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During the 1970s, the FCC closely examined the commercial content of children's television programming. However, in the 1980s, it declined to adopt any specific advertising or programming standards to replace those of the abandoned National Association of Broadcasters' code. The result, according to critics, was "program-length commercials," advertising for toys and other children's products contained in children's programs.

The Children's Television Act of 1990 directed the FCC to address this problem, but the agency failed to respond to the concern of Congress that children's television had become the "video equivalent of a Toys-R-Us catalog." It rejected proposals submitted during the rule-making proceeding because, it said, they raised First Amendment issues or threatened the existence of excellent children's shows like Sesame Street.

The FCC's approach pleased toy makers and broadcasters, but displeased groups such as Action for Children's Television and the National Association for Better Broadcasting. Other groups, such as the Children's Television Workshop and the Donald McGannon Communication Research Center, unsuccessfully proposed limited rules that addressed only the placement of spot advertisements, but not the commercial nature of the program itself.

A better approach to regulating program-length commercials would be to give broadcasters full discretion in the first instance to air what they feel will entertain and serve their audiences. At the second stage - renewal - the FCC could evaluate the licensee's overall handling of commerciality in its children's programs, taking into account factors such as the program producer's intent, the placement and quantity of spot advertisements, the use of barter or profit-sharing arrangements between advertisers and producers, and the nature of the programs aired. In evaluating programs, the FCC could rely on the opinions of experts who understand the needs of children and the television industry.

The FCC's oversight of commercialization in children's television through license renewal review would meet the Supreme Court's tests for restricting commercial and broadcast speech under the First Amendment. It would constitute a reasonable and narrowly tailored means of advancing the government's interest and would help solve the problem of program-length commercials in children's television programs.

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Hastings Communications and Entertainment Law Journal





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