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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.
Copyright © 2007, Davis Wright Tremaine LLP.
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