How FCC Decides Case on Kids Cartoon Will Set Precedent, Both Sides Agree

The FCC will set a precedent however it decides a complaint that a new cartoon on a Viacom channel violates children’s media rules because it’s based on characters used elsewhere to advertise athletic shoes, supporters and critics of the show agreed in interviews and recent filings. Those seeking commission approval of a petition for declaratory ruling on the show Zevo-3, which began airing Oct. 11 on the Nicktoons channel, believe that granting the request (CD Oct 26 p5) would prevent any further shows from being based entirely on characters that sell goods in other media venues. Opponents of the petition said its approval would not only stop future shows but also limit current ones.

The NCTA and MPAA on Monday sided with ad groups in asking the commission to deny the petition by the Campaign for a Commercial-Free Childhood. The petition is thought to be one of the front-burner kids-media issues at the commission, though it’s unclear how it will act on the request. The CCFC and supporters including Free Press said it’s a good sign for their side that the FCC sought comment on the petition in September, about a week after the request was made.

"Everybody believes that whichever way the FCC jumps on this issue, it will be very significant,” said Executive Vice President Dan Jaffe of the Association of National Advertisers, which filed reply comments with the American Advertising Federation and American Association of Advertising Agencies in docket 10-190. The MPAA also signed on to the filing. “If you change policy, it would turn the FCC into a censorship board,” Jaffe said: “The supporters of the petition want the FCC to do a 180-degree reversal” in policy, as some backers of the request acknowledge.

Granting the petition would require “a new policy of general application that abandons the balanced approach the Commission historically applied to programs like Zevo-3,” said the three ad groups and MPAA. Comments from MTV Networks, the Viacom unit which runs Nicktoons, and Skechers, whose characters appear in the show, “vividly demonstrate the types and breadth of programs that would be rendered unlawful in one fell swoop by granting CCFC’s Petition,” the four groups said. That would include any TV show with popular characters such as G.I. Joe, Batman and Pokemon, they said.

That’s not what the CCFC seeks, said Associate Director Josh Golin. “We're really focused on one particular show and its unique circumstances. I think the FCC could very clearly rule on Zevo-3 without affecting the other shows.” The group’s replies said opponents are wrong to contend that program isn’t different from many other kids shows with characters featured in toys. “The difference is that Zevo-3 revolves around three spokescharacters that have had no purpose other than to promote Skechers shows.” MTV said the record before the commission demonstrates that the cartoon doesn’t violate “either the spirit or the letter” of its children’s programming rules. Replies from the NCTA, which like MPAA hadn’t previously filed in the docket, said a finding against the show would present “a real danger of both rendering a substantial amount of current children’s television programming unlawful and limiting future programming options for children."

Not approving the petition “does set a precedent and says all bets are off on children’s television,” on a “threshold that had not been crossed until now,” Golin said. “It opens the door for a whole slew of programming that we haven’t seen before.” The FCC hasn’t had “that many adjudications on kids’ programming issues in a long time,” noted Policy Director Corie Wright of Free Press, which had supported the CCFC. “The fact that advertisers see value in creating shows based on characters that before had only been known as commercial trademarks shows they see a value and this is a marketing strategy to kids,” she said. “If this can be used as a way to circumvent those principles and policies, then I think we've got real problems on the horizon.”