Disney, Viacom Fight With FCC Over Kids TV Moves to Cincinnati Court
A fight against pending FCC limits on kid commercials was moved to the U.S. Appeals Court, Cincinnati, by D.C. judges. Parties to the lawsuit said it’s shaping up as a battle over regulation of Web addresses on children’s TV shows. The decision by the U.S. Appeals Court, D.C., to transfer Viacom v. FCC also denied Viacom’s bid to fend off rules set to take effect Jan. 1. While the new venue could still issue a stay of new rules stemming from the Children’s TV Act of 1990, broadcasters, including Viacom and Disney, are likely to try to return the case to D.C., participants in the case told us. Officials from the companies declined to comment on prospects for such a motion.
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“Stays are not common, because you have to make a pretty good showing,” said Andrew Schwartzman, exec. dir., Media Access Project (MAP). Still, “there is plenty of time for the 6th Circuit to act,” he said. MAP is representing the United Church of Christ, which wants stiffer rules against interactive ads on kids programs. The church filed the first case on the matter in Cincinnati, before Viacom filed in D.C.
A critical aspect of the case is limits on showing Web addresses on children’s shows, said a person familiar with the situation who asked not to be identified. The new FCC rules count the display of such addresses toward time limits on advertising during children’s programming, the Commission said in a filing with the D.C. court. “Your industry players, or some of them, may suggest that you are going to limit what your websites are” if the rules take effect, said UCC’s Gloria Tristani, a former FCC comr. “We're limiting what you can advertise on TV about your website, and those are different things.” Links to sites with substantial noncommercial content are among those that would be exempt from time limits. Currently, broadcasters must air 3 hours of educational programs for kids each week. The new rules, which would extend that mandate to broadcasters’ digital streams, run “afoul of the First Amendment,” Disney has said (CD Oct 13 p3). Officials at Disney, owner of ABC, and Viacom’s CBS declined to comment on whether they'll also raise First Amendment issues about limits on some commercially oriented Web links.
Disney has argued the rules would limit consumer access to other programs and online information that could be of public interest. Interest by media companies in online content has surged recently, as Internet ad spending is growing at a time of sluggish broadcast ad revenue. At ABC, CBS and NBC, combined ad sales fell 22% last quarter (CD Nov 17 p11). Broadcasters said they're confident they'll prevail - wherever the case is ultimately heard. “The decision by the D.C. court transferring the case to the 6th Circuit has nothing to do with the merits of our challenge” to the rules, an ABC spokeswoman said. “We are confident that whichever court considers the case on the merits will rule in our favor.” CBS agreed: “We remain confident that when we get our day in court, we will prevail.” “This will permit us to continue providing the highest quality children’s educational and informational programming to younger audiences,” without having to cancel other shows that preempt youth programming, said a CBS spokesman. Such shows could be preempted no more than 10% of the time, the FCC has said.
Some said the curbs don’t violate freedom of speech. “There are First Amendment questions here, but I don’t think there is any violation of the First Amendment rights of anybody,” said Georgetown U. Prof. Angela Campbell, also helping represent UCC. “The Web address is considered an ad, and therefore as a time limitation… That’s no different than what we have now.” Another law professor not involved in the case concurred. Broadcasters “think everything violates the First Amendment - it is advertising, isn’t it?” asked George Washington U. Law School’s Jerome Barron. “I don’t see it as a First Amendment issue, but I'm sure their lawyers will.”