Times Staff Writer

Activists for better children's TV programming are now looking to Congress as their best hope after losing a long struggle with the Federal Communications Commission this week.

Peggy Charren, head of Action for Children's Television, said in the wake of a federal court ruling Tuesday that she still hoped there would be a "marketplace" in Congress to deal with specific issues related to children and television.

The U.S. Court of Appeals rejection here of ACT's petition seeking FCC reconsideration of a December, 1983, decision is the final chapter in more than a decade of controversy over the agency's role in children's television. The ruling virtually freed broadcasters from all but the most general guidelines in serving children.

"I suppose this is the end of the FCC's children's rule-making," Charren said with a sigh. She added that ACT will not appeal the court's decision. "I don't think this will make a Supreme Court case," she said.

ACT had complained that the FCC acted "arbitrarily and capriciously" in concluding that there was "no market failure" in commercial television programming for children.

Moreover, the group argued that the FCC's initial 1974 policy statement on children's programming required broadcasters to make a meaningful effort to improve the scheduling of TV shows for children at times other than weekend mornings. (In 1980 the FCC issued a new proposal to reconsider the policy statement, and the 1983 decision was the final result.)

The panel of three appeals court judges rejected ACT's petition on Tuesday by concluding that the FCC's 1983 decision "was within the broad scope of its discretion and was adequately explained."

At the same time, the court noted that broadcast licensees still have obligations under the FCC order to meet the needs of children in their overall programming.

"Broadcasters faced with renewal challenges based on the adequacy of their children's programming can be called upon to explain why they chose to focus on the needs and interests of certain age groups or other segments of the child audience," the court said.

"We may have lost the ball game and won the pennant," Charren said, referring to the judges' statements reiterating broadcasters' obligations.

Charren said she would now turn her attention to urging Congress to address itself to children's television programming, especially the increasing use of what she calls "program-length commercials" aimed at children.

In its 1983 ruling, the FCC said that setting quotas for the amount of children's TV programs aired each week on commercial TV was "undesirable" because of the increased amount of overall programming available to children through new video outlets, such as cable television and pay TV.

ACT had challenged the FCC's inclusion of cable and pay TV, saying that those outlets were not universally available to children.

While cable is not available in all areas, the court said, "it has a sufficiently broad and increasing presence." The court noted that this does not mean that "the broadcaster in any community can disregard the needs of those not served by cable."

The judges also said that while they saw no need for the FCC "to blind itself to the contribution of non-commercial broadcasting," this did not mean that the FCC had to place special requirements on commercial broadcasters.

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