Yesterday the Federal Communications Commission issued a Report in the pending proceeding on Violent Television Programming and its Impact on Children, MB Docket No. 04-261, FCC 07-50 (rel. April 24, 2005) (“Report”). The Report concludes and recommends that:
- research provides strong evidence that exposure to violence in the media can increase aggressive behavior in children in the short term;
- while viewer-initiated blocking and mandatory ratings would be less burdensome, they are not likely to result in adequate supervision and protection of children;
- the V-chip’s efficacy is limited and cable operator-provided parental controls do not appear to be sufficiently available to be an effective solution;
- the industry could commit to reduce violent programming viewed by children by adopting a “family hour” at the start of prime time or allowing subscribers to purchase channels à la carte or in smaller family tiers;
- Congress could develop a definition of excessively violent programming that would survive constitutional review by being narrowly tailored and avoiding vagueness problems, and use it as a basis for viewer-initiated blocking of violent programming or mandating some other form of consumer choice so subscribers could avoid receiving or paying for channels they do not wish to receive.
The conclusions in the Commission’s Report are purportedly based on “strong evidence that exposure to violence in the media can increase aggressive behavior in children, at least in the short term.” The Commission believes that the impact of violent content on minors could provide a compelling government interest needed to support regulation, which could survive constitutional review, because “if properly defined, excessively violent programming, like indecent programming, occupies a relatively low position in the hierarchy of First Amendment values because it is of ‘slight social value.’” However, defining “violent” or “excessively violent programming” is problematic, and “any definition would have to be sufficiently clear to provide fair notice to regulated entities” and deal with the fact that “[a] number of definitional attempts in the past have been unable to overcome [the] hurdle … [of being] held void for vagueness” under the First Amendment.
The Report does note that viewer-initiated blocking and mandatory ratings would be a less restrictive means of addressing the issue, but the Commission doubts their likely efficacy, and suggests à la carte offerings also would be less restrictive. The Commission then rejects viewer-initiated blocking and ratings as workable because “[e]xperience also leads us to question whether such a ratings system would ever be sufficiently accurate given the myriad of practical difficulties that would accompany any comprehensive effort to ensure … accuracy,” which is of course in large part a function of the definitional problem that regulating “violent” programming poses. The Report also suggests straight à la carte or “opt in” approaches would be feasible and cost-effective based on Hong Kong’s experience with such a regime, and that discounted service “packs” with limited channels would be feasible based on the Canadian model.
Although all five Commissioners supported the Report to one degree or another, each issued separate statements. Chairman Kevin J. Martin used his statement to amplify and echo its major points, with special emphasis on the recognition of à la carte, family hour and family tiering as possible remedies. Commissioner Michael J. Copps, in stating “the question is not whether we should address the issue, but how,” claimed “it seems close to indisputable” there are “negative outgrowths” from the “spreading virus of broadcast violence” notwithstanding the Report’s finding that the evidence is mixed. Commissioner Deborah Taylor Tate focused on what she believes is the failure of voluntary industry efforts and the current ratings/V-chip system, and noted that parents must be responsible not only for what is seen in their homes but also for informing media outlets (and Congress) about what shows are inappropriate.
Commissioners McDowell and Adelstein were somewhat more skeptical. Commissioner Roger M. McDowell called parents the “first and last line of defense” and cited the extent to which not only the V-chip and parental controls are available, but also that DVDs, DVRs and online offerings give parents more control than ever. Commissioner Jonathan S. Adelstein, though supporting its adoption, issued the only statement openly critical of the Report, which he called “not a model of clarity.” He faulted the Report for the “casual, dismissive manner” in which it addressed the difficult definitional problems and judicial “skepticism” and invalidation of violent content regulations, and elaborated on the many tools parents have at their disposal today and the extent to which the FCC should consider publicizing, modifying or enhancing the current V-chip/ratings system before dismissing it as a failure.