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FCC Issues Report on Violent Television Programming
and its Impact on Children
By John
D. Seiver and Ronald
G. London
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.
If you have any questions regarding this
advisory bulletin please contact:
This
advisory is a publication of the Communications Group of Davis Wright
Tremaine LLP. Our purpose in publishing this advisory is to inform
our clients and friends of recent developments in the communications
industry. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may be given only in
response to inquiries regarding particular situations. Attorney
Advertising. Prior results do not guarantee a similar outcome. Thank
you.
Copyright
© 2007, Davis Wright Tremaine LLP.
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