$24 Million is enough to get anyone’s attention – and a fine in that amount should wake up all television broadcasters who have grown complacent about the FCC’s enforcement of its regulations requiring television stations to broadcast three hours of weekly educational and informational programming directed to children.  According to a report in the New York Times, the FCC is expected to announce that it has agreed to a settlement with Univision that would result in a payment of that amount as a way of resolving complaints against the network’s stations about whether a claimed educational program qualified as educational and informational programming directed to children.   The settlement agreeing to pay this fine will also clear the way for the grant of the application seeking approval of the pending sale of Univision.  According to the Times report, this fine is many time higher than the highest fine ever issued by the FCC – a $9 million fine against Quest.  Certainly it dwarfs any fine for violation of children’s television rules.  The highest fine that I can recall is one that was in excess of $200,000 for several hundred violations of the FCC rules limiting the amount of advertising permitted during programming directed to children.

While many complaints have been filed in the past against television stations alleging that programs claimed as educational and informational were not sufficiently serious to warrant that label, few stations have been fined for violations of the rule, at least partially because the FCC’s standards are ambiguous.  Programming need not be strictly educational to qualify, but instead must contribute to the educational and informational needs of children, "including the child’s intellectual/cognitive or social/emotional needs."  A child is defined as anyone age 16 and under.  As programming that meets the social and emotional needs of a child of 16 may be hard to differentiate from programming directed to adults, the lines are not easy to draw.

The Univision programming at issue involved a telenovella – in essence a Spanish soap opera – about 11 year old twin sisters separated at birth who find each other and swap identities.  According to the Times report, the FCC was not convinced that the complex plot with intertwined stories provided by this program could be followed by children.  I find this reasoning hard to believe as a parent of a teenager who has had no problem following the plot of Lost and similar television programs with complex intertwined subplots – most often explaining to me what is going on.  In fact, last year there was even a book, Everything Bad is Good For You,  which argued that the complex plots now common in television programs and video games helped develop children’s cognitive abilities.  Look here for a link to many of the discussions of this book.

The Commission also apparently looked to the fact that much of the commercial matter broadcast in the program was adult-directed, undercutting the claim that the children’s educational and informational was a "significant purpose" of the program, as required by the rules.

If the decision is in fact released as reported by the Times, it will mark another step in the government’s increasing role in regulating broadcast programmingIndecency has obviously been a major area of enforcement for the Commission.  We have also written about FCC consideration about regulating violent programming, and have also written about the establishment of a task force to look at programming contributing to obesity in children.  In its localism proceeding, the FCC is also looking at whether new requirements for the amount of nonentertainment programming should be adopted, and even whether specific amounts of local music should be required to be played on radio stations.

The case also represents another in a series of recent decisions about purported violations of FCC rules made through the settlement process.  In such cases, the FCC agrees to accept payment from a company for dismissal of the charges against the company, without any real finding of wrongdoing.  Often, such agreements allow sales or other regulatory actions to proceed.  For instance, we have written about the rumored agreement on payola complaints with companies including Clear Channel that have pending deals requiring FCC approval.  While these agreements are administratively efficient, they often give little guidance to others as to exactly what was and was not prohibited conduct by the licensee.  And they often exaggerate the significance of the violation, as in this case, as a company with a deal pending is more willing to agree to a huge penalty as a cost of completing its deal than is a company without such a pressing need for regulatory approval.  It’s hard to imagine any company agreeing to a $24 million fine in any other circumstances.