Loyola University Chicago School of Law, JD 2024
The Federal Communications Commission (FCC) recently hit Nexstar Media Group, Sinclair Broadcast Group and nineteen other broadcast licensees with a combined
$3.4 million fine for repeatedly airing children’s Hot Wheels commercials during a Hot Wheels-themed show created for children. The FCC was authorized to impose these fines through the Children’s Television Act of 1990 which was amended in July of 2019 to provide broadcasters with greater programming requirements.
Broadcasters, cable operators, and satellite providers are all supposed to comply with the Act. However, the oversight process requires only that such entitles report their compliance with the Act to the FCC annually. This presents issues with ensuring that compliance is regularly monitored and that violations are caught before the statute of limitations for fining non-compliant entities is reached.
For example, the aforementioned combined 3.4 million dollar fine was imposed two years after the violation occurred. These delays clearly show that the FCC needs to implement a more effective oversight process in order to identify noncompliance earlier, before the statute of limitations runs.
The Children’s Television Act of 1990 and new rules
The Children’s Television Act of 1990 requires the FCC to make sure that when reviewing television license renewals, they evaluate the extent to which the license has served the educational and informational needs of children and limit the number of minutes that commercial broadcast licensees may air commercials during children’s programming. Per the Act, the duration of advertising in children’s programming shall not be more than 10.5 minutes per hour on weekends and not more than 12 minutes per hour on weekdays.
Additionally, if an ad contains a product that is linked to the show airing on a station at any given moment, the FCC treats the entire program as one big commercial. Congress was originally concerned about this because young children often have a hard time distinguishing between commercials and programs. Due to this concern, the FCC didn’t want the children to be more confused by having a show that interweaves program and commercial matter together.
In 2018, the Commission adopted new rules to modify outdated requirements and to provide broadcasters greater flexibility to meet children’s television programming requirements. These rules took effect on January 21, 2020. Under the new rules, TV stations are required to air at least 156 hours annually of core programming. They also require the broadcaster’s report to be filed on an annual basis instead of the previous rule which required filing on a quarterly basis. For example, the Children’s Television Programing Report covering programming in calendar year 2021 would be due on January 30, 2022.
The broadcaster’s noncompliance
In June 2020, several broadcasters included in the 3.4 million dollar fine told the FCC in their license renewal applications that they accidentally aired ads for Hot Wheels Super Ultimate Garage during eight half-hour episodes of “Team Hot Wheels”, a show for children about the toy cars. The broadcasters said the commercial was pulled once this violation was discovered and is no longer airing on any of the stations.
Since this commercial aired on several episodes of “Team Hot Wheels”, the FCC could treat the entire “Team Hot Wheels” show as one big commercial for Hot Wheels. Due to the amount of times the commercial aired, children were subject to commercial matters greatly in excess of the limits imposed by Congress. The circumstances here were egregious because the commercial centered around a product directly related to the show and was aired by an experienced television licensee. For over a month, no employee noticed that the Hot Wheels commercials were airing during a Hot Wheels program.
Sinclair Broadcasting should have been aware of its noncompliance because they have been broadcasting for five decades. Numerous broadcasters included in this fine indicated in their renewal applications and commercial limit certification filings that their overages were inadvertent, but the FCC has determined that this does not mitigate or excuse the violation. The FCC said that the stations repeatedly violated rules for limiting commercial matters in children’s programming.
The FCC needs a more effective system
Sinclair disclosed this violation when it applied for a renewal of their license two years ago to the FCC. Yet, the FCC has only now decided to propose fines on both them and the other broadcasters involved. This issue might not have even been caught by the FCC if Sinclair hadn’t reported it. The FCC needs to implement a strategy for overseeing compliance with the Act to make sure this textbook violation of the rules that have been in place for more than 30 years does not continue to happen.
Right now, the FCC relies on the broadcasters, cable operators and satellite providers to file annual reports with the FCC identifying the station’s core programs and other efforts to comply with their educational programming obligations. The FCC does make these reports available for the public to view. FCC reliance on the broadcasters to self-report when they renew their license has resulted in about 7,000 violations.
However, without effective oversight, the FCC cannot ensure that the broadcasters, cable operators, and satellite providers are complying with the Act. These violations could have been limited if caught before they had to renew their license. Since children are uniquely impressionable and vulnerable, the FCC should focus on making sure these rules are followed instead of relying on the broadcasters automatically following the rules.
The FCC should implement a random compliance check outside of these reports. The IRS has a compliance check where it contacts the customer to verify that they comply with employment tax law and filing requirements. This check is usually accomplished in one or two conversations with the taxpayer. The FCC should also implement a random compliance check outside of these reports. Like the IRS system, this won’t be an investigation, just a random check to make sure they comply with the rules. The FCC should also require the broadcasters to submit a report twice a year, so the FCC can catch the violations sooner and limit the amount of them. Only then can we be sure that children are protected as the Act intends.