Section 308.3(d)(1) of the Rule states that "the provider of pay-per-call services shall not direct advertisements for such pay-per-call services to children under the age of 12, unless this service is a bona fide educational service."

On April 22 and 23, 1993 the FTC held a Public Workshop-Conference to hear comments on the proposed legislation. CARU's Director participated in the Workshop to express CARU's objections to the Rule as it applies to children's advertising. What follows is a discussion of CARU's role in regulating 900-number advertising to children, the issues raised by the Rule, and its implications for the children's advertising industry.

CARU's involvement in this area grew out of concern with the proliferation in the late eighties of 900-number teleprograms advertised to children. In 1988 CARU's Advisors, working with other members of the cable and broadcast industries and teleprogram providers and producers, developed a working set of voluntary guidelines to provide direction for the industry in the same manner as CARU's general Self-Regulatory Guidelines had done since 1974. The "Guidelines for the Advertising of 900/976 Teleprograms to Children" were first published in 1989.

At the time our guidelines were promulgated, there were numerous character driven teleprograms advertised to children featuring characters from children's programs and movies, and sports and rock stars. At holiday time the numbers multiplied, with teleprograms featuring the Easter Bunny, Santa Claus, and talking pumpkins, among others.

In 1991 CARU initiated two cases against advertising for children's teleprograms. In both the "RoboCop Phone 2" case [NAD Case Reports, June 17, 1991] and the "T2 Telephone Sweepstakes" case [NAD Case Reports, October 21, 1991] the teleprograms contained cross-promotions and the advertising contained exhortative language and failed to make disclosures, in violation of both CARU's general guidelines and 900-number guidelines. Since that time, through a process of educating the industry in the applicable self-regulatory standards, and through the industry's responsiveness to self-regulation, television advertising for children's teleprograms has virtually disappeared, and print advertising for these programs has been limited to publications geared to children over the age of twelve. Over the most recent Christmas and Easter seasons CARU, which monitors roughly 1,200 television commercials each month, saw not one such teleprogram advertised during children's programming.

Given the demonstrated success of self-regulation in this area of advertising, the proposed legislation as it relates to children's advertising is not only unnecessary but also counterproductive. Taking into consideration the complexity of the areas of children's cognitive development and understanding, and the technology of the 90's, any attempt to label, define and legislate such terms as "children's programming", "educational", "service", and "program" can only lead to confusion and allow advertising to squeeze through semantic loopholes contrary to the intent of the Act. CARU's 900-number guidelines, which have been supported and endorsed by all the major participants in the broadcast, cable and advertising industries, have effectively addressed the legitimate concerns surrounding this advertising without resort to overly narrow and restrictive definitions either of children's programming or of the content of acceptable teleprograms.

Quite apart from any Constitutional questions raised by the proposed legislation, there are specific problems with the legislation as written. Section 308.3(d)ii identifies "children's programming as defined by the Federal Communications Commission, animated programs, and after-school specials" as those programs from which most pay-per-call service advertising would be banned. The FCC has defined children's programming as "programs originally produced and broadcast for an audience of children 12 years old and under" [56 FR 19611] and specifically excluded "programs which were originally produced for a general audience that might nonetheless be significantly viewed by children."

Broadcasters and cablecasters alike have long defined their children's programming by day-part, designating weekdays from 6:30 to 9:00 am and 2:00 to 5:00 pm, and some weekend morning programming as "kids' time". This definition no longer holds however. NBC has entirely withdrawn from children's programming; all three major networks devote these weekday day-parts to soft news shows, soap operas and talk shows such as "Phil Donohue", "Oprah Winfrey" and "Maury Povitch". The advent of cable stations totally targeted to children, and a 24-hour cartoon cable network make defining children's programming by day-part meaningless.

The FTC's attempt to define children's programming by form or content is not only inconsistent with established practice, but just as problematic. Animated programs such as "X-Men" and "Batman". originally aired during children's viewing time, are moved to family viewing time. In today's market animation is no longer exclusively a children's medium (i.e. "The Simpsons", "Cool World" and "Bebe's Kids"). Syndicated re-runs of old family viewing programming like "Dennis the Menace" and "Lassie" are showing up during designated children's time on cable and independent stations, while others like "Full House" and "Charles in Charge" are airing during fringe time. Compounding the confusion, animated programs such as "The Jetsons" and "The Flintstones`", "programs originally produced and broadcast for an audience of children 12 years old and under, " can be seen at all hours on the 24-hour cartoon network. Under the FTC definition, an afterschool special produced and broadcast by one of the networks would be deemed children's programming, but that same program is bought by a cable and rebroadcast as a family feature at 8:00 pm.

Section 308.3(d)(1) of the Rule states, "The provider of pay-per-call services shall not direct advertisements for such pay-per-call services to children under the age of 12, unless the service is a bona fide educational service". Section 308.2(a) defines "bona fide educational service" as "any pay-per-call service that provides information or instruction relating to education, subjects of academic study, or other related areas of school study". The term "bona fide educational service" raises several dilemmas for the FTC, the industry and the public, and any attempt to regulate pay-per-call service advertising by content is inappropriate and self-defeating. The term "service" is ill-defined. As used by the FTC, is it restricted to those 900-number calls which provide information in a conversational format to the caller, or does it include other formats such as interactive programs or games?

As written, the definition is ambiguous and may well be interpreted to allow any pay-per-call service or program in which a child caller merely has to use numbers or letters on a key pad to log in his or her response to contest questions arguably without educational merit. To address this issue, the FTC has suggested narrowing the definition to require that the party offering the service be a "bona fide educational organization having a legitimate connection to education." Such a narrowing of the definition will result in the exclusion of truly useful and educational services and programs: a "multiplication rap" for instance, or a geography quiz game not offered by the United Federation of Teachers, the National Parent-Teacher Association, or other organization recognized as having a legitimate connection to education.

In fact, the FTC's efforts to broaden, narrow or refine the definition of appropriate content for pay-per-call services advertised to children are unnecessary. CARU's 900-number guidelines, which regulate the form that such advertising can take, afford the scope and flexibility to allow us to examine each such advertisement on a case-by-case basis, and have virtually eliminated this advertising from the children's market.