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Junk Food Report Due in Congress

By John Eggerton

A government industry task force on food marketing to children is likely to tell Congress that the nation's largest food companies have started to self-regulate with new programs, in a report that is expected Sept. 19th, according to people familiar with the matter.

The task force report, initially due in July, was pushed back to September in part to let some major food marketers weigh in with their individual plans on trimming the marketing fat, which many have pledged to do.

Those have included a dozen food companies, among them Kelloggs, Coke, Kraft, General Mills, and most recently, Burger King, as well as media outlets Discovery Kids, Nickelodeon and Cartoon Network. The actions they've already announced are expected to be a big part of the report: Set nutritional guidelines for the foods they will market to kids under 12 in shows targeted to children. Some have also agreed to limit or end host selling of snack or fatty foods by familiar TV characters, and encourage exercise and healthy diet both through programs in the community and story lines in shows.

Children's activists on the task force aren't likely to keep silent. “They're not likely to roll over and say the industry has done everything it could,” said a source famliar with the drafts of the report that have been circulating among interested parties.

In addition to Brownback, the task force includes FCC Chairman Kevin Martin, and Commissioners Michael Copps and Deborah Taylor Tate.

But the heavy lifting was done by food marketers, and media companies, and those activist groups trying to work together to battle the childhood obesity crisis and, in the case of industry representatives, avoid legislation or regulations restricting or banishing billions of dollars in TV advertising.

They are looking to avoid a crackdown like the one in Britain, where the government banned snack food ads in and around kids TV shows.

House Telecommunications & Internet Subcommittee Chairman Ed Markey, author of the Children's Television Act that limited ads in children's shows, has been using his bully pulpit as chairman to push food marketers and media companies to cut the fat, saying if they didn't, Washington would have to step in.

The FCC requires TV stations to air at least three hours of educational and informational programming per week, and Markey has told Martin he thinks it is within the FCC's authority to rule that junk food ads in such shows would disqualify them for meeting that requirement. “If a show is telling a kid to eat an apple and exercise, and then the ads promote junk food, it undermines the intent of the law,” he told B&C recently.

A concerned Martin said he was “excited about the task force's opportunity to formulate a plan of action,” but said last week that “if something isn't able to come out of that process, then I would take a look at what the commission could do directly under its current authority.”

Verizon Sues FCC

Verizon Communications filed suit in the D.C. court against the Federal Communications Commission over its rules for auctioning of spectrum being reclaimed from TV broadcasters in the switch to digital, calling those rules arbitrary and capricious.

The FCC voted six weeks ago to make a block of that 700-megahertz spectrum large enough for a new national wireless service subject to open access conditions. The auction has to begin by January 2008 by order of Congress.

Those open-access conditions would allow consumers to attach a variety of devices to any national wireless service employing the spectrum. That would represent a break from the model of Verizon and others that effectively bundle their service with a particular handset —think AT&T and iPhone.

In the filing with the D.C. U.S. Court of Appeals, Verizon said the FCC's decision was a violation of the Constitution and administrative procedures, arbitrary, capricious, “unsupported by substantial evidence” and, if that was not enough, otherwise contrary to law.

The suit does not take aim at all the rules, just the ones putting access conditions on the C block of spectrum.

The court is not expected to set the briefing schedule before next month.

A protracted lawsuit could throw a monkeywrench into the timetable for the digital-TV transition, since money from that auction—estimated at $10 billion-$15 billion—is being used to fund the subsidy program for DTV-to-analog converter boxes so that analog-only sets can still receive an over-the-air picture after the digital transition. Some of the money is also being used to fund first-responder communications.

National Telecommunications & Information Administration chief John Kneuer, who has to oversee the converter-box program, has already started spending some of the money, which is to be deposited in the treasury by next June.

The FCC would not comment on pending litigation and Verizon would not comment on the filing. Free Press, which had pushed for the access conditions, had no such reluctance, calling the Verizon move an attempt to “use the courts to protect the status quo of control over America's wireless marketplace.”—John Eggerton

LIN TV in Retrans Fight in Conn.

A clash over retransmission consent between LIN TV and cable company MetroCast Cablevision might cause some 40,000 cable subscribers in eastern Connecticut to lose broadcast signals as of Oct. 7.

The parties have failed to negotiate a fee for MetroCast airing the signals for LIN stations WTNH New Haven, WCTX New Haven and WPRI Providence, R.I.

Said LIN executive vice president of digital media Gregory M. Schmidt in a statement, “We have successfully reached agreements with other multichannel providers including cable operators, telephone companies and satellite providers, all of which have acknowledged the value of LIN TV's stations, and hope we can reach an agreement with MetroCast soon.”

MetroCast spun it differently: General manager John Dee said LIN “has rejected multiple offers by MetroCast over the last nine months to continue carrying the stations on the MetroCast cable system for consideration that MetroCast firmly believes is fair and equitable and that is entirely consistent with MetroCast's offers accepted by other broadcasters in the marketplace.”

Dee said MetroCast would air New England Cable News in the missing channels' slots, along with other “alternative programming.”

LIN outlined its case on a dedicated Web site.

—By Michael Malone

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