Short title

This Act may be cited as the

Family Choice Act of 2006

Findings

Congress finds the following: (1)Subscription television services have established a pervasive presence in the lives of Americans, including American children. Over 80 percent of American households subscribe to multi-channel video programming. Approximately 58.6 percent of all households subscribe to cable television service, and approximately 23 percent subscribe to direct broadcast satellite (in this section referred to as DBS) service. Of those subscribing to cable service, 88 percent subscribe to expanded basic service, while just 12 percent subscribe only to basic service. Fewer than half of American households subscribing to cable have digital cable service. (2)The substantial majority of American children have access to multi-channel video programming in their home. Approximately 74 percent of children from ages 2 through 18 live in homes with cable or DBS service, and 78 percent of children under the age of 7 live in homes with such service. Of those homes with children subscribing to cable service, the vast majority subscribe to expanded basic cable service. Approximately 20,900,000 households with children subscribe to expanded basic cable service, while just 2,900,000 households with children subscribe only to basic cable service. (3)American children, on average, spend a significant part of their day watching television, including cable programming. According to Nielsen Media Research, children ages 2 through 11 watch an average of 3 hours and 15 minutes of television per day, and children ages 12 through 17 watch an average of 3 hours, 7 minutes of television per day. Children in homes with subscriptions to multi-channel video programming watch, on average, about 67 percent more television than children in homes with only broadcast television service. (4)Many adults and most children do not distinguish between broadcast channels and cable channels. Rather, they view them as interchangeable and regularly switch between these types of channels. (5)Children often watch television in the absence of parental supervision. For example, many children watch television when they are home alone after school while their parents are still at work, and many children watch television at friends’ houses when their own parents are not present. A Kaiser Family Foundation report in March 2005 found that 68 percent of children ages 8 through 18 have a television set in their bedroom, and 37 percent have subscription multi-channel video service in their bedrooms. Furthermore, according to the Department of Education, 81 percent of children ages 2 through 7 sometimes watch television without adult supervision. Additionally, a 2003 Kaiser Family Foundation White Paper found that 91 percent of children ages 4 through 6 have turned on the television by themselves. (6)Multichannel video programming distributors, such as cable and DBS operators, are critical sources of video programming, such as public affairs programming, news programming and educational programming, which is not duplicated by broadcast television. Cable operators on average offer 25 channels in their basic tier of programming and approximately 45 additional channels in their expanded basic tier. Cable channels offering educational, informational, or entertainment programming that is appropriate for or attractive to children are generally included on the same expanded basic tier as channels offering programming that is sexually explicit. Parents are generally not given the choice of only purchasing channels that carry programming that is appropriate for children. (7)Indecent programming on channels carried on extended basic cable service is pervasive. Sexually explicit material is shown more than twice as often in original cable programming than in broadcast programming. (8)Complaints about indecent cable programming have increased exponentially in recent years. In 2004, the Federal Communications Commission received 700 percent more cable indecency complaints than it received in 2003. (9)Parents are concerned that indecent programming is being aired on cable channels viewed by children. A Kaiser Family Foundation White Paper has found that most parents believe cable programming should be subject to the same indecency rules as broadcast television. In addition, during the first half of 2005, the Federal Communications Commission received 10 or more complaints about alleged indecency or obscenity on 20 different cable networks. Of these 20 cable networks, 15 rank in the top 25 cable networks watched by children ages 2 through 11 during prime time, and 17 rank in the top 25 networks watched by children ages 12 through 17 during prime time. Most of the cable programs about which indecency complaints have been filed with the Federal Communications Commission aired during hours when many children are watching television. (10)Because subscribers to multichannel video programming and their children often channel-surf to find out what is on television, they are susceptible to unexpected exposure to unwanted content. Cable subscribers on average use their remote control to sample more channels before choosing a program than do those viewers who only receive over-the-air broadcasting, thus making cable subscribers more susceptible to being confronted by unwanted material. According to a study conducted in 2002 by the Cable Television Administration & Marketing Society, over 60 percent of cable subscribers use their remote controls to channel-surf, that is, to find out what is on television. Moreover, approximately 75 percent of children of ages 4 through 6 have changed channels using a remote control according to a 2003 Kaiser Family Foundation White Paper. (11)The v-chip does not effectively protect children from indecent programming carried by multichannel video programming distributors. According to a 2004 Survey by Knowledge Networks SRI, most of the television sets currently in use in the United States are not equipped with a v-chip, and of the 280,000,000 sets currently in United States households, approximately 161,000,000 are not equipped with a v-chip. Households that have a television set with a v-chip are also likely to have 1 or more sets that are not equipped with a v-chip, as found in a 2005 Broadcasting & Cable TVFAX article. (12)The ability to block channels pursuant to sections 624(d)(2) and 640 of the Communications Act of 1934 (47 U.S.C. 624(d)(2); 640) does not effectively protect children from indecent programming carried by multichannel video programming distributors. (13)A host of practical obstacles, including long waits and blocking failures, currently frustrate parents who attempt to rely on such options. This is especially true for those cable subscribers who do not have digital cable service. (14)Because of the manner in which multichannel video programming distributors currently bundle channels, most multichannel video programming subscribers currently receive and pay for numerous channels that they do not watch. According to Nielsen Media Research, for example, households receiving more than 70 networks only watch, on average, about 17 of these networks. (15)While multichannel video programming distributors currently provide subscribers with a variety of methods of blocking the audio and video programming of any channel that they do not wish to receive, such distributors generally do not offer the subscriber a credit on account of such blocked channel. Thus, subscribers must pay for channels included in programming tiers even if they are blocked at the request of the subscriber. (16)For those adults seeking to view programming for mature audiences, there are many sources of such programming on premium tiers currently offered by multichannel video programming distributors. HBO and Showtime, for example, are offered by the vast majority of cable and DBS services, and both programmers carry content that is more sexually explicit than what is available on broadcast channels. At least 98 percent of all cable systems offer premium channels and 42 percent of television households subscribe to 1 or more premium channels. (17)Parents need more effective ways to limit the exposure of children to television with harmful content by being able to purchase cable programming that only contains programming that is child-friendly. (18)The efforts to limit the exposure of children to harmful television content have not been successful because Federal regulatory agencies have not had the authority to require cable and satellite providers to offer programming that only contains programming that is child-friendly. Therefore, legislation is necessary to give Federal regulatory agencies the authority to combat this problem.

Definitions

Section 602 of the Communications Act of 1934 (47 U.S.C. 522) is amended— (1)by striking For purposes of this title— and inserting the following:

(a)

In general

For purposes of this title—

; and

(2)by adding at the end the following:

(b)

Additional definitions

In this title, the following definitions shall apply: (1)

Expanded basic tier

The term expanded basic tier— (A)means the tier of channels offered by a multichannel video programming distributor that is most frequently subscribed to by the subscribers of such distributor other than the basic service tier; and (B)includes channels offered in such basic service tier. (2)

Family tier of programming

(A)

In general

The term family tier of programming means a tier of channels offered by a multichannel video programming distributor that— (i)includes all channels offered on the expanded basic tier of such distributor; and (ii)does not include those channels offered on such expanded basic tier that carry programs that are rated TV–14 or TV–MA under the TV Parental Guidelines, as such ratings were approved by the Commission in implementation of section 551 of the Telecommunications Act of 1996, Video Programming Ratings, Report and Order, CS Docket No. 97–55, 13 F.C.C. Rcd. 8232 (1998)), between the hours of 6 a.m. and 10 p.m., except to the extent that such programs are news programs or live sporting events. (B)

Authority of Commission to modify definition

The Commission, by rule, may modify the definition in subparagraph (A)— (i)if the TV Parental Guidelines described in subparagraph (A) are modified; or (ii)to better effectuate the purpose of this Act, including to protect children from indecent and profane video programming. (3)

Live sporting event

The term live sporting event does not include— (A)a scripted event; or (B)any event where the outcome of such event is determined before such event occurs. (4)

Multichannel video programming service

The term multichannel video programming service means any video programming service provided by a multichannel video programming distributor. (5)

Themed tier of channels

The term themed tier of channels means a tier of channels— (A)in which each channel in such tier offers programming in the same genre, such as a package of sports channels or premium movie channels; and (B)that are offered by a multichannel video programming distributor for subscription separately from other channels or tiers of channels.

Protecting children from indecent video programming

Part IV of title VI of the Communications Act of 1934 (47 U.S.C. 551 et seq.) is amended by adding at the end the following:

642.

Provision of programming suitable for children by multichannel video programming distributors

(a)

Rulemaking

(1)

In general

Not later than 270 days after the date of enactment of this section, the Commission shall initiate and conclude a rulemaking to adopt measures to protect children from indecent video programming carried by a multichannel video programming distributor. (2)

Required Content

(A)

Obligations of MVPD's

Any rule adopted under paragraph (1) shall require a multichannel video programming distributor to either— (i)not transmit any material that is indecent or profane on any channel in the expanded basic tier of such distributor between the hours of 6 a.m. and 10 p.m., in accordance with the indecency and profanity policies and standards applied by the Commission to broadcasters, as such policies and standards are modified from time to time, including during any hours that indecent material is not allowed to be broadcast by such broadcasters; (ii)fully scramble or otherwise fully block, without charge, the audio and video programming on any channel that a subscriber does not wish to receive, except that such distributor— (I)may not block— (aa)a channel required to be on the basic tier of such distributor pursuant to section 623(b)(7)(A); or (bb)any equivalent channel on a direct broadcast satellite service or other type of multichannel video programming service; and (II)may not be required to block— (aa)video programming offered on a per-channel or per-program basis; or (bb)video programming on a themed tier of channels, unless a subscriber does not subscribe to such channel, program, or tier; or (iii)allow a subscriber to subscribe to a family tier of programming. (B)

Election of MVPD's

Any rule adopted under paragraph (1) shall— (i)require a multichannel video programming distributor to notify, on an annual basis— (I)the Commission as to which option described in clauses (i) through (iii) of subparagraph (A) such distributor elects to follow; and (II)in writing, the subscribers of such distributor as to which option described in clauses (i) through (iii) of subparagraph (A) such distributor elects to follow; (ii)allow, on an annual basis, each multichannel video programming distributor to change the election made by such distributor under clause (i). (C)

Scrambling options

(i)

In general

Any rule adopted under paragraph (1) shall require each multichannel video programming distributor that elects to follow the option described in subparagraph (A)(ii) to— (I)give any subscriber who elects to block any channel included in any service tier to which such subscriber subscribes a credit on the monthly bill of such subscriber for such blocked channel in an amount equal to the amount that such distributor pays for the right to provide such blocked channel to such subscriber, calculated in accordance with clause (ii); and (II)provide, at least on an annual basis, to each subscriber comprehensive written information concerning the amount of any credit that such subscriber would receive under subclause (I), if such subscriber elected to exercise such subscriber's right to block a particular channel included in any service tier to which such subscriber subscribes. (ii)

Calculation of credit

The credit described in clause (i)(I) shall be calculated as follows: (I)If a multichannel video programming distributor pays a fee per subscriber for the right to provide a channel to the subscribers of such distributor, then the amount of such credit shall be equal to the amount of such per subscriber fee. (II)If a multichannel video programming distributor pays a fixed amount for the right to provide a channel to all or a specified number of subscribers of such distributor, then the amount of such credit shall be equal to an allocable share of such fixed amount. (III)If a multichannel video programming distributor does not pay for the right to provide a channel to the subscribers of such distributor, then a subscriber shall not be entitled to receive a credit under clause (i)(I). (D)

Family tier options

Any rule adopted under paragraph (1) shall require each multichannel video programming distributor that elects to follow the option described in subparagraph (A)(iii) to allow a subscriber to the digital service offered by such distributor to obtain the family tier of programming for 1 or more of the video reception devices of such subscriber, while at the same time obtaining other service tiers for other video reception devices of such subscriber. (b)

Severability

If any provision of this section, or the application thereof to any person or circumstance, is held to be unlawful, the remaining portions of this section not deemed unlawful shall— (1)not be affected thereby; and (2)remain in effect to the fullest extent permitted by law.