IPR works with a number of organizations concerned with the effect of media on the health and well-being of children. On their behalf, IPR has pursued legislative and administrative advocacy focusing on the provision of quality children’s programming, unfair marketing to children, and the effect of media on childhood obesity.
1. License Renewal Challenges to Stations Failing to Serve the Educational Needs of Children
In March 2007, IPR’s efforts led to an unprecedented $24 million dollar fine against Univision Communications for violations of the Children’s Television Act and Federal Communications Commission Rules. The FCC issued the record breaking fine in response to IPR’s petition to deny the license renewal for the Univision affiliate in Cleveland, Ohio, for failure to serve the educational and informational needs of children. The license renewal challenge was filed on behalf of the Office of Communication of the United Church of Christ, Inc.
The Children’s Television Act of 1990 (“CTA”) requires broadcasters to serve the educational and informational needs of children. In 1996, the Commission adopted a processing guideline that allows broadcasters to meet their CTA obligations by airing three hours or more of programming specifically designed to educate children.
IPR students worked closely with members of the United Church of Christ in Cleveland as well as experts in children’s programming to assess whether television stations were meeting their obligations under the CTA. Ultimately, this review led to the filing of license renewal challenges against WQHS-TV, a Univision owned and operated station that broadcasts Spanish language programming as well as another Cleveland area stations. The petition alleged that the only program WQHS-TV claimed as “core,” “Complices al Rescate,” was not specifically designed for children nor did it have education as a significant purpose. Thus, for a substantial period of time WQHS-TV did not serve children’s educational and informational needs.
In March 2007 the FCC approved a sale of Univision Communications, including WQHS-TV, to Broadcasting Media Partners. As a condition of the sale, the FCC required Univision to pay a $24 million fine pursuant to children’s programming violations put forth in IPR’s petition. Univision has also agreed to a detailed plan that will ensure its future compliance with the Children's Television Act and other rules.
The petition to deny the license renewal of another Cleveland station, WUAB, along with the petitions IPR filed in 2004 against two Washington D.C. stations for similar violations of the CTA, are still pending before the FCC.
2. Comments on Station Compliance with the Children’s Television Act
In summer 2007, IPR filed comments demonstrating that broadcast home shopping channels were providing minimal service to children by failing to provide educational and informational programming consistent with the Children’s Television Act and FCC rules. IPR drafted the comments as part of an FCC request for information on whether broadcast stations predominantly devoted to commercial content, such as program-length advertisements, were serving the public interest, and in particular, whether such stations were meeting their obligations under the CTA. The FCC’s comment request was in response to a thirteen-year-old petition asking the FCC to reconsider its decision that home shopping broadcast stations operated in the public interest and were entitled to top mandatory carriage by local cable systems.
IPR researched the children’s programming schedules of all broadcast home shopping stations and filed comments arguing that a number of home shopping stations were improperly claiming as core programming shows which had no educational content and/or were not designed specifically to educate children. IPR also demonstrated that over 40 home shopping stations had been admonished by the FCC for children’s television rule violations over the past two years. The comment was filed on behalf of members of the Children’s Media Policy Coalition, and was the sole comment substantively addressing home shopping networks’ service to children.
IPR is also drafting comments that will be filed in response to another FCC public notice requesting comment on whether television stations generally are complying with the letter and spirit of the CTA.
3. Comments Filed with FTC regarding Food Marketing to Children
Over the past year IPR filed several comments on behalf of its clients, including Children Now and the National PTA, urging the FTC to use its investigative powers to compel companies to provide information on their marketing practices. The FTC is seeking such information in response to Congressional direction to prepare a report on the marketing activities of food companies to children and adolescents. IPR encouraged the FTC to seek information on the types of media food companies are using and how they plan to use new media, including cell phones, ipods, and the internet to reach children. The FTC adopted many of IPR’s recommendations, and recently sent information requests to 44 companies regarding their marketing practices.
4. Children’s Television Obligations of Digital Television Broadcasters
In September 2006, the FCC adopted a Further Order implementing a joint public interest group and industry proposal (“Joint Proposal’) expanding educational program offerings for children and protecting children from excessive advertising on broadcasters’ digital television
streams. The proposal, which IPR negotiated with major broadcast and cable networks on behalf of the Children’s Media Policy Coalition (which includes the American Academy of Pediatrics, American Psychological Association, Children Now, National PTA, and the Office of Communication of the United Church of Christ, Inc.) resolved legal challenges to the FCC’s 2004 Children’s Television Order made by IPR’s clients and major media companies, including Disney, Viacom, and Time Warner.
1. FCC Rulemaking on Remand in Prometheus Radio
In July 2006, the FCC issued a Further Notice of Proposed Rulemaking in a proceeding that combined the issues remanded by the US Court of Appeals in Prometheus Radio Project v. FCC, 373 F.3d 372 (3d Cir. 2004), cert denied 125 S. Ct. 2902 (2005), with its 2006 Quadrennial review of the FCC’s Broadcast Ownership rules. In Prometheus Radio, IPR represented the public interest petitioners in a successful challenge to an earlier FCC order relaxing the broadcast ownership limits. In October 2006, IPR filed extensive comments in response to the FCC’s Further Notice.
The comments were filed on behalf of the Office of Communication of the United Church of Christ, Inc., National Organization for Women, Common Cause and other public interest organizations. The comments urged the Commission to tighten or maintain existing broadcast ownership limits so as to increase opportunities for minorities and women to own broadcast stations and to best promote the public interest goals of diversity, localism, competition, and efficient use of the spectrum. Specifically, the comments advocated that the Commission make increasing opportunities for minorities and women to own broadcast stations a central focus of the proceeding because the Commission’s ownership data showed that the percentage of broadcast stations owned by minorities and women is in the low single digits, has been stagnant or decreasing, and is far below that of other industries. The comments further argued that the Commission should ensure that local television stations, newspapers, and radio stations are held by multiple, diverse owners because these media are the primary sources of news and information for the vast majority of the American public and alternative information sources provide little if any local news. To diversify the ownership of these media, the comments made the following proposals:
• Local TV: The Commission should return to a single-license restriction on local television ownership since digital television enables licensees to broadcast multiple program streams using a single license, thus obviating the need to acquire a second or third license to provide additional programming to the public.
• Newspaper-Broadcast Cross-Ownership: The Commission should retain the current prohibition on common ownership of a daily newspaper and a broadcast station serving the same area since recent developments that allow broadcasters and newspaper publishers to disseminate content on other platforms have undercut arguments for relaxing the cross-ownership restriction and studies show little or no public benefit from cross-ownership.
• Local Radio: The Commission should lower the maximum number of stations that may be commonly owned in a market to increase opportunities for minorities and women to acquire
radio stations, foster the diversity of views available to the public, improve local service, and encourage efficient use of the spectrum.
In addition, the comments urged the Commission to improve its data collection and to proceed cautiously so that the effects of any changes could be assessed and corrective action taken if needed.
Students during the fall semester analyzed the numerous comments filed by other parties and drafted reply comment that were filed in January 2007. The reply comments pointed out that industry commenters supporting deregulation offered surprisingly little evidence in support of their position, and instead re-argued issues that had already been settled in the Prometheus decision. For example, the industry once again argued that the Internet had rendered broadcast media ownership limits unnecessary. But in fact, that the vast majority of local Internet content originates from broadcast sources and major newspapers and in any event, many Americans do not have access to the Internet.
The reply comments also urged the Commission to reject the industry claims that that their alleged financial distress justifies additional consolidation. Not only are the industry claims of financial woe greatly exaggerated, but evidence shows that the public benefits from competition rather than increased consolidation.
Finally, the reply comments responded to comments arguing that newspaper-broadcast cross-ownership rule was unconstitutional, pointing out that because the Third Circuit unanimously rejected these arguments in Prometheus, and the Supreme Court declined to review that decision, the Commission was bound to reject these arguments under the law of the case doctrine. In any event, the argument that the rules should be subjected to a higher level of scrutiny because broadcast spectrum scarcity no longer exists both misreads fifty years of Supreme Court precedent and ignores the reality that the spectrum remains unable to accommodate all who wish to use it.
This rulemaking is still pending, and IPR expects to file additional comments in the fall 2007.
2. License Renewal Challenges to Prohibited Newspaper-Broadcast Ownership Combinations
In 2006 and 2007, IPR filed multiple petitions to deny the license renewals of television stations that were in violation of the FCC rule against newspaper-broadcast cross-ownership.
The newspaper-broadcast cross-ownership rule prohibits one company from owning a television or radio station and the local newspaper serving the same market. The policy seeks to ensure that people in every community receive local news from sources owned by diverse owners. It aims to ensure that no media owner disproportionately controls the flow of local ideas. Under this rule, when the licensee of a broadcast station purchases a daily newspaper in the same community, it must divest either the station or the newspaper before its license comes up for renewal.
The Tribune Company, which holds television station licenses in Los Angeles, Hartford, and New York City, acquired daily newspapers in each of these communities. Instead of coming into compliance by the time its license renewal applications were due, Tribune asked the FCC to waive the rule and renew its licenses. On behalf of non-profit organizations with members in these communities, IPR opposed the grant of a waiver and the license renewal on the ground that Tribune had failed to meet the burden of demonstrating that the purpose of the rule – promoting local viewpoint diversity and competition – would be better served by waiving than applying the rule. In each case, Tribune overstated the amount of diversity analysis by including sources that did not provide local news and by including sources far from the relevant geographic area. Furthermore, Tribune failed to demonstrate any concrete public interest benefits that could outweigh the harms to diversity from its cross-ownership.
While these license renewals were still pending, Tribune sought to transfer control of the entire company to billionaire Sam Zell. Although under the FCC rules, the joint transfer of a commonly owned daily newspaper and broadcast station is prohibited, Tribune again asked the FCC for a waiver. IPR assisted co-counsel Media Access Project in filing a petition to deny the Tribune’s application to transfer its licenses.
In spring 2007, IPR also filed a license renewal challenge on behalf of the Office of Communication of the United Church of Christ, Inc. (UCC) and Rainbow/PUSH Coalition against Fox Television’s two stations in New York, WWOR-TV and WNYW. In 2000, IPR had filed a challenge against Fox’s acquisition of WWOR-TV, because the acquisition violated the newspaper broadcast cross-ownership rules, as Fox already controlled the New York Post. The FCC approved the transfer subject to the condition that that Fox sell either the station or the Post within two years. However, Fox did not comply with this condition and the FCC did nothing to enforce it. Eventually, in 2006, the Commission granted Fox yet two year waiver, which IPR asked the Commission to reconsider. Since the FCC had not acted on this petition by the time Fox’s New York licenses came up for renewal, IPR filed a petition to deny renewal of the licenses. The petition to deny urged the FCC to act on the pending Petition for Reconsideration, to rescind Fox’s temporary waiver, and to deny renewal outright. Alternatively, it urged the FCC to designate the renewal applications for a hearing as required by Section 309 of the Communications Act because Fox committed serious violations of FCC rules and renewal would not serve the public interest. Both the petition for reconsideration of the waiver and petition to deny renewal remain pending.
3. FCC Freedom of Information Act Request for FCC Studies on Media Ownership and Localism
In August 2006, IPR filed a Freedom of Information Act Request (FOIA) for all studies and drafts of studies, reports, and contracts for data or research relating to the FCC’s localism and media ownership proceedings. In response the FCC released thousands of pages of documents, including staff memoranda, research, and government contracts. Many of the studies revealed through IPR’s request had been previously unreleased by the Commission. Additionally, during a senate reconfirmation hearing for the FCC Chairman, it was suggested that studies covered by IPR’s FOIA request may have been intentionally suppressed.
Though the FCC released a sizable amount of material, it withheld an additional 1400 pages of responsive documents, claiming various FOIA exemptions. IPR determined that the FCC had offered insufficient explanations for why it was withholding certain documents, and in some cases had misapplied the FOIA exemptions altogether. In February 2007, IPR students and staff filed an administrative appeal of the FCC’s FOIA decision, requesting that the FCC release the remaining documents or clarify why it was entitled to continue to withhold materials responsive to IPR’s FOIA request. The FCC has yet to formally respond to IPR’s appeal.
