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A 'Pay or Play' Experiment to Improve Children's Educational Television

77 Pages Posted: 31 Aug 2009  

Lili Levi

University of Miami - School of Law

Date Written: August 31, 2009


This Article addresses both the constitutionality and the efficacy of the FCC’s current rules that require broadcasters to air children’s educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised. Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable - attributable to broadcaster incentives, limits on the FCC’s enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a 'pay or play' approach that allows broadcasters to pay a fee to a fund for high-quality public television children’s programming, or to air such programming themselves, or to choose a combination of the two. The Article details some specific suggestions designed to limit both broadcaster game-playing and FCC content-intrusiveness under such a scheme. Ultimately, however, it calls for a ventilation of 'pay or play' models in a public rulemaking proceeding. Such an inquiry might well result in a negotiated compromise. In time, its efficacy could be assessed by comparing the resulting programming to what was aired under the more traditional regulatory approach of the past decade.

Suggested Citation

Levi, Lili, A 'Pay or Play' Experiment to Improve Children's Educational Television (August 31, 2009). University of Miami Legal Studies Research Paper No. 2009-23. Available at SSRN: or

Lili Levi (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

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