Although the CTA represents Congress's most serious and substantial effort to promote public service by commercial stations, its implementation has proven difficult.46 Thus, after examining renewal applications then on file, the FCC noted the following in its Notice of Inquiry issued on March 2, 1993:47
Attributing these problems mainly to broadcasters' uncertainty about the scope of their CTA obligations, the FCC has sought to dispel that uncertainty, emphasizing that broadcasters must rely primarily on standard-length programming specifically designed to educate and inform children. Moreover, it has raised the possibility of using a quantitative processing guideline in this area.
Although this praiseworthy effort may significantly promote better public service to children, the FCC cannot deal with this as it has dealt with the other CTA obligation, a specific limit on the number of commercials in children's programming (where, the FCC reported, broadcaster compliance is high). The FCC has tried to define core programming for children by citing education as the primary objective of such programming and entertainment as a secondary goal.49 As Disney and CTA proponents pointed out, however, programming for small children does contain a strong entertainment component, and trying to separate the two is neither possible nor appropriate. Another troublesome issue was the FCC's own uncertainty about whether the processing guideline should be affected by the quality of the standard-length programming or by the carriage of family or children's entertainment programming that bears a "secondary educational, ethical or informational message."50
In the ensuing FCC proceeding, the Children's Television Workshop (CTW) suggested a process-oriented definition of core programming (specifically designed to educate). Such programming would be developed with the assistance of independent educational advisers to fulfill explicit, written, educational goals, and it would be evaluated independently for effectiveness. Under this scheme, according to CTW, the FCC would not be focusing on content, but instead on the process or processes of genuine educational value. Significantly, the CTW proposal closely follows the process employed by the noncommercial educational world to produce high quality children's programming.51 However, whether the government can or should mandate the use of independent education advisers is questionable.
As reflected in the comments submitted during the proceeding, commercial broadcasters are highly motivated to present inexpensive programming that yields adequate advertising revenues, that is, entertainment fare (cartoons), with a related emphasis on toy promotion.52In 1974 the FCC correctly surmised that ultimately, public service to children would depend on broadcasters' putting profits in second place and children in first.53 However, in a fiercely competitive environment, only effective regulation can temper that drive for profit. Many broadcasters, tempted to try getting by, have tipped the scale toward a minimum of programming specifically designed to educate, toward entertainment with some pro-social theme, toward scheduling that interferes least with profits, and toward reliance on general audience and short-segment programming needed for renewal. The would-be regulators encounter mushy showings that vary with each licensee. Furthermore, a glaring obstacle remains: although parents are extremely interested in the quality of children's educational programs, regulation cannot address this crucial issue effectively.
The impermanence of any behavioral scheme, regardless of merit, is another problem. Some FCC chairmen have been keenly interested in promoting public service to children (for example, Chairmen Newton N. Minow, E. William Henry, and Dean Burch); others, believing that such interests conflict with editorial autonomy, have gutted licensee's obligations.54 Although Chairman Hundt may try to establish a new compact on public service for children, he cannot be assured that it will survive his tenure.55
There is an obvious solution to this flawed behavioral approach, and the CTA actually points to it with its provision that a licensee's efforts to facilitate presentation of appropriate programming over another station should count toward fulfilling its obligation. The CTA does not specify that the other station or system must be noncommercial. It has been urged that a play or pay scheme could therefore be implemented with commercial stations choosing to pay rather than to meet the CTA's programming requirements. Experience has amply demonstrated, however, that commercial stations are motivated to obtain as large audiences as possible, and would still tend to emphasize entertainment with some pro-social rather than cognitive themes. Most important, the objective is to obtain high-quality programming. The noncommercial system has demonstrated that it will strive to do that, even though producing such programming is expensive. The commercial system has no such history or incentive. The government cannot review for quality, but a way to promote this important aspect of programming must be found. Finally, play or pay is inherently flawed in light of its voluntary nature. If the amount of payment is substantial (as it must be to make the scheme effective), the commercial station will almost always play, with all the regulatory flaws discussed previously.
There is an obvious structural alternative that has none of the above flaws. Suppose the commercial system was required to contribute 1 percent ($250 million) of its gross revenues to noncommercial television for producing and presenting educational and informational children's programming. The Corporation for Public Broadcasting (CPB) could then fund production of such programming by a Public Broadcasting Service (PBS) station or an independent producer like the CTW for nationwide distribution, or for the Ready to Learn Channel.56 The funds might also be directed to local noncommercial stations working with community groups to activate the educational channel on the local cable system, with some of the programs so produced broadcast or shared with the local library system to become an electronic educational clearinghouse.
How the funds so obtained might be used is a matter best left to the educational community. This paper urges that we move to a structure that truly will implement the intent of Congress as expressed in the CTA. Doing so would remove First Amendment strains of behavioral regulation, and the commercial operator would be free to present whatever programming it chose with whatever scheduling it found desirable.57