FCC Releases Report on Television Violence; Critics Challenge Conclusions and Recommendations on Various Grounds

Many critics have said the report lacks depth and is inconclusive; others have questioned the legislative feasibility and legality of its proposed solutions.

Former Chairman of the U.S. House of Representatives Committee on Energy and Commerce Joe Barton (R-Texas), requested the report on behalf of 39 members of the House of Representatives in March 2004. The FCC issued a notice of inquiry later in 2004, requesting input, research, and opinion on the issue.

According to the report, members of Congress asked that the FCC address several questions, including what the cumulative negative effects of violent programming on children are, what “constitutional limits” exist in regulating violent programming, whether regulations can be “narrowly tailored” to serve governmental interests, and whether the government could formulate and implement a definition of “excessively violent programming that is harmful to children” that would be constitutional.

The resulting 24-page report, titled “In the Matter of Violent Television Programming and its Impact on Children,” MB Docket No. 04-261, reviews research on the effects of violent programming on children as well as some of the government regulation and common law precedent of indecent and violent broadcast and cable content, and makes suggestions for how Congress might approach legislating violence on television. The full report is available at http://www.firstamendmentcenter.org/PDF/FCC_TV_violence_2007.pdf.

According to FCC Chairman Kevin Martin, in a comment released separately from the report on April 25, the report “concludes that exposure to violent programming can be harmful to children and that Congress could provide parents more tools to limit their children’s exposure to violent programming in a Constitutional way.”

The report begins with a summary of several decades of research into the effects of violent programming on children’s behavior. The FCC says that it agrees with a 2001 U.S. Surgeon General report that concludes that “a diverse body of research provides strong evidence that exposure to violence in the media can increase children’s aggressive behavior in the short term, [but] many questions remain regarding the short- and long-term effects of media violence, especially on violent behavior.”

The report also addresses the law and policy regulating violent television programming. It discusses Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), in which the U.S. Court of Appeals for the D.C. Circuit found that “channeling” indecent broadcast television content between the hours 10 p.m. and 6 a.m. would not unduly burden the First Amendment rights of broadcasters. The report suggests that such channeling could be similarly used to regulate excessively violent content.

The report says a scheme of “viewer-initiated blocking and mandatory ratings” is an alternative to time channeling that might “impose lesser burdens on protected speech;” however, it says research has shown that such a scheme already in place has not worked. In 1996, Congress amended Title III of the Communications Act, 47 U.S.C. section 303(x) to require that all televisions with screens larger than 13 inches purchased in the U.S. after the year 2000 must contain a “V-chip” which allows users to block programs they do not want to view. To facilitate the use of the V-chip and other blocking technology, broadcast, cable and satellite companies have voluntarily devised a ratings system that encodes each program, excluding news and sports, with a rating based on the amount of violent or sexual content. According to the FCC report, research on the effectiveness of these measures has shown that many televisions in use in America still do not have V-chips, and even if they do, many parents do not use them. Other studies have found that the voluntary TV ratings system has been of limited effectiveness, because programs are rated inaccurately or because parents often do not understand what the ratings mean.

The report says that although developing a definition for “excessively violent programming that is harmful to children” would be challenging, “we believe that Congress could do so.” The report suggests that a more general definition would be required for a regulation that required channeling of violent content, but for a viewer-initiated, ratings-based blocking scheme, more specific definitions would need to be developed.

“We believe that developing an appropriate definition of excessively violent programming would be possible, but such language needs to be narrowly tailored and in conformance with judicial precedent,” the report said. Any definition, the report said, would have to “be sufficiently clear to provide fair notice to regulated entities.”

In its conclusion, the FCC says that research has shown that current technology and industry-imposed regulation is not effective in protecting children from violent programming. An alternative the FCC suggests for cable and satellite service providers is an “a la carte” regime, which would allow customers more choice over how to avoid violent programming they do not wish to receive. Such a regime, says the report, could give customers an “opt out” option, whereby cable and satellite companies would refund customers money for channels they chose to block, or an “opt-in” option, which would allow customers more specific choices as to which individual channels or “bundles” of channels they want to receive.

A number of commissioners released comments separate from the report on April 25. Despite a common agreement that violent television poses a risk to children and a challenge to parents, the report had its critics within the commission. FCC Commissioner Robert McDowell said that the report’s legal analysis, which focused only on the regulation and legal precedent of broadcast television, and not cable, may “fall short” of Congress’ request.

“Potential Congressional action against television violence based upon our Report should only be considered in the limited context of broadcasting, because the Commission has not offered sufficient legal analysis to support broader regulation,” McDowell wrote.

Commissioner Jonathan Adelstein offered more pointed criticism. Adelstein said the report did not fully support its conclusions.

“Like a financial consultant who advises a client that he could win the lottery, this report discusses an optimal conclusion, but does not provide a complete analysis or a sound plan,” Adelstein wrote.

Specifically, Adelstein criticized the report’s failure to formulate and recommend a specific definition for “excessively violent programming that is harmful to children” as they were asked to do, instead passing the task back to Congress, saying they “could do so.”

Adelstein also said the report provided an incomplete record with regard to court decisions that have “either expressed serious skepticism or invalidated efforts to regulate violent content” and in discussing the evolving technology which has allowed users to block programming.

Adelstein wrote the FCC’s recommended regime, a la carte, is “primarily a price-regulation mechanism,” and “far too blunt an instrument to provide much help to beleaguered parents who already have the ability to block any cable channel they want, whether they are analog or digital [cable] subscribers.”

Adelstein offered, for example, the History Channel, which he said provides valuable educational programming despite sometimes showing war scenes “far too violent for children.”

Robert Corn-Revere, a partner at Davis Wright Tremaine, LLP in Washington D.C., an expert in FCC regulation and the 2007 Silha lecturer, called the report “seriously deficient.” (See “Corn-Revere to Deliver 2007 Silha Lecture” on page 6 of this issue of the Silha Bulletin.)

In a commentary on the First Amendment Center Web site at http://www.firstamendmentcenter.org/commentary.aspx?id=18493, Corn-Revere said that the report failed to answer the fundamental questions posed by the 39 members of Congress in 2004.

The FCC’s 2004 notice of inquiry requested more definitive information and research on the effects of violent programming on children’s behavior. In spite of this, the report released April 25 concedes that very little new information was submitted since then.

According to Corn-Revere, however, “this did not prevent the FCC from converting the questions it raised in 2004 into conclusions in 2007. By failing to address this issue in a serious and truly responsive manner, the commission undermined any possible policy recommendations regarding which programs Congress should endeavor to restrict.”

Corn-Revere, like Adelstein, also noted the failure to approach a definition of “excessively violent programming that is harmful to children” in the FCC report. In fact, the report suggests that Congress may have to create a variety of definitions if it favors mandatory ratings systems. “It is difficult to imagine how Congress might find this aspect of the report helpful,” wrote Corn-Revere.

The report recommends that Congress’ definition of excessive violence should be “narrowly tailored and in conformance with judicial precedent,” said Corn-Revere, but it offers no discussion of the judicial precedent that might support or oppose regulation.

Corn-Revere cites opinions from the Tennessee Supreme Court, Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993) and from the Seventh Circuit U.S. Court of Appeals, American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, (7th Cir. 1985), which have voiced skepticism about the government’s ability to define or regulate violent media content in a way that would survive First Amendment scrutiny.

Corn-Revere said a report on “Marketing Violent Entertainment to Children” released by the Federal Trade Commission in April 2007, a few weeks before the FCC report, reviewed relevant precedents in media and violence.

“In that largely unnoticed report,” Corn-Revere wrote, “the FTC…found that courts have uniformly struck down efforts to ‘treat violence like obscenity’ or indecency and to impose either direct content regulations or mandatory ratings. Accordingly, the FTC concluded: ‘Given important First Amendment considerations, the Commission supports private sector initiatives by industry and individual companies.’”

Meanwhile, cable company executives have challenged the FCC’s support for a la carte billing programs.

According to a May 9 Associated Press (AP) story, executives speaking at The Cable Show, a yearly convention hosted by the National Cable & Telecommunications Association, said an a la carte scheme would be bad for the cable industry and bad for consumers.

According to the AP, Viacom Inc. chief executive Philippe Dauman said such a model would mean cable channels that are not economically viable would disappear when they can not be packaged with profitable channels.

“The unintended consequence is that it may drive [competing channels] to produce the edgier content that a la carte was supposedly intended to reduce,” Dauman said, according to the AP.

The AP story said Time Warner Inc. chief executive Richard Parsons said, “[w]hat’s being responsible is enabling adults to make adult choices and decisions about what their children see and tolerating choices that adults make for themselves.” The AP story said Parsons called those who favor government regulation of violence and indecency “vocal and well-funded minority groups.”

According to the AP, Dan Isett, director of corporate and government affairs for the Parents Television Council, a conservative non-profit group which supports regulation of indecency and violence on television, challenged the idea that a la carte programming would hurt competition in the cable market.

“Good programming at good prices will always find a market, just like any other good or service,” Isett said.

According to the AP, Isett said the real issue is what consumers are forced to pay for. “People are forced to subsidize the really graphic and explicit sex and violent content on ‘expanded basic’ just to get things like the Disney Channel and a football program on Saturday,” Isett said.

The U.S. Senate Committee on Commerce, Science and Transportation addressed the issue of media violence and children in a hearing on June 26, 2007. Testimony was presented by Tim Winter, president of the Parents Television Council; Dr. Dale Kunkel, professor of communication at the University of Arizona; Jeff McIntyre of the public policy office of the American Psychological Association; Laurence Tribe, a professor of Constitutional law at Harvard University; and Peter Liguori, Fox Entertainment’s chairman.

Winter’s written testimony supported the proposals for regulation outlined in the April 25 FCC report, and Kunkel and McIntyre both offered support for the report’s suggestion that research has shown that violent television programming leads to violent behavior in children.

According to Tribe’s 69-page written testimony, however, none of the regulatory schemes proposed in the FCC report -- channeling, mandatory ratings systems, or mandatory a la carte “unbundling” -- can be reconciled with the First Amendment, because all three would require the application of strict scrutiny, and none represents the least restrictive means of government regulation.

A video webcast of the hearing, along with downloadable copies of witnesses’ testimony, is available at the Senate Commerce Committee Web site at http://commerce.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=1879.

– Patrick File, Silha Fellow and Bulletin Editor