESINFORMATION CENTER (ERIC)."

U.S. DEPARTMENT OF EDUCATIONOftiC r of Fducational Research and Improvement

EDUCATIONAL RE SOURCES INFORMATIONCE NTER (ERIC)

document has been reproduced asreceived from the person or organizationoriginating II

f 1 Minor changes have been made to improvereproduction quality

Poims of sire or opmions stated in this documen1 do nnl neCesSafIly represent officialOF RI position or policy

LIM rov Mall III F

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1

Introduction

The literature about broadcast regulation has portrayed

Congress as one of the most powerful -- perhaps the most

powerful -- of the players in the regulatory process. In

particular, the federal legislature has been said to wield

considerable power over the Federal Communications Commission.

The chairs of the congressional committees that dea with

broadcasting have had great influence over the agency, where1

their word has been considered law.

The reculatory process has been described as negotiation

among at least six players: Congress, the FCC, citizen groups,2

the White House, the broadcast industry and the courts.

However, only Congress and the FCC are empowered to establish

regulations formally: the FCC through agency rulemaking and

policy-setting, and Congress through statutes. The other

players operate by reacting to established policy or pressing

for the establishment of new policy.

The relationship between the FCC and Congress invited study

because regulatory developments suggested a power shift. Instead

of bowing to congressional pressure, the FCC of the late 1980s

appeared to have pursued its own agenda of deregulation,

ignoring congressional attempts to reinstate by statute what the

FCC had slashed from agency policy. For example, Congress tried

in 1987 to codify the Fairness Doctrine, which the FCC had

repealed. The Fairness Doctrine required broadcast stations to

present programming about controversial issues of public

importance and to provide opportunities for presentation of

contrasting views on such issues. President Ronald Reagan vetoed

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2

the legislation, and the Fairness Doctrine remains abolished.

Another possible example of this power shift in the late 1980s

was the FCC's refusal to reinstate standards for children's

television programming despite Congress' repeated but

unsuccessful attempts to force such regulation through statutes.

The state of the balance of power in the broadcast

regulatory dynamic is important to those who want to influence

the process. In addition, regulatory developments of the late

1980s highlighted the weakness of the reputedly powerful

Congress as a player in the regulatory process -- a situation

previously unexplored by the literature.

Methodology

This article will examine the apparent power shift through

a case study of the interactions between Congress and the FCC on

the subject of children's television. Children's television was

selected for scrutiny because the topic has attracted the

attention of regulators for more than two decales and continues

to do so. Thus ample materials exist to trace the interaction of

the FCC and Congress over time on this issue. Congressional and

FCC activity in the years 1975 through 1979 will be contrasted

with activity in 1985 through 1989. This will allow scrutiny of

recent regulatory activity regarding children's television, as

well as comparison of this activity with events occurring before

Reagan brought his brand of deregulation to the federal scene.

Transcripts of congressional hearings and bills will be

reviewed to determine what Congress' agenda for children's

programming was during each time period. FCC documents will be

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examined to determine the extent to which the agency complied

with Congress' desires. Court cases and some secondary sources

also will be examined to determ4ne what the other players in the

regulatory process were doing.

Interaction between the FCC and Congress raises the

following questions, which will be the focus of this study:

1. What is the FCC's regulatory agenda?

2. What is Congress' regulatory agenda?

3. Who has prevailed? Why?

4. What implications does this result have for broadcast

regulation?

The study will not be a normative one; many other commentators

have discussed whether children's programming ought to be3

regulated. Instead, this study will document the shift that

has occurred in Congress' relationship with the FCC, attempt to

formulate some explanations and assess the impact of the change.

Case study methodology does, of course, have limitations.

The findings of such a study cannot be generalized to other

issues. However, the methodology does provide an opportunity for

scrutiny of the regulatory process.

Review of the Literature

Although much of the literature about broadcast regulation

mentions Congress' participation in the process, little work has

focused specifically on Congress' unique role in regulation.

Studies that have emphasized Congress' role, however, have

depicted the federal legislature as one of the most powerful

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4

players in the broadcast regulatory process. A review of some of

the most pertinent articles follows.

Timothy B. Dyk and Ralph E. Goldberg argued forcefully in

1987 that Congress has, at times, overstepped the bounds of its

investigatory authority. They claimed Congress has investigated

when it had no intention of enacting legislation and where there

was no possibility of enacting constitutional legislation. They

said Congress has used investigations into programming in

attempts to intimidate broadcasters into abandoning protected

practices such as exit polling. Congress also has used "lifted

eyebrow" regulation -- that is, pressure for "voluntary"

compliance -- on the FCC, which in turn has pressured

broadcasters to meet congressional demands. It is widely

believed that congressional investigations have a significant4

impact on broadcasters, Dyk and Goldberg stated.

In a similar vein, Harry M. Shooshan III and Erwin G.

Krasnow argued in 1987 that the once-independent FCC had been

reduced in that decade to a "level of abject dependency" in its

relationship with Congress. They notnd that Congress can control

not only how much money the FCC gets but how it is used as well.

They also stated that the FCC was more vulnerable than most

independent regulatory agtmcies to pressures from individual

members of Congress because it lacked clear legislative guidance

in the Communications Act regarding the definition of "public5

interest." In an earlier piece, Krasnow and Shooshan described

Congress' power over the commission as "pervasive and6

multifaceted."

6

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Literatu-e regarding children's television policy is

abundant and can be divided into two broad categories: articlei:

that argue for or against regulation of children's television,

and articles that present a non-normative examination of

regulatory policy aimed at children's television. Those in the

latter category are relevant to this study and will be reviewed

here.

David E. Tucker and Jeffrey Saffelle used the

Krasnow-Longley-Terry model to examine the actions of the sixt

regulatory players with regard to children's television from

1970 through 1981. The paper chronicled efforts by the citizen

group Action for Children's Television (ACT) to get guidelines

for children's programming established and its interactions with7

the other players. A subsequent article examined the FCC's 1983

ruling that there was no need for a national quantitative

children's programming policy. The article noted ACT's

persistence in pushing for regulation, continuing interest by

some members of Congress iL regulation and the FCC's quest for8

an unregulated marketplace. The evolution of children's

television regulatory policy was discussed in a 1987 article by

Dale Kunkel and Bruce Watkins. The article examined the growth

of research on children and television, congresrional interest

in the topic, the efforts of ACT, the FCC's deregulatory stance9

and possible future developments.

None of the articles, however, examined the issue of

children's television specifically from the perspective of the

balance of power between Congress and the FCC -- the two players

empowered to pass formal regulations. They did not focus on what

7

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happens to the regulatory process when one of these players

decides not to regulate. Kunkel and Watkins noted in their 1987

article about children's television regulatory policy that the

complex structure of Congress made broadcast regulation by the

federal legislature difficult and therefore unlikely. They did

not, of course, deal with subsequent developments that support

their claim. This study picks up where Kunkel and Watkins left

off in that article, by showing that as Congress and the FCC

drifted apart in their regulatory goals, Congress used more

blunt tactics in its efforts to bring the FCC into compliance

but still failed. It will also look at why Congress failed in

its attempt to set FCC policy in the late 1980s. It will be

shown that the failure stemmed in part from the difficulty of

successfully guiding regulatory bills over legislative hurdles.

Regulatory

Tile FCC and Congress are not, of course, the sole

determiners of broadcast regulatory policy. The

Krasnow-Longley-Terry model of broadcast regulation identifies

six determiners of policy. In addition to Congress and the FCC,

they are the broadcast industry, citizen groups, the courts and10

the White House. However, because the emphasis in this paper

will be on Congress and the FCC, a detailed discussion of their

roles is warranted.

The FCC's Powers

The FCC was formed "for the purpose of regulating

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interstate and foreign commerce in communication so as to make

available ... a rapid, efficient, Nation-wide, and world-wide

wire and radio communication service." The agency controls the12

licensing of broadcast stations and is empowered to regulate13

"as public convenience, interest or necessity requires," which

means the commission has the ability to make and enforce rules.

The regulatory approach is commonly called a "trusteeship model"

in that those who recei,-e broadcast licenses are seen as

trustees of publicly owned airwaves, which are limited in14

quantity.

Commission policy is made in several ways: through formal

rulemaking, through case decisions, on an ad hoc basis without

formal procedure and through the "raised eyebrow" approach in

which it informally expresses disapproval of a certain15

practice. It will be seen that the FCC of the late 1980s

stated its deregulatory policy for children's television

explicitly. Policy is shaped by pressures from other regulatory

players.

Programming policy is seldom enforced through overt

measures such as fines or license revocation, although the

commission is authorized to use these tactics. More often, the

FCC will issue policy statements, and broadcasters will take

heed. However, citizen groups can bring enough pressure to16

change station policy by challenging a renewal.

The commission is required to submit to Congress an annual

report that outlines its goals, evaluations of the preceding

year's work and recommendations for legislative action to help17

the FCC meet its objectives. Members of Congress have

9

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8

sometimes used appropriations hearings as a forum for

communicating their policy preferences to the FCC, but there is

some evidence that Congress° control of the purse strings may be

less influential now than in the past. For example, Mark S.

Fowler, Reagan's appointee for chairman, exerted power by

questioning 'he commission's existence and reducing its staff18

size.

Congress° Powers

Congress can exert control over the FCC in several ways: by

statute, by appropriation, by investigation, through

commissioners' appointment hearings, through scrutiny by

standing committees, through pressure by individual lawmakers

and their 3taff merubers and through legislative inaction.

Traditionally, however, nonstatutory controls have been the most19

commonly employed. Commentators who explored the extent to

which Congress used nonstatutory pressure stated: "[F]ew doubt

that congressional investigations have a significant impact on20

broadcasters."

Congress and the FCC: The 1970s

Background: 1970-1974

Events in the early 1970s illustrated Congress' effective

use of nonstatutory methods to influence the FCC. Lawmakers

became concerned when, in 1974, acts of violence portrayed on

television reached an all-time high and the FCC received 25,000

letters about the subject -- up 2,000 from 1972. They directed

the FCC to report at year's end on specific actions taken to

10

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remedy the perceived problem of obscenity and violence on

television. FCC Chairman Richard E. Wiley subsequently met with

broadcasters, and the result was the so-called family viewing

policy. This policy, adopted by the National Association of

Broadcasters, stipulated that the first hour of network

prime-time programming had to be suitable for viewing by all21

members of the family.

This relationship between Congress and the FCC was

characteristic of the first half of the 1970s. The regulatory

climate was one in which the FCC reacted to other players. For

example, responding to pressures from Congress and Action for

Children's Television, a citizen group, the FCC issued its22

Children's Television Re ort and Polio Statement of 1974. The

policy statement, which asserted that broadcasters had a duty to

further the educational and cultural development of children,

asked licensees to fulfill this duty in several ways, such as

reducing advertising during children's programs and separating

commercials from programs. The statement intimated that

compliance would be considered At license renewal time. Although

the policy statement did not impose quantitative requirements on

programming and commercials, it nonetheless indicatsd the FCC's

willingness to regulate the content of children's television

programming by promulgating guidelines.

Years Under Scrutiny: 1975-1979

Congress and the FCC

Transcripts of congressional hearings that involved the FCC

ii

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in the years 1975 to 1979 revealed that this time period was no

different; Congress used oversight hearings, subcommittee

hearings and appropriations hearings to let the FCC know where

it stood on broadcast policy. These hearings generally did not

involve discussion of a specific legislative proposal. The

picture of the relationship between Congress and the FCC that

emerged from these hearings is one of a commission that

attempted to respond to congressional goals, albeit not always

in a fashion that pleased lawmakers. But the two seemed to be

headed in the same direction, with the FCC sometimes proceeding

in a slower or more roundabout way than some members of Congress

would have preferred.

The Senate's Committee on Commerce met in April 1975 for

its "customary annual review of the past actions and future23

objectives of the Federal Communications Commission." Sen.

John 0. Pastore, the presiding officer at the hearing, noted the

committee's interest in FCC actions in the area of children's

television. Wiley, then chairman of the FCC, subsequently

reported to the committee that programming for children had been

a major concern for the commission, a concern that culminated in24

the Eeptort an4_221/0 Statement of 1974. The report

established two main guidelines for programming and advertising

designed for youthful audiences; Stations should provide a

reasonable amount of programming for children, and the amount of

advertising during such programming should be reduced and a

clear separation between program material and commercial

established. The commission enforced the policy by modifying its

television license renewal form to obtain information about

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programs for children and about past and proposed commercial25

practices during these programs, Wiley told the committee.

Wiley also discussed the commission's publication of a

"Report on the Broadcast of Violent, Indecent and Obscene26

Material." He said the report was prepared "in response to

requests from this committee and others in Congress, studies onve"

the harmful effects of televised violence on children, and a

growing number of complaints concerning this type of27

programming." The report explored the kinds of steps that

might be taken to prohibit the broadcasting of obscene and

indecent material, and what could be done to shield children

from other sexually oriented or violent material that might be

deemed inappropriate for them. As a result of the study, the FCC

issued a declaratory order clarifying the use of the term

"indecent" in the statute that forbade the broadcast of profane,

indecent or obscene language, Wiley testified.

Clearly, this oversight hearing showed that the FCC

responded to the concerns of Congress and made appropriate

policy changes. The hearing also illustrated that Congress

employed a nonstatutory method of influencing the FCC -- that of

summoning the commission chairman to testify before a committee.

Later that year, the Subcommittee on Communications of the

House Committee on Interstate and Foreign Commerce conducted

four days of hearings to consider broadcast advertising and

children. Committee members used this session to grill Wiley

about commission policy regarding children's television. At one

point, Rep. Torbert Macdonald asked Wiley: "Speaking of things

that disappear without any sign of a trace that I could find

13

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out, what happened to the coordination between yourself and the

Children's Unit which was set up?" responded that the

commission's children's television unit did not exist as a

separate department but that some personnel continued to pay28

particuiur attention to the issue. Wiley later was asked why

the FCC had not appointed a child behavioral scientist to its29

staff.

Congressional muscles certainly were flexed at this

subcommittee hearing. These events lend support to the Krasnow,

Longley and Terry observation that standing committees such as

the Subcommittee on Communications can exert much influence

simply by conducting hearings, and that the FCC heeds30

suggestions made during such hearings.

Concerns about how sex and violence on television might

affect children were aired at congressional hearings in 1976.

Sen. Frank E. Moss opened a hearing in Salt Lake City, Utah,

with comments about the possible harm that could come to

children who viewed televised violence: "The Surgeon General's

expert advisory panel reported to our Senate committee in 1972

that 'the causal relationship between televised violence and

antisocial behavior is sufficient to warrant appropriate and

immediate remedial action." The statement left little doubt as

to where Moss stood on the need to regulate violence on31

television.

Later that year, the House, deeming the broadcast

industry's self-regulation a failure, began its own quest for an

answer to the "thorny problem" of trying to control violence and32

obscenity on television without engaging in censorship. It

14

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13

conducted three days of hearings that were prefaced by Rep.

Timothy E. Wirth's noting that the American Medical Association

had labeled televised violence a health threat and yet another33

reference to the surgeon general's report. The needs of child

audiences were a recurrent theme at the hearings.

Debate over violence and obscenity on television raged on

into 1977, with the special needs of children continuing to

serve as a focal point. At a hearing to consider television

broadcast policies, Sen. Ernest F. Hollings indicated that

Congress was prepared to take an active role in regulating

television programming content:

If charges of excessive violence, sexuality,

obscenity, and lack of special attention to the needs

of children and teenagers and failure to fully

implement equal employment policies are well founded,

then the broadcasting responsibilities are not being

met and remedial action would be considered. When

appropriate, we are fully prepared to improve the34

broadcaster's ability to serve the public.

Finally, at an appropriations hearing, Wiley was questioned

about the FCC's activities regarding children's programming, the

family viewing hour, its research efforts on the effects of

television on children and commercial standards for children's35

programs.

Wiley's experience at the appropriations hearing was

typical of Congress' treatment of the FCC throughout the latter

half of the 1970s. Rather than express their views on broadcast

policy by introducing proposed legislation, lawmakers conducted

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14

hearings at which they interrogated Wiley and questioned other

witnesses who ranged from students to teachers to network

officials. Through their questions and comments, legislators'

positions on regulation of children's television programming

became clear: The topic should be placed at the top of the FCC's

agenda.

Other Regulatory Players

The White House apparently did not exert great influence

over the FCC in the latter half of the 1970s. Two presidents

served during this period, Gerald Ford and Jimmy Carter. Both

advocated a move away from government regulation generally, but

neither seemed to pay particular attention to communication

policy.

Ford's support for deregulation focused on repeal of

government regulations that inhibited competition and burdened

business, but no evidence could be found of any Ford initiatives

regarding communications policy. The chairman of the FCC under

Ford was Wiley, who reflected the president's moderately

deregulatory and pro-business stance. Wiley frequently managed

to rally commissioners to consensus, and produced four times the

number of decisions of any previous administration of similar

duration.

Carter also made regulatory reform a goal, but focused much

of his attention on the airline industry rather than

communications. In fact, the Carter administration eliminated

the Office of Telecommunications Policy created by President

Richard M. Nixon -- a move viewed by some as downgrading the

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importance of communications issues. Carter's apparent lack of36

interest was characteristic of previous presidents.

Carter appointed Charles Ferris chairmdn of the FCC. Ferris

failed to win the same commission support that his predecessor,

Wiley, had. However, Ferris carried out deregulatory programs37

favored by Carter and was attentive to citizen complaints.

The premier citizen group in children's television

regulation, ACT, was active during the late 1970s. It was

dissatisfied with the Report and Policy Statement of 1974

because of its lack of quantification requirements and filed

suit in the U.S. Court of Appeals in 1976. The following year,

the court ruled that the FCC's decision not to impose

quantification requirements was a legitimate exercise of agency38

discretion. By filing lawsuits, testifying before Congress and

petitioning the FCC for policy changes, members of ACT managed

to win attention for their cause. The group helped make the

quality of children's television a subject of public debate and

a concern of policymakers.

Also during this time period, broadcasters responded to

pressure from Congress and the FCC by establishing the family

viewing hour. Later, after the family viewing hour was struck

down by the court, the networks said they were voluntarily39

reducing the amount of violence shown on television. But

broadcasters had a reason for such compliance. It was during

this period that cable began to pose a competitive threat to

broadcasters; this may explain broadcasters' efforts to please

their regulators.

17

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Summary

Although a cause-and-effect relationship cannot be

established from a review of federal documents, the documents

nonetheless suggested that the FCC of the late 1970s was in

harmony with Congress -- or at least more willing to comply with

Congress' regulatory goals the FCC of the latter 1980s proved to

be. For example, in 1978, the FCC decided to assess the

effectiveness of the recommendations it had set forth in its

Report and Policy Statement of 1974. It issued a Notice of

Inquiry to solicit comments about broadcasters' compliance with

the policy and established a Children's Television Task Force.

The task force found that educational programming had not40

increased significantly from 1974 to 1978. In turn, the full

commission proposed quantitative children's programming41

Of course, other regulatory players, such as the citizen

group ACT, likely influenced the FCC also. The main point to be

made here is that the FCC did not disregard congressional policy

goals. The evidence suggests the FCC of the late 1970s was

responsive to Congress' desires with regard to children's

television regulation.

Con ress and the FCC: The 1980s

Background: 1980-1984

The new decade brought a new president, Ronald Reagan, who

supported sweeping deregulation. Reagan's appointee to the FCC

chairmanship, Mark S.42

views. The shift in

Fowler, natu.Ally shared the president's

regulatory philosophy meant the children's

1 8

16

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17

43television issue was assigned a low priority at the FCC. Under

Fowler, the commission voted to rescind the 112Rat_RELE2112Y44

Statement of 1974.

Other evidence of the FCC's deregulatory stance in the

first half of the 1980s was plentiful. In 1981, the commission

repealed the need for radio broadcasters to keep program logs

and eliminated guidelines regarding nonentertainment

programming, commercialization and ascertainment of important45

community issues. In 1984, the commission eliminated

commercialization and programming guidelineb -or television

broadcasters, and abolished the ascertainment requirement. The

commission boldly proclaimed its new philosophy in the decision:

Our action today constitutes another step in the

deregulation of the telecommunications industry. It

reflects the importance and viability of market

incentives as a means of achieving our regulatory

objectives and will provide television broadcasters

with increased freedom and flexibility in meeting the46

continuously changing needs of their communities.

Thus, at mid-decade, tl,e FCC was confident the marketplace

would ensure that broadcast audiences got what they wanted.

Congress, too, was ready to begin deregulating the airwaves, but

some members wanted to proceed more rapidly than others, making

the early 1980s a transitional period in broadcast regulation.

The rift appeared to be a partisan one, with the

Republican-controlled Senate (taking its cue from the

Repablican-occupied White House) prepared for more extensive

deregulation than the Democrat-controlled House. Nonetheless,

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18

the Omnibus Budget Reconciliation Act of 1981 contained

provisions that extended the licensing terms for broadcast

stations from three years to seven for radio stations and five47

for television stations.

Republican interest in deregulation was characterized by48

the Senate's Broadcast Deregulation Act of 1981. The bill

would have required the FCC to renew broadcast licenses as long

as stations had committed no serious violations of the

Communications Act. It also would have relieved radio stations

of several regulatory requirements: the need to provide news and

public affairs programming, the need to maintain program logs,

restrictions on the scheduling of commercial matter, and the

need to ascertain community problems, needs and interests. This

legislative bid to deregulate radio did not achieve the success

that the FCC's previously mentioned initiative did; the bill

passed in the Senate but died in the House.

House hearings about other broadcast deregulation measures

gave clues about the nature of the opposition encountered there.

Democrat Timothy E. Wirth was chairman of the Subcommittee on

Telecommunications, Consumer Protection and Finance of the House

Committee on Energy and Commerce. At a 1981 hearing to consider

three broadcast deregulation bills, he expressed concern over a

Republican-sponsored proposal to eliminate certain regulatory49

requirements. Wirth was even more critical of Republican

deregulatory proposals at a hearing the following year.

Republican-sponsored legislation that would modify license

renewal procedures was under consideration. Wirth stated:

As long as I am chairman of this subcommittee, I will

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19

do everything I can to prevent the passage of such

sweeping, ill-conceived deregulatory measures that do

not provide sora alternative means of protecting the50

public interest.

The bills introduced at the two hearings just mentioned did

not become law. The fact that efforts were made to use

legislation as a regulatory tool, however, distinguished this

period of congressional activity from the 1970s, when

nonstatutory pressures prevailed. The bills also indicated that

the FCC was aligned with deregulatory agenda of Republican

members of Congress. As the decade wore on, Congress' inability

to pass legislation aimed at broadcast regu/ation would prove a

major obstacle to forcing an uncooperative FCC into compliance

with Democratic initiatives for children's television

programming.

Years Under Scrutiny: 1985-1989

Congress and the FCC

Congressional use of legislation as its regulatory tool of

choice continued into the second half of the decade. The new

tactic was applied to children's programming, as illustrated by

the Children's Television Act of 1985. The bill, H.R. 3216,

introduced by Wirth, stated as its purpose "to amend the

Communications Act of 1934 to increase the availability of

educational and informational television programs for children."

It also spelled out its sponsors' dissatisfaction with the FCC:

[T]he Federal Communications Commission, in

concluding its proceeding on children's television,

21

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2 0

has declined to take effective steps to increase

educational and informational programming designed

for children on commercial television and has instead

rendered broadcasters' obligations to serve children51

vague and unenforceable.

The bill would have required the FCC to conduct a hearing

at license renewal time if a television station had failed to

broadcast a minimum of seven hours of children's programming a

week, five hours of which were to be aired Monday through52

Friday. The bill also would have forced the commission to

conduct an inquiry into program-length commercials aimed at53

children 12 and younger.

Additional dissatisfaction with FCC policy was voiced at a

House subcommittee hearing to consider the bill. In his opening

remarks, Rep. John Bryant, the presiding officer, stated:

[T]he public interest demands television programming

or children. Today the FCC prefers to rely on

"marketplace competition" rather than rules or

regulations to insure that broadcasters meet their

public interest obligations. In many areas, that

approach is effective. In the case of children's54

programming, it clearly is not.

The bill died in the 99th Congress. It is not surprising,

in that Republicans controlled the White House and Senate. But

that changed in the 100th Congress, making regulation by

legislation more politically feasible -- at least theoretically

-- than it had been during Reagan's first term. The 1986

congressional elections shifted the balance of power: Democrats

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21

now controlled both houses of Congress, but a Republican was

still in the White House. Despite the change in congressional

membership, the scene would again prove to be set for the

failure of legislation aimed at reregulating children's55

television.

Three new bills aimed at regulating aspects of children's

television were introduced to the 100th Congress. A hearing was

conducted in the first session to consider one such bill, and

the tone of the forum was one of growing bitterness toward the

FCC. Rep. Edward J. Markey began the hearing by stating:

It is not surprising that like a stubborn child,

the Commission has refused to act. The Reagan era FCC

has shown [a] disquieting tendency to ignore

procedures and clear congressional commands in56

pursuit of its own narrow, ideological agenda.

Markey's bill aimed to reinstate the commission's 1974

commercial guidelines for children's television. It explicitly

stated that the commission had erred in repealing the

guidelines, making it necessary for Congress to force

reregulation of the matter. The bill would have limited the

duration of advertising in children's programs to 9.5 minutes

per hour on weekends and 12 minutes per hour on weekdays;

required the separation of commercials from program content with

an appropriate visual, aural or other type of device; and would

have eliminated practices that used program characters to57

promote products.

In the second session of the 100th Congress, two more bills

to regulate children's television were introduced. One, H.R.

23

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22

3966, was similar to the Markey proposal in that it would have

required the FCC to reinstate the restrictions on advertising

during children's television. The new proposal, sponsored by

Rep. John Bryant, also would have enforced the obligation of

broadcasters to meet the educational and informational needs of

child viewers by requiring television stations to air a

"substantial amount" of programming that served children 12 or

younger. It also specified that the programming be "reasonably

scheduled throughout the week" and directed to specific age

groups of children. The bill called upon the FCC to write any58

regulations needed to carry out the plan.

The other bill introduced during the second session, H.R.

4125, would have exempted television broadcasters from the

Communications Act's antitrust provisions to allow them to work

together on voluntary guidelines to promote the educational

impact of television for children and to "avoid abusive59

advertising practices during such programming." At a hearing

to consider these two bills as well as the Markey proposal,

dissatisfaction with the FCC again was voiced. Rep. Al Swift

said:

We're here because the FCC hasn't been doing its job

... It leaves the Congress in a position of playing

chicken with the FCC again. They're daring us to pass60

legislation.

Both H.R. 3288 and H.R. 4125 died in committee, but H.R.

3966, the "Children's Television Practices Act of 1988," made it

all the way to Reagan's desk before expiring from lack of the

president's signature. Thus 100th Congress ultimately could not

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23

force a recalcitrant FCC to cooperate. This "powerful determirvx

of regulatory policy," as Krasnow, Longley and Terry called it,

failed because another determiner -- the White House -- had

another agenda and the political clout to enforce it.

Other Regulatory Players

Reagan paid much more attention to communications issues

than did his predecessors. He appointed an FCC chairman, Fowler,

who heartily endorsed and carried out the president's

deregulatory views. Fowler served for an unprecedented six

years, eliminating or relaxing regulations in an effort to61

achieve a competitive broadcast marketplace. In setting

policy, the FCC was taking its cue from the White House instead

of Capitol Hill. Moreover, the White House provided essential

backing to the FCC. For example, in 1983 Reagan appointed Dennis

Patrick to the commission, a man who shared the president's

views and would eventually succeed Fowler as chairman. Reagan

also vetoed Congress° attempt to codify the Fairness Doctrine,

decrying the bill as "antagonistic to the freedom of expression62

guaranteed by the First Amendment."

Broadcasters, however, complained of no such philosophical

rift with Congress. The National Association of Broadcasters,

the main trade group for commercial broadcasters, had found the

Children's Television Practices Act of 1988 acceptable. Once

again, it was compliance with a motive. The NAB had hoped such a

stance would inspire Congress to support broadcasters by passing

legislating to require cable companies to carry local television63

stations on their channels.

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24

The citizen group ACT continued its litigious involvement

with broadcast regulation in the late 1980s. It filed suit

against the FCC in federal district court in Washington, D.C.,

challenging the commission's withdrawal of children's television

commercialization guidelines. The court ruled in June 1987 that

the commission had failed to adequately justify deregulation and

remanded the issue to the commission for elaboration. The court

stated:

[W]ithout explanation, the Commission has suddenly

embraced what had theretofore been an unthinkable

bureaucratic conclusion that the market did in fact

operate to restrain the commercial content of64

children's television.

In response to the district court ruling in 1987, the FCC

issued in November 1987 a Notice of Proposed Rule Making/Notice

of Inquiry to solicit comments about commercialization

guidelines for children's television. The filing deadline for

comments was Feb. 18, 1988. The commission took no further65

action on this matter in the 1980s.

Congress and the FCC: The 1990s

White House leadership has changed since the defeat of the

1988 act, and so too has the broadcast regulatory scene. A new

law requires commercial television broadcasters to limit the

duration of advertising in children's programming to 10.5

minutes per hour on weekends and 12 minutes per hour on

weekdays. In addition, the law requires the FCC to consider,

during its review of television broadcast licenses, whether the

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25

station has served the educational and informational needs of66

children in its overall programming.

The law became effective in October 1990 without President

George Bush's signature; thus its passage does not neceisarily

signal a new era for regulation of children's television.

Although Bush stopped short of vetoing the legislation, he

indicated he does not support it. Bush remains skeptical about

the constitutionality and efficacy of the measure. First, he

believes that the First Amendment precludes government

intervention in media content. Second, he thinks that, to the

tent broadcasters rely on advertising revenues to support

cTildren's programming, the act's commercial limits will reduce,

i:ather than enhance, the quantity and quality of children's67

programming.

The Bush FCC, however, voiced unanimous support for the new

legislation at an April 1991 meeting. Commission Chairman Alfred68

C. Sikes, who has a reputation as a deregulator, said of the

act: "The end result is that a lot of broadcasters will have a

lot more educational and informational programing [sic]69

available to children."

In summary, it must be noted that although the regulatory

bill has become law, the time and effort it has taken Congress

to influence children's television regulation in the face of an

uncooperative FCC underscores the change in the relationship

between the two players in the broadcast regulatory process.

Conclusion

The FCC's regulatory agenda in the latter half of the 1980s

27

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26

was to promote deregulation on many fronts, including children's

television. This agenda was set in large part by President

Reagan, who took a more active interest in communication than

did his predecessors. Reagan appointed Mark S. Fowler, a loyal

deregulator, as chairman of the FCC, and Fowler carried out the

president's agenda. Another adherent to the marketplace approach

to broadcasting, Dennis Patrick, succeeded Fowler.

In contrast, Congress -- with both houses now controlled by

the Democrats -- sought in the late 1980s to regulate children's

television programming content and its level of

commercialization. Clearly, the Democrats' goals were

diametrically opposed to those of the president and his FCC

appointees. Congress abandoned its traditional broadcast

regulation approach of bringing nonstatutory pressure upon the

FCC and instead tried to pass laws to force the FCC tv do its

bidding.

This research supports tha conclus!ln that the commission

prevailed in large part because it formed an alliance with

another player -- a strong president. Unlike other recent

presidents, Reagan took an active interest in communication

policy. He appointed resolute chairmen who implemented his

policy. FCC policy was very much Reagan policy and the White

House responded with appropriate support.

With a strong president behind it, the FCC was able to

disregard pressures from other regulatory players with apparent

impunity. For example, alliance with a president who sougnt

deregulation insulated the FCC from congressional pressures in

several respects. First, the commission was able to ignore

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27

pointed criticism from members of Congress -- the kind of

criticism it seemed to take seriously in the late 1970s. Second,

because the commission promoted deregulation, its chairman

questioned the very existence of the regulatory agency and

reduced staff accordingly. An agency that is downsizing probably

is not vulnerable to budget cuts. Thus Congress' power of the

purse -- one of its traditional nonstatutory controls over the

FCC -- was benumbed. Third, the FCC's alliance with the

president protected it from congressional attempts to override

commission policy with legislation. Reagan refused to sign

legislation that conflicted with his policy of broadcast

deregulation.

In addition, alliance with the president may have made it

easier for the FCC to ignore two other players: courts and a

citizen group. Although ACT brought a successful court challenge

against the FCC's children's television policy, the commission

failed to respond meaningfully to the court order. The

commission seems fully aware of the court's lack of enforcement

power. Furthermore, neither the president nor the FCC seemed to

see a need to respond to ACT's pressure.

This research has shown that, given a powerful president

with a broadcast agenda of his own, Congress could not even

guide broadcast policy in the direction it wanted. It suggests

the president has the power to dominate the regulatory process

at times, but conclusions about the president's power must be

drawn with caution due to the limitations of the case study

methodology employed in this study. Presidential influence on

29

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28

broadcast regulatory policy, particularly during the Reagan

administration, would be a worthy topic for future research.

These observations about Congress° power over the

regulatory process are particularly significant in that they

depart from the findings of previous studies, which generally

portrayed the federal legislature as a very powerful player in

the process. This research has highlighted the weakness of the

legislature as a broadcast regulator.

Any speculation about the implications of these findings

must be tempered with a reminder that the regulatory process is

influenced by many factors that change constantly. What is true

about the process today may not be tomorrow, due to unforeseen

developments. However, this research suggests that citizens who

seek to influence broadcast regulation in the present political

situation might enhance their chance for success by cultivating

the support of President Bush as well as Congress. It does not

appear that Congress can regulate through statute without at

least the president's tacit approval. In addition, the courts do

not seem effective in promoting change at the FCC. The president

clearly can be a powerful player in today's regu -,tory dynamic.

30

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29

NOTES

1. E. Krasnow, L. Longley & H. Terry, The Politics of

Broadcast Regulation 88 (3d ed. 1982). These committees include

the Senate Commerce Committee, House Interstate and Foreign

Commerce Committee and the communications subcommittees.

2. Id. at 33. In a personal communication with the author

on Oct. 10, 19901 Terry said that adjustments to the model are

being considered. They are minor relative to this study.

3. See, e.g., Uscinski, "Deregulating Commercial

Television: Will the Marketplace Watch Out For Children?" 34 Am.

U.L. Rev. 141 (1984); Versfelt, "Constitutional Considerations

of the Children's Television Act of 1988: Why the President's

Veto Was Warranted," 11 comgLgEl 625 (1989); and Watkins,

"Improving Educational and Informational Television for

Children: When the Marketplace Fails," 5 Yale L. & Pol'y Rev.

345 (1987).

4. Dyk & Goldberg, "The First Amendment and Congressional

Investigations of Broadcast Programming," 3 J. Law & Politics

625 (1987).

5. Shooshan & Krasnow, "Congress and the Federal

Communications Commission: The Continuing Contest for Power," 9

COMM/ENT 619 (1987).

6. Krasnow & Shooshan, "Congressional Oversight: The

Ninety-Second Congress and the Federal Communications

Commission," 26 Fed. Comm. Bar J. 81 (1973) at 82.

7. Tucker & Saffelle, "The Federal Communications

Commission and the Regulation of Children's Television," 26 J.

Broadcasting 657 (1982).

31

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30

8. McGregor, "Assessing FCC Response to Report of

Children's Television Task Force," 63 Journalism Q. 481 (1986).

See also Atkin & Lin, "Children's Programming Reconsidered," 10

Comm. & the Law 3 (October 1988) for an analysis of requirements

that broadcasters provide a specified minimum of children's

television programming.

9. Kunkel & Watkins, "Evolution of Children's Television

Regulatory Policy," 31 J. Broadcasting & Electronic Media 367

(1987).

10. E. Krasnow, L. Longley and H. Terry, supra note 1, at

33.

11. 47 U.S.C. Sec. 151 (1982).

12. 47 U.S.C. Sec. 301 (1982).

13. 47 U.S.C. Sec. 303 (1982).

14. E. Krasnow, L. Langley & H. Terry, supra note 1, at 21.

15. K. Middleton & B. Chamberlin, The Law of Public

Communication (1988), at 532-4.

16. E. Krasnow, L. Langley & H. Terry, supra note 1, at

55-6.

17. 47 U.S.C. Sec. 155 (1982).

18. E. Krasnow, L. Longley & H. Terry, supra note 1, at

37-8.

19. Id. at 91-2.

20. Dyk & Goldberg, supra note 4, at 637.

21. Sex and Violence on TV: Hearin s Before the Subcomm. on

Communications of the House Comm on Interstate and Fortian

Commerce 94th Cong. 2d Sess. 2-3 (1976). The family viewing

policy was challenged in Writers Guild of America v. FCC, 423

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31

F.Supp. 1064 (C.D. Cal. 1976). The district court held that the

policy violated the first amendment. However, the court of

appeals reversed, holding that the matter should be referred to

the FCC. Writers Guild of America v. FCC, 609 F.2d 355 (9th Cir.

1979), cert. denied 449 U.S. 824 (1980). The policy eventually

was abandoned.

22. 20 F.C.C.2d 1 (1974) [hereinafter Report andpoLLgy

Statement of 1974].

23. Oversight of the Federal Communications Commission:

Hearin s Before the Senate Comm. on Commerce, 94th Cong., 1st

Sess. 1 (1975) (statement of Sen. John O. Pastore).

24. 50 F.C.C.2d 1 (1974).

25. Oversi ht of the Federal Communications Commission:

Hearing Before the Senate Comm. on Commerce, 94th Cong., 1st

Sess. 3 (1975).

26. 51 F.C.C.2d 418 (1975).

27. Oversight of the Federal Communications Commissio,t:

Hearing Before the Senate Comm. on Commerce, 94th Cong., 1st

Sess. 4 (1975).

28. Broadcast Advertisin and Children: Hearin s Before the

Subcomm. on Communications of the House Comm. on Interstate and

Foreign Commerce, 94th Cong., 1st Sess. 372 (1975).

29. Id. at 375.

30. E. Krasnow, L. Longley & H. Terry, supra note 1, at

112-13.

31. Im act of Television on Children: Hearin Before the

Subcomm. on Communications of the Senate Comm. on Commerce, 94th

Cong. 2d Sess., 1 (1976).

33

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32

32. Sex and Violence oT TV: Hearings Before the Subcomm. on

Communications of the House Comm. on Interstate and Foreign

Commerce, 94th Cong. 2d Sess. 4 (1976) (statement of Rep. Timothy

E. Wirth).

33. Id. at 4-5.

34. Television Broadcast Policies: Hearin s Before the

Subcomm. on Communications of the Senate Comm. on Commerce

Science and Transportation, 95th Cong. 1st Sess. 1-2 (1977).

35. De artments of State Justice and Commerce the

Judicia and Related A encies A..ro riations for 1977:

Hearings Before a Subcomm. on Apprckriations of the House Comm.

on Appropriations, 94th Cong. 2d Sess. 1261-1324 (1977).

36. 33 Congressional Quarterly Almanac 528 (1977).

37. E. Krasnow, L. Langley & H. Terry, supra note 1, at

41-5. During his last days in office, Ferris tried to persuade

the commission to eliminate some radio regulations.

Broadcasting, Jan. 12, 1981, at 27.

38. Action for Children's Television v. Federal

Communications Commission, 564 F.2d 458 (D.C.Cir. 1977), 458-9.

39. Almanac, supra note 36, at 565.

40. Television Programming for Children: A Report of the

Children's Television Task Force, 1979.

41. Children's Television Programming and Advertising

Practices, 75 F.C.C.2d 138 (Notice of Proposed Rulemaking 1980).

42. McGregor, supra note 8, at 482.

43. Id.

44. Children's Television Pro rammin and Advertisin

Pra tices, 96 F.C.C.2d 634 (1983).

3 4

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33

45. Deregulation of Radio, 84 F.C.C.2d 968, 971 (1981).

46. Deregulation of Commercial Television, 98 F.C.C.2d

1076, 1077 (1984).

47. Omnibus Budget Reconciliation Act of 1981, Pub. L. No.

97-35, ch. 2, 95 Stat. 736 (1981).

48. H.R. 1629, 97th Cong., 1st Sess. (1981). The bill was

introduced by Sen. Howard Cannon, a Nevada Democrat, with

Republican co-sponsors Bob Packwood, Barry Goldwater and

Harrison Schmitt and Democratic co-sponsor Ernest Hollings.

49. Broadcast Reform Proposals: Hearings on H.R. 4726, H.R.

4780 and H.R. 4781 Before the Subcomm. on Telecommunications

Consumer Protection and Finance of the Comm. on Ener. and

Commerce, 97th Cong., 1st Sess. 2 (1981)

50. Broadcast Re ulation Reform Pro osals: Hearings on H.R.

4726 5242 5584 5585 and 5752 Before the Subcomm. on

Telecommunications, Consumer Protection and Finance of the Comm.

on Energy and Commerce, 97th Cong., 2d Sess. 2 (1982).

51. H.R. 3216, 99th Cong., 1st Sess. (1985). The proceeding

referred to was the docket under which children's television

programming was reviewed -- the docket that was clo6ed by

Children's Television Pro ramming and Advertisin Practices, 96

F.C.C12d 634 (1983).

52. Id. at 4-5.

53. Id. at 6.

54. Im ravin Children's Television Pro rammin Content:

Hearing Before the Subcomm. on Telecommunications, Consumer

Protection and Finance of the House Comm. on Energy and

Commerce, 99th Cong., 1st Sess. 3 (1985).

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34

55. Statistical Abstract of the United States: 1989 250

(109th ed. 1989).

56. Commercialization of Children's Teievision: Hearing on

H.R. 3288 Before the Subcomm. on Telecommunications and Finance

of the Committee on Energy and Commerce, 100th Cong., 1st Sess.

2 (1987).

57. H.R. 3288, 100th Cong., 1st Sess. 2-3 (1987).

58. H.R. 3966, 100th Cong., 2d Sess. 6-7 (1988).

59. H.R. 4125, 100th Cong., 2d Sess. 2 (1988). The bill

would have modified 47 U.S.C. Sec. 313 (1982).

60. Commercialization of Children's Television: Hearin s on

H.R. 3288 H.R. 3966 and H.R. 4125 Before the Subcomm. on

Telecommunications and Finance of the House Comm. on Energy and

Commerce, 100th Cong., 2d Sess. 155 (1988).

61. Broadcasting, April 10, 1989, at 28.

62. 43 Congressional Quarterly Almanac 18-D (1987).

63. 44 Congressional Quarterly Almanac 578-9 (1988).

64. Action for Children's Television v. Federal

Communications Commission, 821 F.2d 741, 746 (D.C.Cir. 1987).

For a discussion of the different philosophies of the FCC and

the D.C. Circuit Court of Appeals in the late 1980s, see Trauth

& Huffman, "A Case Study of a Difference in Perspectives: The DC

Circuit Court of Appeals and the FCC," 33 J. Broadcasting &

Electronic Media 247 (1989).

65. 2 F.C.C.Rcd. 6822 (1987).

66. Pub. L. No. 101-437, 104 Stat. 998 (1990).

67. Broadcasting, Oct. 22, 1990, at 35.

68. Broadcasting, Aug. 14, 1989, at 29.

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69. Broadcasting, Apr. 15, 1991 at 90.

3 ..,1

35

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