With 'Milquetoast' Kidvid Revision, No Congressional Action Anticipated
Kidvid rules are either an anachronism with significant First Amendment problems or a small price for broadcasters to pay in exchange for the "money-making machine" that's a broadcast license. Those were the opposing viewpoints at a Media Institute lunch Tuesday with former Commissioner Robert McDowell, now at Cooley, debating Georgetown Law Institute for Technology Law & Policy's Gigi Sohn, a former FCC chairman's aide. The only common ground was that Congress is unlikely to get involved.
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The rules are "hardly content neutral," but the argument when they were adopted is that the compelling state interest in educating kids and spectrum scarcity justified them, McDowell said. But massive changes in the video market -- with big declines in linear broadcast viewership by kids and big growth in their mobile streaming -- makes those rules antiquated. Since some 0.5 percent of TV households have no internet access and no pay-TV subscription, "maybe we should reform universal service … rather than shred the Constitution," he said.
But the FCC likely will opt for “milquetoast, modest reform," though it will get plenty of criticism for even that, McDowell said. Replied Sohn, "they're not milquetoast, they're radical." She hopes the agency does "very little or nothing at all."
Sohn said the biggest problem with the NPRM (see 1806210021) is the plethora of assumptions without any data backing them. Lots of programming targeting kids is available through means other than broadcasters, but there's no data to answer how that meets their educational needs, she said. There's a paucity of statistics about how proposed changes in the NPRM would affect low-income and minority households, which are particularly dependent on over-the-air broadcast signals. Kidvid rules might need tweaking, but they're "a nominal ask" of broadcasters in exchange for free spectrum and benefits like must-carry and syndicated exclusivity rules, Sohn said.
Asked about the appropriateness of the three-hour requirement on every channel, Sohn said the rules allow for sizable flexibility and broadcasters can do less if they supplement it with short-form or nonscheduled programming. She said broadcasters are contradicting themselves when claiming they want flexibility but don't use that category B option.
The two disagreed on the three-hour requirement and the 30-minute length to qualify as core programming. McDowell urged eliminating the quarterly kidvid reporting requirement. Sohn said annual or semi-annual reports might be adequate, but some reporting is needed to enforce the law, and the paperwork burden isn't as onerous as broadcasters indicate.
Rather than the E/I (educational/informational) symbol -- "a government seal of approval," McDowell said, tongue in cheek -- he said the private sector should have a ratings system, akin to the MPAA's movie ratings. Sohn said E/I isn't a big deal, and without proper guidelines of what constitutes such content, broadcasters used to count the GI Joe: A Real American Hero series toward that requirement.
McDowell said given the difficulties reaching consensus on anything on Capitol Hill, Congress is unlikely to react with more prescriptive legislation in response to whatever the FCC does. Sohn said weaker rules would generate "a lot of sturm und drang," but legislators won't pass anything.