[Senate Report 105-89]
[From the U.S. Government Publishing Office]



105th Congress                                                  S. Rpt.
                                 SENATE
1st Session                                                     105-89
_______________________________________________________________________

                                     

                                                       Calendar No. 182

           CHILDREN'S PROTECTION FROM VIOLENT PROGRAMMING ACT

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                 S. 363




                                     

               September 25, 1997.--Ordered to be printed

                             ------------

                      U.S. GOVERNMENT PRINTING OFFICE
                              WASHINGTON : 1997


       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                       one hundred fifth congress

                             first session

                     JOHN McCAIN, Arizona, Chairman

TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana                DANIEL K. INOUYE, Hawaii
SLADE GORTON, Washington             WENDELL H. FORD, Kentucky
TRENT LOTT, Mississippi              JOHN D. ROCKEFELLER IV, West 
KAY BAILEY HUTCHISON, Texas          Virginia
OLYMPIA SNOWE, Maine                 JOHN F. KERRY, Massachusetts
JOHN ASHCROFT, Missouri              JOHN B. BREAUX, Louisiana
BILL FRIST, Tennessee                RICHARD H. BRYAN, Nevada
SPENCER ABRAHAM, Michigan            BYRON L. DORGAN, North Dakota
SAM BROWNBACK, Kansas                RON WYDEN, Oregon

                       John Raidt, Staff Director

     Ivan A. Schlager, Democratic Chief Counsel and Staff Director

                                  (ii)

                                                       Calendar No. 182

105th Congress                                                   Report
                                 SENATE

 1st Session                                                     105-89
_______________________________________________________________________


 
           CHILDREN'S PROTECTION FROM VIOLENT PROGRAMMING ACT

                                _______
                                

               September 25, 1997.--Ordered to be printed

_______________________________________________________________________


       Mr. McCain, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                         [To accompany S. 363]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 363) ``A Bill to amend the 
Communications Act of 1934 to require that violent video 
programming is limited to broadcast after the hours when 
children are reasonably likely to comprise a substantial 
portion of the audience, unless it is specifically rated on the 
basis of its violent content so that it is blockable by 
electronic means specifically on the basis of that content'', 
having considered the same, reports favorably thereon with 
amendments and recommends that the bill (as amended) do pass.

                            Purpose of Bill

  The purpose of the bill is to protect American children from 
the harm caused by viewing violence on television.

                          Background and Needs

                               I. Summary

  Each year, over 20,000 people are murdered in the U.S.--one 
person is killed every 22 minutes. While France has a murder 
rate of two homicides per 100,000 people; the U.S. has 9.4. The 
U.S. murder rate is four times the rate of Europe and 11 times 
higher than that of Japan. The U.S. homicide rate is rising 6 
times faster than the population. Violence is the second 
leading cause of death for Americans between the ages of 15 and 
24, and is the leading cause of death for African-Americans of 
that age group.
  The growth of violence in our society has prompted Congress 
to look for as many solutions as possible to reduce the extent 
of this problem. Congress first began to examine the link 
between television and violence with hearings in the 1950s. 
Concern arose again in the late 1960s and early 1970s after the 
wave of urban unrest caused some to question the effect of 
television on violent behavior. In 1972, the Surgeon General 
released a study demonstrating a correlation between television 
violence and violent behavior and called for Congressional 
action.
  Each time the issue was raised in Congress, however, the 
industry continually promised to regulate itself while at the 
same time urging against Congressional action. In 1975, Richard 
Wiley, Chairman of the Federal Communications Commission (FCC), 
announced that he had reached an agreement with the 
broadcasters that made Congressional action unnecessary. This 
agreement provided that the television industry would 
voluntarily restrict the showing of violent shows during the 
``family hour.'' This practice fell out of use in the 1980s.
  During the 1980s, the amount of violence on television 
increased substantially. One study found up to 32 acts of 
violence on television on children's programming. The increase 
in violence coincides with an increase in the amount of time 
children spend watching television. Children spend, on average, 
28 hours per week watching television, which is more time than 
they spend in school.
  During the 1990s, Congress passed legislation allowing 
television industry representatives, without violating 
antitrust laws, to meet, consider, and jointly agree upon 
voluntary ratings standards. However, in 1993, the Department 
of Justice concluded that meetings by industry representatives 
to discuss and develop a voluntary ratings standard did not 
violate antitrust laws. Therefore, a legislative exemption from 
anti-trust laws was not needed.
  In 1996, Congress passed legislation requiring television 
sets to be equipped with an electronic device, the V-chip, that 
would allow parents to block certain programming. The 
legislation also encourages the video programming and 
distribution industry to establish rules for rating video 
programming containing sexual, violent, or other indecent 
materials and to broadcast signals containing these ratings. In 
January of 1997, the industry developed an age-based ratings 
proposal and the FCC subsequently requested comment on the 
industry proposal.
  Between 200 and 3000 independent research studies have now 
been conducted that demonstrate a causal link between viewing 
violent programming and aggressive behavior. Several national 
organizations, including the National Institutes for Mental 
Health, the American Psychological Association, and the 
National Parent-Teacher Association have supported a safe 
harbor approach in addressing television violence. More 
recently, these groups have opposed the industry's proposal to 
use an age-based ratings system.
  S. 363, the ``Children's Protection from Violent Programming 
Act'', requires the FCC to prohibit the distribution of violent 
video programming during hours when children are reasonably 
likely to comprise a substantial portion of the audience unless 
video programming is specifically rated on the basis of its 
violent content so that it is blockable by electronic means 
based on its content. S. 363 adopts a similar approach to 
television violence that the courts have upheld for broadcast 
and cable ``indecency''. The provisions inS. 363 apply to 
broadcast television, cable television (except for premium channels or 
pay-per-view programs), and other distribution media such as satellite 
television.
  This safe harbor is necessary to protect children from the 
effects of violent television if a content-based ratings system 
is not implemented. Age-based ratings systems like the one 
proposed by the industry do not allow parents to block 
programming based on violent content, thereby rendering 
ineffective any technology-based blocking mechanism designed to 
limit violent video programming. If programming is not rated 
specifically for violent content, and therefore, cannot be 
blocked on the basis of violent content, then restricting the 
hours when violent video programming is shown is the least 
restrictive and most narrowly tailored means to achieve a 
compelling governmental interest. The bill thus meets the 
``strict scrutiny'' test set down by the Supreme Court for 
``content-based'' regulation.

                  II. History of Congressional Concern

  Congress has expressed concern over the amount of violence on 
television for over forty years. Studies conducted in the 1950s 
showed that violent crime increased significantly early in that 
decade, and some researchers believed that the spread of 
television was partly to blame. In response, Congress held 
hearings concerning violence in radio and television and its 
impact on children and youth in 1952 and 1954. In 1956, one of 
the first studies of television violence reported that 4-year-
olds who watched the ``Woody Woodpecker'' cartoon were more 
likely to display aggressive behavior than children who watched 
the ``Little Red Hen.'' After the broadcast industry pledged to 
regulate itself, and after the FCC testified against 
censorship, no action was taken.
  The urban riots of the 1960s again raised concern about the 
link between television violence and violent behavior. In 
response to public concern, President Lyndon B. Johnson 
established the National Commission on the Causes and 
Prevention of Violence. The Commission's Mass Media Task Force 
looked at the impact of violence contained in entertainment 
programs aired on television and concluded that (1) television 
violence does have a negative impact on behavior and (2) 
television violence encourages subsequent violent behavior and 
``fosters moral and social values about violence in daily life 
which are unacceptable in a civilized society.'' \1\
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    \1\ U.S. National Commission on the Causes and Prevention of 
Violence. To Establish Justice, To Insure Domestic Tranquility. Final 
Report of the National Commission on the Causes and Prevention of 
Violence. Washington, U.S. Govt. Print. Off., December 1969, p. 199.
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  In 1969, Senator John Pastore, Chairman of the Subcommittee 
on Communications of the Senate Committee on Commerce, 
petitioned the Surgeon General to investigate the effects of TV 
violence. In 1972, Surgeon General Jessie Steinfeld released a 
study \2\ demonstrating a correlation between television 
violence and violent behavior and called for Congressional 
action. The five-volume report concluded that there was a 
causal effect from TV violence, but primarily on children 
presupposed to be aggressive. The then-FCC Chairman, Dean 
Burch, declined to regulate violence, saying that the FCC 
should not ``make fundamental programming judgments.''
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    \2\ U.S. Dept. of Health, Education, and Welfare. The Surgeon 
General's Scientific Advisory Committee on Television and Social 
Behavior. Television and Growing Up: The Impact of Televised Violence. 
Report to the Surgeon General. U.S. Public Health Service. Washington, 
U.S. Govt. Print. Off., 1972, p. 279.
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  Several more hearings were held after the release of the 
Surgeon General's report in the 1970s. Despite studies showing 
an increase in violent programming, little regulatory or 
Congressional action was taken. Discussions continued regarding 
the relationship between violence in society and what was shown 
on television. The continued concerns prompted Congress to 
request the FCC to study possible solutions to the problems of 
television violence and sexually-oriented materials.
  On February 20, 1975, under the direction of then-Chairman 
Wiley, the FCC issued its Report on the Broadcast of Violent 
and Obscene Material. The report recommended statutory 
clarification regarding the FCC's authority to prohibit certain 
broadcasts of obscene and indecent materials. However, with 
regard to the issue of television violence, the FCC did not 
recommend any congressional action because the industry had 
recently adopted a voluntary ``family viewing'' period. \3\ The 
Television Code, however, fell out of use in the 1980s.
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    \3\ On February 4, 1975, the National Association of Broadcasters 
(NAB) Television Code Review Board adopted a code implementing a family 
viewing period between 7 to 9 p.m., viewer advisories, and warnings to 
publishers of the advisories.
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  During the 1980s, no further measures were taken either by 
Congress or by the FCC to restrict television violence. 
However, during this period, over 200 studies were conducted 
demonstrating a causal link between viewing violent scenes and 
engaging in aggressive behavior. In addition, the growth of 
media outlets, especially cable television, led to an increase 
in the amount of violence on television.
  During the 101st Congress, then-Senator Paul Simon (D-IL) 
introduced the Television Program Improvement Act. That Act 
allowed television industry representatives, without violating 
antitrust laws, to meet, consider, and jointly agree upon 
implementing voluntary standards that would lead to reducing 
violence depicted in television programs. It was signed into 
law as Title V of the Judicial Improvements Act of 1990. 
Industry discussions led to the release, in December 1992, of 
joint standards regarding the broadcasting of excessive 
television violence. In June 1993, the networks adopted a 
policy that, before and during the broadcasting of programs 
that might contain excessive violence, the following 
announcement would be made: ``Due to some violent content, 
parental discretion is advised.'' The Independent Television 
Association, the trade group representing many of the 
television stations not affiliated with one of the networks, 
adopted a similar voluntary code.
  Despite these efforts by the industry, there were many in 
Congress that felt the voluntary code did not adequately 
address the concerns of parents over television violence. In 
October 1993, the Senate Commerce Committee held a hearing on 
television violence to consider a variety of legislative 
proposals. Attorney General Janet Reno testified that all the 
legislation currently pending before the Committee, including 
S. 1383, the Children's Protection From Violent Programming Act 
of 1993 (Hollings-Inouye), S. 973, the Television Report Card 
Act of 1993 (Dorgan), and S. 943, the Children's Television 
Violence Protection Act of 1993 (Durenberger), would be 
constitutional. The major broadcast networks and other industry 
representatives argued that the amount of violent programming 
had declined. The industry representatives also requested more 
time to implement proposed warning labels before the Congress 
considered legislation. No further action was taken on the 
bills in the 103rd Congress.
  Senator Simon's legislation provided an antitrust exemption 
for three years until 1993. In 1993, he requested the views of 
the Department of Justice on the antitrust implications of the 
collective efforts of the television industry to address the 
effects of violence on television. In her response, Sheila 
Anthony of the Department of Justice stated that the Department 
did not believe that the continuance of industry meetings to 
develop a ratings standard presented a substantial antitrust 
risk.\4\ Industry members were free to meet and develop a 
ratings standard.
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    \4\ Letter to Paul Simon, Senator, from Sheila Anthony, Assistant 
Attorney General, DOJ, (November 29, 1993).
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  During floor consideration of S. 652, the Telecommunications 
Competition and Deregulation Act of 1995, the Senate adopted an 
amendment based on S. 332, the Children's Media Protection Act 
of 1995, offered by Senators Conrad and Lieberman. The 
amendment required all new television sets to be equipped with 
a programmable chip that would allow parents to block out 
specific programs. In addition, the amendment required the 
establishment of a ratings commission if the industry failed to 
set up a voluntary ratings system within one year. The Senate 
adopted the amendment by voice vote, but after a motion to 
table, the amendment was defeated by a vote of 73-26.
  On July 11, 1995, the Committee held its second hearing on 
television violence to consider pending measures, including S. 
470, the Hollings safe harbor legislation. S. 470 (104th 
Congress) was identical to S. 1383 (103rd Congress). The 
Committee subsequently reported S. 470 without amendment on 
August 10, 1995 by a recorded vote of 16 yeas and 1 nay, with 
two Senators not voting. Senator Hollings wrote to then-
Majority Leader Dole, and subsequently to Majority Leader Lott, 
requesting floor time for S. 470. However, due to several holds 
placed on the legislation, the full Senate did not consider S. 
470 during the 104th Congress.
  As part of the 1996 Telecommunications Act, the 104th 
Congress adopted legislation concerning the V-chip and ratings 
system. Based upon those provisions, manufacturers of 
television sets with a 13-inch or larger screen must install an 
electronic device each set manufactured after 1998. This 
device, dubbed the ``V-chip'' for violence, could be programmed 
to block programming with certain ratings. To make the V-chip 
work, the 1996 Act encouraged the video programming industry to 
``establish voluntary rules for rating video programming that 
contains sexual, violent, or other indecent material about 
which parents should be informed before it is displayed to 
children,'' and to broadcast voluntarily signals containing 
these ratings.
  On February 29, 1996, all segments of the television industry 
created the ``TV Ratings Implementation Group'' (``ratings 
group''),\5\ headed by Motion Picture Association of America 
(MPAA) President Jack Valenti. The group submitted its 
voluntary ratings proposal to the FCC on January 17, 1997. The 
FCC issued a Public Notice on February 7, 1997, seeking comment 
on the ratings group's plan. Pursuant to the 1996 Act, the FCC 
must ``consult with appropriate public interest groups and 
interested individuals from the private sector'' about the 
industry's voluntary plan, and then determine if the plan is 
``acceptable'' to the FCC.
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    \5\ The Implementation Group included members from the broadcast 
networks; affiliated, independent and public television stations; cable 
programmers; producers and distributors of cable programming; 
entertainment companies; movie studios; and members of the guilds 
representing writers directors, producers, and actors.
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  If the FCC finds the ratings scheme unacceptable, it must, by 
law, appoint an advisory committee of industry representatives 
and ``appropriate public interest groups'' to provide 
``guidelines and recommended procedures'' for an alternative 
ratings scheme. The 1996 Act did not provide a timetable within 
which the FCC must determine whether the ratings system is 
acceptable. Press accounts report that the industry has 
threatened to sue if the FCC rejects its proposal.

                      III. Research on TV Violence

  Research has consistently shown a link between viewing 
violence on television and violent behavior. Following the 
Surgeon General's 1972 report, significant research was 
conducted detailing the correlation between viewing violent 
television and later aggressive behavior. Several of the 
leading medical associations published similar conclusions, 
including the American Medical Association, the American 
Psychological Association, the American Pediatric Association, 
and the American Academy of Pediatrics.\6\
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    \6\ Centerwall, Brandon S., Television and Violence: The Scale of 
the Problem and Where to Go From Here. JAMA, v. 267, no. 22, June 10, 
1992, p.3059.
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  For instance, a study by Tanis Williams supports the 
conclusion that there is a direct correlation between 
television violence and aggressive behavior in children. 
Williams, a researcher at the University of British Columbia, 
studied the impact of television on a small rural community in 
Canada that received television signals for the first time in 
1973. The researchers observed forty-five first and second 
graders for signs of inappropriate aggressive behavior. Two 
years later, the same group was observed and it was found that 
the aggressive behavior in the children increased by 160 
percent as compared to a control group that saw no noticeable 
increase in aggressive behavior.\7\
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    \7\ Centerwall, Brandon. Television and Violent Crime, Public 
Interest, No.111, Spring 1993. p.56.
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  In 1982, the National Institute of Mental Health (NIMH) 
produced a new report entitled Television and Behavior: Ten 
Years of Scientific Progress and Implications for the Eighties. 
In contrast to the Surgeon General's 1972 report, the NIMH 
concluded that TV violence affects all children, not just those 
predisposed to aggression. The 1982 report reaffirmed the 
conclusions of the earlier studies stating:
  After 10 more years of research, the consensus among most of 
the research community is that violence on television does lead 
to aggressive behavior by children and teenagers who watch the 
programs. This conclusion is based on laboratory experiments 
and on field studies. Not all children become aggressive, of 
course, but the correlations between violence and aggression 
are positive. In magnitude, television violence is as strongly 
correlated with aggressive behavior as any other behavioral 
variable that has been measured. The research question has 
moved from asking whether or not there is an effect to seeking 
explanations for the effect. \8\
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    \8\ The NIMH Report, p.6.
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  Not all research, though, supported this conclusion. In 1982, 
NBC sponsored a study of the issue and reported there was no 
correlation. In addition, a 1984 analysis of all the available 
studies by Jonathan L. Freedman, of the Department of 
Psychology at the University of Toronto, concluded that the 
published studies did not support the hypothesis that viewing 
habits of children resulted in subsequent changes in behavior 
in children. The Congressional Research Service (CRS) reports 
that both the NBC study and the Freedman studies have been 
discounted by additional research. In fact, a re-analysis of 
the NBC study revealed a direct correlation between viewing 
violence and harmful behavioral changes in children.
  More recent research adds credibility to the findings of the 
National Institute of Mental Health. Two of the most widely 
publicized empirical studies adopt two different methodologies, 
but arrive at the same result. In one of the studies, Dr. 
Leonard Eron followed a group of children in upstate New York 
State and examined them at ages 8, 19 and 30. The study found 
that the more the participants watched TV at age 8, the more 
serious were the crimes of which they were convicted by age 30, 
the more aggressive was their behavior when drinking, and the 
harsher was the punishment which they inflicted on their own 
children. Similar experiments were conducted in Australia, 
Finland, Israel, and Poland, and the outcome was the same in 
each experiment.
  Another study was conducted by Dr. Brandon Centerwall, a 
Professor of Epidemiology at the University of Washington. He 
studied the homicide rates in South Africa, Canada and the 
United States in relation to the introduction of television. In 
all three countries, Dr. Centerwall found that the homicide 
rate doubled about 10 or 15 years after the introduction of 
television. According to Dr. Centerwall, the lag time in each 
country reflects the fact that television exerts its behavior-
modifying effects primarily on children, whereas violent 
activity is primarily an adult activity. Dr. Centerwall 
concludes that ``long-term childhood exposure to television is 
a causal factor behind approximately one-half of the homicides 
committed in the United States.'' This report \9\ concerning 
the harmful impact of viewing television violence on 
preadolescent children found that extensive exposure to 
television violence could lead to chronic effects extending 
into later adolescence and adulthood.
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    \9\ Centerwall, p. 3059-3063.
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  These studies explore the link between violent television and 
violent behavior. However, violent behavior may not be the only 
harm caused by television violence. The American Psychological 
Association (APA) believes that the harm caused by violent 
television is broader and includes fearfulness and callousness:
          Viewing violence increases fear of becoming a victim 
        of violence, with a resultant increase in self-
        protective behaviors and increased mistrust of others;
          Viewing violence increases desensitization to 
        violence, resulting in calloused attitudes toward 
        violence directed at others and a decreased likelihood 
        to take action on behalf of the victim when violence 
        occurs (behavioral apathy); and
          Viewing violence increases viewers' appetites for 
        becoming involved with violence or exposing themselves 
        to violence.

                     IV. The Growth of TV Violence

  According to several studies, television violence increased 
during the 1980s both during prime-time and during children's 
television hours. Children between the ages of 2 and 11 watch 
television an average of 28 hours per week. According to a 
University of Pennsylvania study, in 1992 a record 32 violent 
acts per hour were recorded during children's shows. The APA 
estimates that a typical child will watch 8,000 murders and 
100,000 acts of violence before finishing elementary school.
  A similar story exists for prime-time programming. The 
National Coalition on Television Violence (NCTV), a monitoring 
and advocacy group, found that 25 percent of the prime-time 
shows in the 1992 fall season contained ``very violent'' 
material.
  In August 1994, the Center for Media and Public Affairs 
released the results of a new survey showing an increase in the 
amount of violence on a single day of television in Washington, 
D.C. As it did in 1992, the Center monitored 10 channels of 
programming (six broadcast channels and 4 cable programs) on a 
single day in April. The Center found a 41 percent increase in 
television violence over the findings of its 1992 study. The 
Center counted 2,605 violent scenes in that day, an average of 
almost 15 scenes of violence per channel per hour. Life-
threatening violence increased by 67 percent and incidents 
involving gun play rose 45 percent. The Center found that the 
greatest sources of violence on television came from ``promos'' 
for upcoming shows and movies, which were up 69 percent from 
1992. Only toy commercials saw a reduction in violence; 
violence in toy commercials dropped 85 percent.
  Sponsors of these studies believe that there are several 
reasons for this increased TV violence. One cause is the 
increase in ``reality shows'', such as Top Cops, Hard Copy, and 
A Current Affair. These shows describe or provide tape footage 
from actual police activity, including efforts to subdue 
suspects resisting arrest. Another reason is the increase in 
violence shown on the nightly news programs, which may in part 
result from the increase in violent acts in society. A very 
significant factor is the increase in cable programming that 
seeks smaller, niche audiences. According to one study, 3 of 
the top 4 most violent channels were cable channels, while the 
three major network affiliates and the public broadcasting 
affiliate were at the bottom of the list--the 144 music videos 
on MTV included almost as much violence as the three network 
affiliates combined.
  Some believe that the most violent programs are cartoons. The 
inclusion of fantasy or animated characters in the compilation 
of violent programming is controversial. Some observers believe 
that cartoon violence should be distinguished from ``real-
life'' violence that may glamorize violence. Many child 
psychologists, however, believe that young children are 
especially vulnerable to violent programs because they are 
unable to distinguish between fantasy and reality.
  Violence continues to be prevalent on television. In March of 
1997, the Center for Communications and Social Policy released 
a new study on television violence. The study concluded that 
there has been no meaningful change in the presentation of 
violence on television during the last two years. Researchers 
identified over 18,000 violent incidents in a sample of 2,000 
hours drawn from 23 cable and broadcast channels during the 
1995-96 television season. Over half of all violent incidents 
still fail to show the victim suffering any pain. Long-term 
negative consequences from violence are portrayed in only 16 
percent of programs this year, compared to 13 percent last 
year. Programs that employ a strong anti-violence theme 
remained extremely rare, holding constant at 4 percent of all 
violent shows last year. The report urges that television 
ratings be content-based rather than age-based and warns 
parents that the age-based ratings system is likely to attract 
children to restricted programs and more aggressive children 
are most vulnerable to this effect.

           V. Anecdotal Evidence of the Effect of TV Violence

  In addition to the research, there are several compelling 
examples of the effects of television on children. In May 1979, 
Johnny Carson used a professional stuntman to ``hang'' Carson 
on stage. After a ``noose'' was placed around Carson's neck, he 
was dropped through a trap door and emerged unharmed. The next 
day, a young boy, Nicholas DeFilippo, was found dead with a 
rope around his neck in front of a TV set tuned to NBC. The 
parents of the child sued NBC for negligence, but lost their 
suit. Twenty-six people died from self-inflicted gunshot wounds 
to the head after watching the Russian Roulette scene in the 
movie ``The Deer Hunter'' when it was shown on national TV.
  ``Beavis and Butt-head'', a cartoon which used to air every 
day at 7:00 p.m. on MTV, is a parody of two young teenagers and 
their view of daily life. The two characters engage in what 
some observers view as irresponsible activity, including 
cruelty to animals. In particular, the show occasionally has 
the two characters suggesting that setting objects on fire is 
``cool''. It has been alleged that the cartoon's depiction of 
unsafe fireplay led one 5-year-old in Ohio to set his family's 
mobile home on fire, causing the death of his 2-year-old sister 
in 1993. Although MTV denies any connection, it has removed all 
references to fire in future episodes, and has rescheduled the 
program to 10:00 p.m.

                VI. Response by the Television Community

  Although the broadcast community now admits that there is 
some link between violent television and violent behavior, the 
broadcasters join with the other sectors of the industry in 
believing that these findings exaggerate the importance of 
television violence. They argue, for instance, that the Eron 
and Centerwall studies contain methodological problems because 
they fail to take into account other factors that may 
contribute to the violent behavior. They argue that income 
level, socioeconomic status, and especially the amount of 
supervision by parents have a greater impact on violent 
behavior than television. One study noted that an increase in 
violent behavior by children also was found after children 
watched Sesame Street, perhaps the most successful educational 
television show. They note that the homicide rate for white 
males in the U.S. and Canada stabilized 15 years after the 
introduction of television and did not increase in the 1980s 
despite the increase in the amount of television violence.

A. Public service announcements

  Efforts undertaken by industry include public service 
announcements (PSAs). For example, in November 1993, NBC 
launched a campaign called ``The More You Know'' focusing on 
teenage violence and conflict resolution. However, the amount 
of time spent on PSAs have decreased during the last few years.
  In speeches before the Cellular Telecommunications Industry 
Association and the National Association of Broadcasters, Reed 
Hundt, Chairman of the FCC expressed concern about the 
diminishing time being spent on PSAs. In 1993, the Big Four 
Networks averaged 12 seconds of PSAs per prime-time hour, but 
by November of 1996 that number was down to 6.2 seconds. \10\ 
Time spent on PSA's is being eroded, in part because 
broadcasters are spending more time on commercials and 
promotionals. Of approximately 15 minutes of prime-time that 
the networks devote to commercials, credits, promotions and 
PSAs, PSAs are accorded only a few seconds. Over the past two 
years, promotional time at the broadcast networks has increased 
more than 25 percent and in 1996, both CBS and NBC hit all time 
highs in the amount of promotional time spent per prime-time 
hour.\11\
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    \10\ Richard Katz, Television: Networks Hit on PSA Loads, 
(Mediaweek, April 14, 1997).
    \11\ Kyle Pope, Networks' Self-promotion Ads Irk FCC (The Arizona 
Republic, April 11, 1997).
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B. Common television code

  In December 1992, three networks (ABC, NBC, and CBS) adopted 
a common set of ``Standards for the Depiction of Violence in 
Television Programs.'' Some observers have criticized these 
efforts because the standards adopted by the networks appear 
weaker than networks own standards.

C. Warning labels

  In June 1993, the networks also decided voluntarily to place 
``warning'' labels before any show which the networks believed 
to contain violent material. The three networks committed that, 
before and during the broadcasting of various series, movies, 
made-for-TV movies, mini-series and specials that might contain 
excessive violence, the following announcement would be made: 
``Due to some violent content, parental discretion is 
advised.'' The warning label has been tested for the past two 
years. The warning is also included in advertising and 
promotional material for certain programs and is offered to 
newspapers and magazines that print television viewing 
schedules.
  A similar advisory program was adopted by the Independent 
Television Association (INTV--the trade group representing many 
of the 350 television stations not affiliated with one of the 
three networks). All the station members of INTV have adopted 
this voluntary code.
  Despite the institution of warning labels, studies 
demonstrated significant rises in the level of violence on 
television. As stated above, there was a 41 percent increase in 
the level of television violence between 1992 and 1994. In 
1994, there were 2,605 violent scenes in a day, an average of 
almost 15 scenes of violence per channel per hour. There has 
been no significant change in the presentation of violence in 
the last two years.

D. Industry's proposed ratings system

  Pursuant to the Telecommunications Act of 1996, the industry 
proposed a ratings system in December of 1996. The voluntary 
ratings system, called the ``TV Parental Guidelines,'' consists 
of the following six age-based ratings categories, which 
resemble the Motion Picture Ratings System:
          TV-Y All Children.--This program is designed to be 
        appropriate for all children. Whether animated or live-
        action, the themes and elements in this program are 
        specifically designed for a very young audience, 
        including children from ages 2-6. This program is not 
        expected to frighten younger children.
          TV-Y7 Directed to Older Children.--This program is 
        designed for children age 7 and above. It may be more 
        appropriate for children who have acquired the 
        developmental skills needed to distinguish between 
        make-believe and reality. Themes and elements in this 
        program may include mild physical or comedic violence, 
        and may frighten children under the age of 7. 
        Therefore, parents may wish to consider the suitability 
        of this program for their very young children.
          TV-G General Audience.--Most parents would find this 
        program suitable for all ages. Although this rating 
        does not signify a program designed specifically for 
        children, most parents may let younger children watch 
        this program unattended. It contains little or no 
        violence, no strong language and little or no sexual 
        dialogue or situations.
          TV-PG Parental Guidance Suggested.--This program may 
        contain some material that some parents would find 
        unsuitable for younger children. Many parents may want 
        to watch it with their younger children. The theme 
        itself may call for parental guidance. The program may 
        contain infrequent coarse language, limited violence, 
        some suggestive sexual dialogue and situations.
          TV-14 Parents Strongly Cautioned.--This program may 
        contain some material that many parents would find 
        unsuitable for children under 14 years of age. Parents 
        are strongly urged to exercise greater care in 
        monitoring this program and are cautioned against 
        letting children under the age of 14 watch unattended. 
        This program may contain sophisticated themes, sexual 
        content, strong language and more intense violence.
          TV-M Mature Audience Only.--This program is specially 
        designed to be viewed by adults and therefore may be 
        unsuitable for children under 17. This program may 
        contain mature themes, profane language, graphic 
        violence and explicit sexual content.
  All television programming except for news and sports will be 
rated. The ratings will be assigned in most cases by broadcast 
and cable networks and producers. The ratings will appear 
before each program, with the ratings icons appearing for 15 
seconds at the beginning of each program in the upper left-hand 
corner of the television screen. The rating will also be 
encoded for each program, once the FCC sets a technical 
standard, which will enable the use of the ``V-chip.''
  The ratings group has announced that it will supply the 
guidelines and explanations to newspapers and other program 
listings, including TV Guide and cable's Prevue Channel. At 
this point, however, it is unclear whether the newspapers will 
print the descriptions in full.

        VII. Response to the Industry's Proposed Ratings System

  The industry plan has been criticized for focusing on age 
groupings instead of content. The 1996 Act envisioned that the 
ratings system, and consequently, the encoded programming, 
would allow parents to block specific programming content they 
found objectionable. Under the proposed age-based ratings 
system, parental groups argue that parents are unable to block 
specific programming. Critics claim that an age-based advisory 
approach places the entertainment industry in the position of 
making the judgment about program suitability, as opposed to 
merely describing the content and then allowing parents to 
apply their own values to judge the suitability of such content 
for their child. According to proponents of the V-chip, of 
greatest relevance to the current debate is the fact that the 
current V-chip ratings framework confounds or intermingles 
three types of sensitive portrayals: violence, sexual material, 
and adult language. Thus, it prevents parents from blocking a 
specific program based on whether a show actually contains any 
violent depictions that the parent may find unsuitable for 
their child.
  Over 800 comments were filed with the FCC and of those only 
26 approved of the industry rating proposal and almost all of 
the approving comments were submitted by network-affiliated TV 
stations. In addition, a number of members of Congress 
submitted a joint letter to the FCC expressing their opposition 
to the rating system.
  The National PTA, the American Medical Association (AMA), the 
American Academy of Pediatrics (AAPA), the National Education 
Association (NEA), Children Now, the American Psychological 
Association (APA), the Coalition for America's Children, the 
Children's Defense Fund, the American Academy of Child & 
Adolescent Psychiatry (AACAP), the Center for Media Education, 
and the Public Broadcasting Service have opposed using movie-
type ratings systems. Instead, these groups have advocated 
ratings based onprogram content, with programs rated separately 
for sex, violence, and language (``S,V,L''). These groups have 
criticized the age-based ratings system as too vague and broad for 
parents to decide what is right for a child to watch on television. In 
addition, the groups state that the ratings raise more questions than 
they answer, such as how to differentiate ``between a war documentary 
and a violent made-for-t.v. movie,'' or what level of sexual content a 
particular program contains.
  The AACAP has been particularly critical of the ratings 
system, stating that:

        Programs portraying graphic and realistically appearing 
        violence, sex, horror, adult language, and illegal 
        behavior without social consequences increase the risk 
        of dangerous behaviors and aberrant emotional and 
        intellectual development by children and adolescents. * 
        * * An age-based system, such as the one now being 
        proposed, carries the risk of missing significant 
        developmental variations in young people.

  A survey by the National PTA found that 80 percent of parents 
want separate ratings for sex violence and language content--
not a single summary rating for programs. Another survey, by 
the Media Studies Center, found that 73 percent of Americans 
support a TV rating system based on program content, versus 15 
percent that support a system like the movie system which is 
based on age.
  The ratings group argues that the industry's guidelines are 
sufficient to meet the 1996 Act's standard for the ratings 
system. They state that the guidelines the industry adopted 
meet that test because they place programs into categories 
based on specific levels of sexual content, violence, and 
strong or profane language. Proponents of the plan insist that 
they will continue to study the system and modify it as 
necessary (although Jack Valenti has reported that he will sue 
the FCC if it finds the ratings group's plan as 
``unacceptable''). A principal concern of the broadcast 
industry is that content-based ratings which address sexual 
content and violence would deter sponsors from buying 
advertising time slots during programs rated as containing 
violent or sexual content.
  Other groups, such as Children Now and the AACAP, also 
criticize the fact that the industry will self-rate its shows, 
particularly noting that the lack of standards and appraisal 
protocols for raters to use in reviewing programs would result 
in inconsistencies. Some inconsistencies between programs' 
ratings have developed. For example, NBC assigned the TV-14 
rating to ``The Tonight Show with Jay Leno,'' while CBS 
assigned the TV-PG rating to ``The Late Show with David 
Letterman.'' Another criticism includes the ambiguity of what 
constitutes a ``news'' show, which would not be rated. Some of 
the most violent and sexually suggestive programming is 
presented by pseudo news programs like ``A Current Affair'' and 
reality-based programs like ``Cops.''
  The ratings group responds that self-rating was ``the only 
feasible way in which the 2,000 hours of television programming 
distributed every day could be rated.'' The television industry 
also claims that the amount of violent programming has been 
reduced in recent years, demonstrating its commitment to self-
regulation.
  Opponents also criticize the rating icon appearing on the 
television screen as being too small, too transparent, and as 
not lasting long enough to be seen. The ratings group further 
argues that the 1996 Act does not require the industry to place 
the icons on television; instead, they voluntarily placed the 
icons on TV.
  Supporters of the ratings group's system advocate giving the 
ratings plan a chance. President Clinton suggested that the 
public should withhold judgment on the system for 10 months; if 
it doesn't work out, then perhaps it could be revised. 
Similarly, the American Association of School Administrators 
(AASA) supports the ratings group's plan, as ``an important 
first step,'' but will ``be sensitive to how the guidelines are 
working for parents and how the entertainment industry is 
applying them.'' The AASA had suggested that a council of 
advisers be set up, with members of the industry and child 
advocacy groups, to meet annually. The ratings group did set up 
the council, but without the child advocacy groups. The 1996 
Act requires the FCC to act if the industry does not establish 
acceptable ``voluntary rules for rating video programming that 
contains sexual, violent, or other indecent material about 
which parents should be informed before it is displayed to 
children.''
  Responding to criticism leveled at the new ratings system, 
the Newspaper Association of America (NAA) wrote to the ratings 
group requesting to keep simple the ``symbols'' of the system 
to be inserted into the newspaper, because making them 
exceedingly lengthy or cumbersome would create ``artificial 
barriers to newspaper printing'' of the symbols.

                    VIII. Actions in Other Countries

  In 1994, the Canadian broadcasters, under pressure from the 
Canadian Government, instituted a new voluntary Code Against 
Violence for television that took effect this year. The code 
bans shows with gratuitous violence and limits those shows that 
include scenes of violence suitable for adults only to the 
hours after 9 p.m. The code places limits on children's shows 
by requiring that violence not be a central theme. Also, it 
stipulates that, in children's programs, violence not be shown 
as a preferred way of solving problems and that the 
consequences of violence be demonstrated. In addition Canada is 
working to develop a ratings system that can be used with the 
V-chip which was invented in Canada.
  Other countries that have adopted rules restricting violence 
to certain hours of the day include Australia, France, Italy 
and New Zealand.

                     VIII. Constitutional Analysis

  Some have questioned whether limiting the distribution of 
violent programming to certain hours of the day would be 
consistent with the First Amendment of the Constitution. 
Attorney General Janet Reno responded to some of these 
questions when she testified in October, 1993, that the safe 
harbor approach in S. 1383 (the predecessor to S. 363) and the 
other bills before the Committee at that time were 
constitutional.\12\
---------------------------------------------------------------------------
    \12\ Testimony of Attorney General Janet Reno, Hearing on S. 1383, 
the Children's Protection from Violent Programming Act of 1993, et al., 
before the Senate Committee on Commerce, Science and Transportation, 
October 20, 1993, pp. 30, 42.
---------------------------------------------------------------------------
  There are several exceptions to the First Amendment. 
According to a study by the Congressional Research Service 
(CRS),\13\ the Supreme Court has allowed Government regulation 
of obscenity, indecency, child pornography, and speech that 
creates a ``clear and present danger''. In addition, CRS notes 
that the courts provide only limited First Amendment protection 
to commercial speech, to defamation, and to speech that can be 
harmful to children. CRS further notes that ``even speech that 
enjoys the most extensive First Amendment protection may be 
restricted on the basis of its content if the restriction 
passes `strict scrutiny' ''. \14\ Finally, CRS notes that the 
courts will allow certain time, place and manner restrictions.
---------------------------------------------------------------------------
    \13\ ``Freedom of Speech and Press: Exceptions to the First 
Amendment'', Henry Cohen, American Law Division, Congressional Research 
Service, April 7, 1992, Revised July 6, 1993.
    \14\ ``Strict scrutiny'' requires the government to show that the 
restriction serves to promote a compelling Governmental interest and is 
the least restrictive means to further the articulated interest. See, 
Sable Communications of California v. Federal Communications 
Commission, 492 U.S. 115, 126, (1989) (Sable).
---------------------------------------------------------------------------
  While no court has ruled specifically on the 
constitutionality of the approach taken by S. 363, there 
appears to be many lines of decisions that would support the 
constitutionality of the safe harbor approach to television 
violence. S. 363 could fall within the ambit of the clear and 
present danger exception, the limitations on commercial speech 
and speech harmful to children, the strict scrutiny test, and/
or a regulation of time, place and manner. The following 
discussion focuses on the recent opinion concerning broadcast 
indecency and the ``strict scrutiny'' test as examples of the 
lines of analysis that appear to support the constitutionality 
of the safe harbor approach. This discussion is not exhaustive, 
and there may well be arguments to justify the legislation 
which do not appear below.

A. Safe harbor under an ACT IV case analysis

  A Court of Appeals decision in ACT IV \15\ to uphold the safe 
harbor for broadcast indecency provides, perhaps, the best 
indication that the courts would uphold the safe harbor 
approach for television violence.
---------------------------------------------------------------------------
    \15\ Action for Children's Television, et al. v. FCC, et al., 58 
F.3d 654 (D.C. Cir. 1995) cert. denied 116 S.Ct. 701 (1996).
---------------------------------------------------------------------------
  In 1992, Congress enacted legislation sponsored by Senator 
Robert Byrd to prohibit the broadcast of indecent programming 
during certain hours of the day. The Byrd amendment allowed 
indecent broadcasts between the hours of midnight and 6 a.m., 
except that public broadcast stations that go off the air at 
midnight or before were permitted to air indecent broadcasts 
between the hours of 10 p.m. and 6 a.m.\16\
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    \16\ Congress had already prohibited obscene and indecent 
broadcasts many years earlier. Section 1464 of Title 18 of the U.S. 
Code prohibits the broadcast of any obscene, indecent, or profane 
language by means of radio communication. This section was enacted as 
part of Section 326 of the Communications Act of 1934 and was moved 
into Title 18 in 1948.
---------------------------------------------------------------------------
  On June 30th, 1995, the U.S. Court of Appeals for the 
District of Columbia Circuit, sitting en banc, upheld the 
constitutionality of the Byrd amendment in ACT IV. The court 
found, in a 7 to 4 opinion, that the safe harbor approach, also 
called ``channeling'', satisfied the two-part ``strict 
scrutiny'' test.\17\
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    \17\ While the court upheld the safe harbor approach implemented by 
the Byrd amendment, it found that the different treatment of certain 
public broadcast stations and other stations was unjustified. The court 
thus directed the FCC to modify its rules to apply a consistent safe 
harbor of 6 a.m. to 10 p.m. for all broadcast stations.
---------------------------------------------------------------------------
  The court found that the Government met the first prong of 
the test by establishing that the Government had a ``compelling 
governmental interest'' in protecting children from the harm 
caused by indecency. The court found two compelling 
governmental interests, and left open the possibility of a 
third.\18\ First, the court found that ``the Government has a 
compelling interest in supporting parental supervision of what 
children see and hear on the public airwaves.'' \19\ The court 
cited Ginsberg v. New York, 390 U.S. 629, 638, for the 
proposition that Government has a ``fundamental interest in 
helping parents exercise their `primary responsibility for 
[their] children's well-being' with `laws designed to aid [in 
the] discharge of that responsibility.'' \20\ Second, the court 
found that ``the Government's own interest in the well-being of 
minors provides an independent justification for the regulation 
of broadcast indecency.'' It quoted the Supreme Court again in 
New York v. Ferber, 458 U.S. 747, 756-57 (1982) for the 
proposition that
---------------------------------------------------------------------------
    \18\ The court found it unnecessary to address the FCC's contention 
that there is also a compelling Governmental interest in protecting the 
home against intrusion by offensive broadcasts. ACT IV, at 13.
    \19\ ACT IV, at 661.
    \20\ ACT IV, at 661.

          * * * a State's interest in safeguarding the physical 
        and psychological well-being of a minor is compelling. 
        A democratic society rests, for its continuance, upon 
        the healthy, well-rounded growth of young people into 
        full maturity as citizens. Accordingly, we have 
        sustained legislation aimed at protecting the physical 
        and emotional well-being of youth even when the laws 
        have operated in the sensitive area of constitutionally 
        protected rights.'' \21\
---------------------------------------------------------------------------
    \21\ ACT IV, at 661.

  The court found that the legislation met the second prong of 
the test because it uses the ``least restrictive means'' to 
accomplish that governmental interest. Here, the court noted 
that, in choosing the hours during which indecency would be 
banned, the Government must balance the interests of protecting 
children with the interests of adults. ``The question, then, is 
what period will serve the compelling governmental interests 
without unduly infringing on the adult population's right to 
see and hear indecent material.'' \22\
---------------------------------------------------------------------------
    \22\ ACT IV, at 665.
---------------------------------------------------------------------------
  After reviewing the evidence compiled by the FCC, the court 
upheld the determination that a ban on indecent programming 
during the hours of 6:00 a.m. to 10:00 p.m. satisfied the 
balance and was the least restrictive means. The court noted 
that, to the extent that such a ban affected the rights of 
adults to hear such programming, ``adults have alternative 
means of satisfying their interest in indecent material at 
other hours in ways that pose no risk to minors [such as 
renting videotapes, computer services, audio tapes, etc.].'' 
\23\ The court stated further that, ``[a]lthough the 
restrictions burden the rights of many adults, it seems 
entirely appropriate that the marginal convenience of some 
adults be made to yield to the imperative needs of the young.'' 
\24\
---------------------------------------------------------------------------
    \23\ ACT IV, at 666.
    \24\ ACT IV, at 667.
---------------------------------------------------------------------------
  The reasoning of the court in ACT IV appears to apply equally 
to S. 363. As with indecency, the Government has a compelling 
interest in protecting the moral and psychological well-being 
of children against the harm of viewing television violence. 
Also as with indecency, restricting television violence to 
certain hours of the day balances the rights of adults to watch 
violent programming with the interests of protecting children. 
Adults have other ways of obtaining access to violent 
programming just as they have other ways of obtaining indecent 
materials. Thus, the decision upholding the safe harbor for 
indecency appears to provide strong support for finding a safe 
harbor for violence to be constitutional.

B. The strict scrutiny test

  The strict scrutiny test is one of the most difficult, if not 
the most difficult test used to analyze the constitutionality 
of a First Amendment limitation. The ACT IV court as discussed 
above, used a strict scrutiny analysis in determining 
constitutionality. The following discussion further assesses 
the safe harbor approach under strict scrutiny, not because of 
the certainty that this is the test that will be applied, but 
because, if the safe harbor approach can pass the strict 
scrutiny test, it could certainly pass any lesser standard of 
review. Regulation will pass the strict scrutiny test if the 
regulation is narrowly tailored to meet a compelling government 
interest.
  There is good reason to believe that S. 363 would pass the 
``strict scrutiny'' test, and not just because of the results 
of the strict scrutiny analysis under the ACT IV case. In some 
respects, the constitutionality of a safe harbor approach for 
violence could be easier to sustain than for indecency. As 
opposed to the indecency issue, Congress has developed a long 
and detailed record to justify the legislation. Congress has 
held hearings to explore various approaches to television 
violence in every decade since the 1950s. This Committee alone 
has over 18 days of hearings over the past three decades on 
this topic, including at least two hearings specifically on the 
safe harbor approach. The Committee has laid an extensive 
groundwork for considering the least restrictive means of 
protecting children from violence on television. By contrast, 
the Byrd amendment, the legislation at issue in the ACT IV 
case, was adopted on the Senate floor without any Committee 
hearings. Furthermore, as Chief Judge Edwards of the D.C. 
Circuit has acknowledged twice, there is much stronger evidence 
that viewing violence on television causes harm to children 
than any proposed harm caused by indecency.\25\
---------------------------------------------------------------------------
    \25\ ``There is significant evidence suggesting a causal connection 
between viewing violence on television and antisocial violent behavior. 
. .'' (emphasis in original) ACT IV, Edwards, C.J., dissenting, at 671.
---------------------------------------------------------------------------
            1. The compelling governmental interest
  The Government has several compelling interests in protecting 
children from the harmful effects of viewing violence: an 
interest in protecting children from harm, an interest in 
protecting society in general, an interest in helping parents 
raise their children, and an interest in the privacy of the 
home. Each of these are discussed below.
    i. Harm to children.--Government has a compelling interest 
in protecting children from the harm caused by television 
violence. As several witnesses testified, there is little doubt 
that children's viewing of violence on television encourages 
them to engage in violent and anti-social behavior, either as 
children or later as adults. Somewhere between 200 and 3000 
independent studies demonstrate a causal connection between 
viewing violence and violent behavior.\26\ These studies have 
included ``field'' studies of the effect of television on 
persons in real life and laboratory studies. While the studies 
concluded in 1972 by the National Institute of Mental Health 
(NIMH) concluded that there was a causal relationship between 
viewing violence and behavior primarily among those children 
predisposed to violence, more recent research by NIMH and 
others demonstrates that violent television affects almost all 
children. Dr. Eron stated in his testimony before the Committee 
as follows:
---------------------------------------------------------------------------
    \26\ Among these are studies conducted by the American Medical 
Association, the American Psychological Association, the National 
Institute of Mental Health, the Center for Disease Control, and 
numerous studies by individual researchers.
---------------------------------------------------------------------------
  One of the places violence is learned is on television. Over 
35 years of laboratory and real-life studies provide evidence 
that televised violence is a cause of aggression among 
children, both contemporaneously, and over time. Television 
violence affects youngsters of all ages, both genders, at all 
socio-economic levels, and all levels of intelligence. The 
effect is not limited to children who are already disposed to 
being aggressive, and it is not restricted to the United 
States.\27\
---------------------------------------------------------------------------
    \27\ Oral Testimony of Dr. Leonard Eron on behalf of the American 
Psychological Association, Institute for Social of Michigan before the 
Senate Committee on Commerce, Science, and Transportation, 
Communications Subcommittee, July 12, 1995. (Testimony of Dr. Eron).
---------------------------------------------------------------------------
  While it is perhaps axiomatic that children who become 
violent because of television suffer harm, it is worth noting 
that such children suffer harm in many ways. For example, they 
can become anti-social, distant from others, and unproductive 
members of society, especially if their actions arouse fear in 
other people. They can suffer from imprisonment or other forms 
of criminal punishment if their violence leads to illegal 
behavior.
  Violent behavior may not be the only harm caused by viewing 
violent television. According to the American Psychological 
Association, viewing violence can cause fearfulness, 
desensitization, or an increased appetite for more 
violence.\28\ In other words, as with ``obscenity'' and 
``indecency'', the harm from television violence may result 
simply from viewing violent material, even if no violent 
behavior follows such viewing.
---------------------------------------------------------------------------
    \28\ See, Testimony of Shirley Igo.
---------------------------------------------------------------------------
    ii. Harm to society.--A related compelling Governmental 
interest is the need to protect society as a whole from the 
harmful results of television-induced violent behavior. A child 
who views excessive amounts of television violence is not the 
only person who suffers harm. As Dr. Eron testified, children 
who watch excessive amounts of television when they are young 
are more ``prone to be convicted for more serious crimes by age 
30; more aggressive while under the influence of alcohol; and, 
harsher in the punishment they administered to their own 
children.'' \29\
---------------------------------------------------------------------------
    \29\ Written Testimony of Dr. Eron, p. 2. Dr. Eron further warns 
that ``* * * like secondary smoke effects, * * * don't think that just 
because you have protected your child from the effects of television 
violence that your child is not affected. You and your child might be 
the victims of violence perpetrated by someone who as a youngster, did 
learn the motivation for and the techniques of violence from 
television.'' Written Testimony of Dr. Eron.
---------------------------------------------------------------------------
    iii. Helping parents supervise their children.--In addition 
to the Governmental interests in protecting children and 
society from harm, the courts have also recognized a compelling 
governmental interest in helping parents supervise what their 
children watch on television. In Ginsberg, the Supreme Court 
upheld a New York statute making it illegal to sell obscene 
materials to children. The Court noted that it was proper for 
legislation to help parents exercise their ``primary 
responsibility for [their] children's well-being'' with laws 
designed to aid [in the] discharge of that responsibility.'' 
\30\
---------------------------------------------------------------------------
    \30\ Ginsberg v. New York, 390 U.S. 629, 639 (1968).
---------------------------------------------------------------------------
    iv. Privacy of the home.--The Government's interest in 
protecting the privacy of the home from intrusion by violent 
programming may provide a fourth compelling Governmental 
interest. The Supreme Court has recognized that ``in the 
privacy of the home * * * the individual's right to be left 
alone plainly outweighs the First Amendment rights of an 
intruder''.\31\ The right to privacy in one's home was recently 
used to uphold legislation limiting persons from making 
automated telephone calls to residences and small 
businesses.\32\ Just as subscribers to telephones do not give 
permission to telemarketers to place automated telephone calls, 
the ownership of a television does not give programmers 
permission to broadcast material that is an intrusion into the 
privacy of the home.
---------------------------------------------------------------------------
    \31\ FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978).
    \32\ See, [CITE].
---------------------------------------------------------------------------
            2. The least restrictive means
  Opponents of the legislation argue that the safe harbor 
approach to television violence is not the least restrictive 
means of accomplishing the goals of reducing the exposure of 
children to television violence. Some in the broadcast 
industry, for instance, argue that the industry should be 
trusted to regulate itself to reduce the amount of violence. 
Parents should bear the primary responsibility for protecting 
their children, according to some observers. Others say that 
the warnings and advisories that many programmers now add to 
certain shows are a lesser restrictive means of protecting 
children.
  Under S. 363 a safe harbor would be instituted if the FCC 
does not implement a ratings system that would allow parents to 
block programming based on its violent content. If a content-
based ratings system is not implemented, the safe harbor 
approach would be the least restrictive means of accomplishing 
the government's interest.The ideas forwarded above may, 
indeed, be less restrictive than the safe harbor approach, but they may 
not accomplish the goal of protecting children from violent television. 
If a ratings system cannot be successfully implemented then, it is 
unlikely that the industry will be able to successfully regulate itself 
and parents would be able to successfully monitor the programs their 
children watch on television.
  The problem of children's exposure to violence on television 
is especially acute for residents of inner city neighborhoods. 
According to Gael Davis of the National Council of Negro Women, 
who herself was the victim of a random gunshot by an urban 
youth,

          Violence is the No. 1 cause of death in the African-
        American community * * * [I]n south central [Los 
        Angeles], * * * [t]he environment is permeated with 
        violence. It is unsafe for children to walk to and from 
        school. We have 80 percent latchkey children, where 
        there will be no parent in the home during the 
        afterschool hours when they are viewing the television. 
        The television has truly become our electronic 
        babysitter. \33\
---------------------------------------------------------------------------
    \33\ Testimony of Gael T. Davis, President, East Side Section, 
National Council of Negro Women, Hearing on S. 1383, the Children's 
Protection from Violent Programming Act of 1993, et al. before the 
Senate Committee on Commerce, Science, and Transportation, October 20, 
1993.

    Many children do not have the benefit of parents willing 
and able to monitor the television programming they watch. 
According to William Abbott of the Foundation to Improve 
Television, ``millions of children watch television 
unsupervised--\1/4\ of our children have but a single parent 
(the latch-key kids)''.\34\
---------------------------------------------------------------------------
    \34\ Testimony of William Abbott, President, Foundation to Improve 
Television, before the Committee on Commerce, Science, and 
Transportation, Hearing on Television Violence, July 12, 1995.
---------------------------------------------------------------------------
  As Shirley Igo noted in her testimony before the Committee on 
behalf of the National Parent-Teachers Association, the 
broadcast networks have drastically reduced the amount of 
educational programming for children.

          * * * it was found that in 1980, the three major 
        networks combined were showing 11 hours of educational 
        shows per week, but by 1990 such programming had 
        diminished to less than two hours per week. Yet, there 
        was more non-educational programming targeted at 
        children than ever before. * * * It is clear to the 
        National PTA and should be clear to members of this 
        Committee that if our collective goal is ro reduce 
        violence on television, voluntary efforts by the 
        industry will not get our nation to achieving that 
        goal. \35\
---------------------------------------------------------------------------
    \35\ Testimony of Shirley Igo, National PTA Vice-President for 
Legislation, before the Senate Committee on Commerce, Science, and 
Transportation, July 12, 1995.

    According to the ``strict scrutiny'' test, a regulation 
that limits freedom of speech based on the content must use 
``the least restrictive means to further the articulated 
interest.'' \36\ In the absence of a content based ratings 
system, the safe harbor approach is the only approach that has 
a significant chance of furthering the compelling governmental 
interest in protecting American children from the impact of 
television violence.
---------------------------------------------------------------------------
    \36\ Sable, at 126.
---------------------------------------------------------------------------
    i. Industry self-regulation.--As discussed earlier, the 
television industry has been told to improve its programming by 
Congress for over 40 years. The first Congressional hearings on 
television violence were held in 1952. Hearings were held in 
the Senate in 1954 and again in the 1960's, the 1970's, 1980's 
and 1990's. At each hearing, representatives of the television 
industry testified that they were committed to ensuring that 
their programming was safe and appropriate for children. In 
1972, the Surgeon General called for Congressional action, but 
this call was ignored after the broadcast industry reached an 
agreement with the FCC to restrict violent programs and 
programs unsuitable for children during the ``family hour''.
  There is substantial evidence, however, that despite the 
promises of the television industry, the amount of violence on 
television is far greater than the amount of violence in 
society and continues to increase. According to one study, 
``[s]ince 1955, television characters have been murdered at a 
rate one thousand times higher than real-world victims. Indeed, 
television violence has far outstripped reality since the 
1950s.'' \37\ As noted earlier, the American Academy of 
Pediatrics recorded a threefold increase in the amount of 
violence on television during the 1980's. The most recent 
survey of television in one city found a 41 percent increase in 
two years.
---------------------------------------------------------------------------
    \37\ S. Robert Lichter, Linda S. Lichter and Stanley Rothman, Prime 
Time: How TV portrays American Culture, (Regnery Publishing, Inc., 
Washington, D.C., 1994), p. 275.
---------------------------------------------------------------------------
  The incentives of the television industry can be illustrated 
by a quote from a memo giving directions to the writers of the 
program ``Man Against Crime'' on CBS in 1953:

          It has been found that we retain audience interest 
        best when our stories are concerned with murder. 
        Therefore, although other crimes may be introduced, 
        somebody must be murdered, preferably early, with the 
        threat of more violence to come.\38\
---------------------------------------------------------------------------
    \38\ Quoted in Eric Barnouw, The Golden Age [?], p. ?.

    In December, 1992, the four broadcast networks released a 
common code of conduct that many criticized for being weaker 
than the networks' own code of practices. In any case, the code 
appears to have had little effect on the amount of violence on 
television. In December of 1996, the industry proposed a 
ratings system which has been sharply criticized for being age 
and not content based.
    ii. Warning labels.--Some observers argue that a 
requirement to put warnings or parental advisories before 
certain violent programs would be a less restrictive means of 
satisfying the Government's interest in protecting children. 
The Committee has received no evidence, however, that such 
warnings accomplish the purpose of protecting children.\39\ In 
fact, recent reports indicate a continuing increase in the 
violence on television. Despite the industry's efforts to air 
such advisories on their own initiative, the National Parent-
Teachers Association and the Foundation to Improve Television 
has supported a safe harbor as a more effective approach. 
Indeed, there is some reason to believe that advisories may 
increase the amount of violence on television, if the 
television industry believes that it has provided notice to 
parents to protect itself from criticism. Some observers 
believe that programmers may want a warning label to be placed 
on a program in order to attract viewers.\40\
---------------------------------------------------------------------------
    \39\ The Committee notes that it has received no evidence 
indicating that the warning labels on music records and compact discs 
has reduced the exposure of children to inappropriate lyrics.
    \40\ For example, Ms. Lindsay Wagner, a television actress, 
testified in 1993 that filmmakers sometimes lobby to get an ``R'' 
rating. ``We now have a couple of generations that have been reared on 
violence for fun and many flock to the films with warnings.'' Testimony 
of Ms. Lindsay Wagner, Hearing on S. 1383, the Children's Protection 
from Violent Programming Act of 1993, before the Committee on Commerce, 
Science, and Transportation, p. 81.
---------------------------------------------------------------------------
  Without parental supervision, such warning labels may have 
the opposite effect of increasing the appetite of children for 
violent shows. Further, it is difficult to believe that such 
warnings would be effective in the age of ``channel surfing''. 
Warnings that appear once at the very beginning of a program 
may not be seen by a viewer who does not see the beginning of a 
program.
    iii. Parental responsibility and control technologies.--
Some observers believe that parents should bear the primary 
responsibility for protecting their children from violent 
programming, and a variety of technologies that are now 
available to television consumers can assist parents in 
controlling the programs that their children watch. For several 
reasons, it is not clear that either of these approaches will 
be effective.
  Even when parents are available and concerned about the 
television programs that their children watch, they may not be 
able to monitor their children's television viewing habits at 
all times. According to one survey, 66 percent of homes have 3 
or more television sets, and 54 percent of children have a TV 
set in their own bedrooms. Children often watch television 
unsupervised. In fact 55 percent of children usually watch 
television alone or with friends, but not with their 
families.\41\
---------------------------------------------------------------------------
    \41\ Testimony of William Abbott.
---------------------------------------------------------------------------
  The implementation of the safe harbor approach is contingent 
upon the FCC not implementing a content-based ratings system to 
be used in conjunction with the V-chip. If FCC does not move 
forward with this technology based solution, it is unlikely 
that other technology based solutions will more appropriately 
address the issue of children and television violence. In 
addition, technology based solutions require parents to be able 
to afford to spend money to purchase the new technologies. 
Development of some technologies are also uncertain. The 
developer of the Telecommander technology, for instance, 
received a patent for his television screening device in 1978, 
but has not been able to obtain capital to bring the product to 
market, presumably because of the uncertain demand for the 
product. There are also questions about the ability of parents 
to program the technologies effectively. In many households, 
the children often are more comfortable with the technologies 
than the parents.\42\
---------------------------------------------------------------------------
    \42\ It is worth noting that one of the witnesses at the July 12 
hearing before the Committee had difficulty operating the technology 
that his company had developed. See, Oral Testimony of Mr. Wayne C. 
Luplow, Vice President, Zenith Electronics Corporation, Hearing on 
Television Violence before the Committee on Commerce, Science,and 
Transportation, July 12, 1995.
---------------------------------------------------------------------------

C. Additional issues

            1. Definition of violence
  Some have raised questions about the definition of violence 
in S. 363. Some have criticized the legislation for failing to 
include adefinition; others state that it is inherently 
impossible to craft a definition that would not be ``overbroad'' or 
``vague'' in violation of the constitutional requirements set down by 
the Supreme Court.
  S. 363 adopts the same approach toward ``violent video 
programming'' as Congress has previously adopted for 
``indecency''. Section 1464 of Title 18 prohibits the broadcast 
of indecency but does not contain a definition of the term. In 
1975, the FCC adopted a definition of indecency that the courts 
have found to be proper. While it may be difficult to craft a 
definition that reflects the context of violence, that is not 
overbroad, that is not vague, and that is consistent with the 
research of harm caused to children, these are exactly the 
tasks that the FCC was created to perform. The FCC can hold its 
own hearings, seek comment from the industry and the public, 
review the research in detail in order to come up with a 
definition.
  Some observers cite the case of Video Software Dealers 
Association v. Webster to support the position that legislation 
to restrict violent video is unconstitutional. That case, 
however, concerned a statute that neither contained a 
definition of violence nor delegated the definition to a 
regulatory agency. S. 363, by contrast, does not take effect 
until the FCC issues a definition of violence. In Davis-Kidd 
Books v. McWherter, the court overturned a statue that 
contained a definition of violence that was overly vague. While 
this case demonstrates the difficulty of defining violence, it 
does not stand for the proposition that violence is incapable 
of being defined. If the FCC fails to come up with a definition 
of violent video programming that satisfies constitutional 
scrutiny, the legislation authorizes the FCC to try again until 
it does.
            2. Applicability to cable television and other broadcast 
                    technologies
  Other observers question the constitutionality of restricting 
violence on cable television and other distribution media in 
addition to broadcasting. They note that Red Lion, Pacifica, 
and the line of ACT cases pertained only to broadcasting, not 
to cable or any other form of media.
  There are several responses to this argument. First, the 
``strict scrutiny'' test applies to any content regulation, not 
just those imposed on broadcast stations. The Supreme Court 
has, for instance, applied the ``strict scrutiny'' test to 
telephone communications \43\ and to newspapers \44\. These 
cases indicate that a restriction on violent video programming 
could, potentially, be imposed on any media if it satisfies the 
``strict scrutiny'' test.\45\
---------------------------------------------------------------------------
    \43\ Sable Communications of California, Inc. v. FCC, 492 U.S. 115 
(1989).
    \44\ Tornillo * * *. [CITE]
    \45\ The court in ACT IV states, ``[W]e apply strict scrutiny to 
regulations of this kind [concerning indecency] regardless of the 
medium affected by them * * * ''. ACT IV, at 12.
---------------------------------------------------------------------------
  The court's rationale for subjecting broadcasting to a more 
restrictive treatment includes, the scarcity of broadcast 
frequencies, the pervasive presence of broadcast, and 
accessibility of broadcast to children. In recognizing the 
special status of broadcasting, the Supreme Court, in the 
National Broadcasting Co. and Red Lion cases, concluded that 
due to their ``scarcity,'' broadcast frequencies are not 
available to all who may wish to use them. Therefore, 
regulation is vital to the development of broadcasting.
  The Supreme Court in ACT IV, addressed the pervasive presence 
of broadcast and its accessibility to children. The Court 
stated that:

          First, the broadcast media have established a 
        uniquely pervasive presence in the lives of all 
        Americans. Patently offensive, indecent material 
        presented over the airwaves confronts the citizen, not 
        only in public, but also in the privacy of the home * * 
        * Second, broadcasting is uniquely accessible to 
        children * * * The ease with which children may obtain 
        access to broadcast material * * * amply justifies 
        special treatment of indecent broadcasting.\46\
---------------------------------------------------------------------------
    \46\ Pacifica, at 748-750.

    The ACT IV court further noted that ``broadcast audiences 
have no choice but to ``subscribe'' to the entire output of 
traditional broadcasters.'' \47\
---------------------------------------------------------------------------
    \47\ ACT IV, at 12.
---------------------------------------------------------------------------
  Just as with broadcast television, non-premium cable service 
has grown to have a uniquely pervasive presence in the lives of 
all Americans and is uniquely accessible to children. Over 60 
percent of consumers now receive some form of cable service. 
Because of the ``must-carry'' rules, almost all of these 
subscribers now receive their broadcast signals through their 
cable systems. From the perspective of the viewer, and 
especially children, there is little if any distinction between 
the broadcast programs that come in over the cable system and 
the cable-only programs. Indeed, cable television service has 
become so important a service to the average American that 
Congress has required the rates for cable television to be 
regulated. \48\
---------------------------------------------------------------------------
    \48\ See, the Cable Television Consumer Protection and Competition 
Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (The 1992 Cable Act).
---------------------------------------------------------------------------
  Two more recent cases have indicated that it is permissible 
to regulate other technologies such as cable. The Supreme 
Court, in Denver Area Educational Telecommunications Consortium 
\49\ addressed the constitutionality of Section 10 of the Cable 
Television Consumer Protection and Competition Act of 1992. 
Although the Court struck certain provisions of Section 10, it 
held that Section 10(a), which permits cable operators to 
decide whether or not to broadcast indecent programs on leased 
access channels, is consistent with the First Amendment.
---------------------------------------------------------------------------
    \49\ Denver Area Educational Telecommunications Consortium, Inc. v. 
FCC, 116 S.Ct. 2374 (1996).
---------------------------------------------------------------------------
  In Playboy Entertainment Group, \50\ the District Court of 
Delaware addressed the constitutionality of Section 505 of the 
Telecommunications Act of 1996. The court found that regulating 
cable and the use of the safe harbor approach was 
constitutional. Section 505 requires a cable television 
operator to completely scramble or block audio and video 
portions of any cable channel primarily dedicated to sexually 
explicit programming. If a cable operator is unable to scramble 
or block programming it must establish a safe harbor.
---------------------------------------------------------------------------
    \50\ Playboy Entertainment Group, Inc. and Graff-Pay-per-view Inc. 
v. DOJ and FCC, 945 F.Supp. 772 (1996).
---------------------------------------------------------------------------
  In imposing first amendment limitations on cable, the court 
in Playboy Entertainment Group stated that:

          * * * cable television is a means of communication 
        which is pervasive and * * * [t]he Supreme Court has 
        recognized that cable television is as accessible to 
        children as over-the-air broadcasting, if not more so.

  Moreover, the Supreme Court in its consideration of freedom 
of speech under the First Amendment has recognized the need to 
protect children from sexually explicit material, particularly 
in the context of a pervasive medium. \51\
---------------------------------------------------------------------------
    \51\ Playboy Entertainment Group at pp. 785-786.
---------------------------------------------------------------------------
  The court found the safe harbor approach to be constitutional 
and stated that ``[g]iven the content of adult programming and 
the pervasive nature of cable television, * * * Section 505 is 
an acceptable government response intended to prevent exposure 
of minors to sexually explicit signal bleed.'' \52\
---------------------------------------------------------------------------
    \52\ Playboy Entertainment Group at pp. 789-790.
---------------------------------------------------------------------------
  S. 363 is not intended to apply to premium or pay-per-view 
channels in recognition of the fact that parents have the 
choice to subscribe to these channels on an individual basis. 
This distinction between premium channels and pay-per-view 
programs, on the one hand, and basic or expanded basic packages 
of cable programs, on the other, demonstrates the Committee's 
attempt to balance the rights of children and the legitimate 
rights of parents to watch the programs that they want to 
watch. In this way, the legislation avoids unnecessarily 
interfering with parents' First Amendment rights in order to 
meet the least restrictive means test.

                          Legislative History

  In October 1993, the Senate Commerce Committee held a hearing 
on television violence to consider a variety of legislative 
proposals. Attorney General Janet Reno testified that the 
legislation currently pending before the Committee, including 
S. 1383, the Hollings-Inouye legislation establishing a safe 
harbor for violent programming, would be constitutional. The 
broadcast networks and other industry representatives argued 
that the amount of violent programming was less than in 
previous years. The industry also testified that the industry 
should be given more time to implement its warning labels 
before legislation should be considered.
  On July 11, 1995, the Committee held its second hearing on 
television violence to consider pending measures, including S. 
470, the Hollings' safe harbor legislation. S. 470 (104th 
Congress) is identical to S. 1383 (103rd Congress). The 
Committee subsequently reported S. 470, as introduced, on 
August 10, 1995 by a recorded vote of 16 yeas and 1 nay, with 
two Senators not voting. No further action was taken during the 
104th Congress.
  On February 26, 1997, Senator Hollings with Senators Inouye 
and Dorgan as co-sponsors, introduced S. 363. S. 363 is similar 
to S. 470 but allows the Commission to implement a safe harbor 
if it does not implement a content-based ratings system. On 
February 27, 1997, the Committee held another hearing on 
television violence in which S. 363 was addressed. Groups such 
as the American Psychiatric Association expressed their 
disapproval of the current aged based rating system proposed by 
the industry and noted their preference for a content-based 
ratings system. Kevin Saunders, Professor of Law at the 
University of Oklahoma, testified thatviolent programming could 
arguably be considered obscene or indecent and the safe harbor approach 
is constitutional. \53\
---------------------------------------------------------------------------
    \53\ Testimony of Kevin Saunders, J.D., Ph.D., before the Senate 
Committee on Commerce, Science, and Transportation, February 27, 1997 
at pp. 17 and 7.
---------------------------------------------------------------------------
  On May 1, 1997, the Committee in open executive session and 
by a rollcall vote of 19-1 ordered the bill reported with an 
amendment.

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

               congressional budget office cost estimate

S. 363--Children's Protection from Violent Programming Act

    Summary: CBO estimates that enacting this bill would result 
in new discretionary spending of about $3 million over the 
1998-2002 period, assuming appropriation of the necessary 
amounts. Because the bill would not affect direct spending or 
receipts, pay-as-you-go procedures would not apply. S. 363 
contains intergovernmental and private-sector mandates as 
defined in the Unfunded Mandates Reform Act of 1995 (UMRA). CBO 
estimates that the cost of the intergovernmental mandate would 
not exceed the threshold established in the law. CBO cannot 
determine the costs of complying with the private-sector 
mandate that the bill would impose.
    S. 363 would prohibit the distribution of violent 
programming that cannot be blocked by electronic means in 
broadcast and cable television during the hours of the day when 
children are likely to comprise a substantial portion of the 
viewing audience. The bill would instruct the Federal 
Communications Commission (FCC) to conduct a rulemaking in 
order to define violent programming and determine the hours of 
the day during which violent programming would be prohibited. 
It would require the FCC to repeal the license of any person 
who repeatedly violates the regulations and would instruct the 
FCC to consider compliance with the regulations in its review 
of an application for renewal of a license. Finally, the bill 
would require the FCC to assess the effectiveness of the new 
regulations periodically.
    Estimated cost to the Federal Government: Assuming 
appropriation of the necessary amounts, CBO estimates that 
implementing S. 363 would result in total costs to the FCC of 
about $3 million over the 1998-2002 period. Based on 
information from the FCC, CBO estimates that promulgating the 
rules required by the bill would cost approximately $300,000 in 
1998, primarily for personnel. We estimate thatmonitoring the 
complaints regarding violations of the commission's rules on violent 
programming and reviewing the license applications for compliance would 
cost about $400,000 in fiscal year 1999, $700,000 in fiscal year 2000, 
and slightly less in subsequent years. (The rules on the distribution 
of violent programming would not take effect until mid-1999. Therefore, 
we expect fewer complaints and lower monitoring costs in that year.) In 
addition, CBO estimates it would cost the FCC about $300,000 in fiscal 
year 2000 and $200,000 in fiscal year 2002 to assess the effectiveness 
of the regulations.
    Pay-as-you-go considerations: None.
    Intergovernmental and private-sector impact: S. 363 would 
impose a federal mandate on distributors of video programming, 
such as television networks, broadcast stations, cable 
operators, and satellite broadcast service providers. That 
mandate would primarily fall on the private sector, but would 
also apply to state and local governments that operate public 
television stations. CBO cannot estimate the total costs of 
complying with that mandate because we have no basis for 
predicting the details of regulations that the FCC would be 
required to issue over the next year, or the response to those 
regulations by distributors of video programming, viewing 
audiences and advertisers. The impact on the relatively small 
number of public television stations operated by state or local 
governments or by public universities and colleges would be 
much smaller than the effect on commercial stations. Therefore, 
CBO estimates that the cost of the intergovernmental mandate 
would not exceed the threshold established in UMRA ($50 million 
in 1996, adjusted annually for inflation).
    Background--At the close of 1996, the nation had 1,544 
broadcast television stations that included 1,181 commercial 
stations and 363 public stations. Most of the commercial 
television stations are affiliated with one of the four 
national networks. Advertising revenues of the broadcast 
industry totaled nearly $28 billion in 1995. In addition, there 
are currently approximately 11,200 cable systems with 
advertising revenues in 1995 totaling over $5 billion. 
Providers of satellite broadcast services obtain revenues from 
subscribers.
    The Telecommunications Act of 1996 (Public Law 104-104) 
requires that parents be provided with both programming 
information and a technological tool to block certain 
programming. That act also encourages the video programming 
industry to establish a program rating system and to broadcast 
signals containing these ratings. In addition, the act requires 
that television sets manufactured after February 1998 include a 
V-chip, which would allow viewers to block the display of all 
programs with a common rating. Currently the television 
industry is using such a voluntary rating system based on 
guidelines that consider the age appropriateness and content of 
programs.
    In accordance with the Telecommunications Act, the National 
Association of Broadcasters, the National Cable Television 
Association, and the Motion Picture Association of American 
have submitted this voluntary rating system to the FCC for 
approval. If the FCC does not accept the industry's rating 
system, it is required by law to prescribe guidelines and 
recommendations for a mandatory rating system.
    Mandate--S. 363 would make it unlawful for any person to 
distribute to the public any violent video programming that is 
not blockable by electronic means during hours when children 
are reasonably likely to comprise a substantial portion of the 
audience. The FCC would be required to define violent 
programming and to determine the hours of the day during which 
violent programming would be prohibited. Distributors of video 
programming would be required to encode any programming 
telecast during prescribed hours that contains violent content 
as defined by the FCC. Premium and pay-per-view cable 
programming would be exempt. In addition, the FCC could exempt 
some programming, such as news and sports programs. The 
commission would have to issue final regulations within nine 
months of the enactment date and they would go into effect one 
year from that date.
    According to representatives of the television industry, 
compliance with S. 363 would most likely involve the creation 
of a new rating category and the insertion of the appropriate 
code to electronically block violent programs during prohibited 
hours. Alternatively, programs could be shifted to unrestricted 
time slots, or program content could be altered.
    Compliance Costs--Based on industry estimates of the direct 
costs of establishing the current voluntary system, CBO expects 
that the incremental costs of creating and applying the 
proposed violent contentcode would be relatively small. 
Satellite operators and local commercial stations could experience 
significant costs if single-feed networks that transmit programs to all 
time zones simultaneously choose not to encode programs based on 
eastern time zone viewing hours.
    By far the greatest potential cost would be a loss of 
advertising revenues. Such losses could result if encoding 
programs with a signal that allows programs to be blocked 
electronically, shifting hours of transmission, or changing 
programming content alters viewership. However, CBO cannot 
estimate the impact on advertising revenues because there is no 
basis for predicting the specifics of the FCC's regulations, 
the distributors' response to those regulations, or the market 
response to those changes.
    Such losses would fall most heavily on broadcast television 
stations. Depending on the FCC's definition of violence and the 
consumers' purchases of televisions equipped with a V-chip or 
converter boxes, the loss of advertising revenue could be 
significant. The losses of advertising revenues would only have 
to total 0.3 percent of total industry revenues (over $33 
billion) in order for the total cost of this mandate to exceed 
the statutory annual threshold for private-sector mandates 
($100 million in 1996, adjusted annually for inflation). It is 
possible, however, that if under current law, the FCC rejects 
the industry's voluntary rating system and imposes a system 
based more on content, the incremental cost of this mandate 
would be significantly less than that.
    Intergovernment Mandate Costs.--The bill's requirements 
would apply to public television stations operated by state and 
local governments. According to the Corporation for Public 
Broadcasting, state and local governments operate about one-
third of the 363 public television stations. In addition, 
universities and colleges, many of them public, operate another 
85 of these stations.
    As with commercial stations, CBO estimates the direct costs 
of creating and applying the proposed violent content code 
would be small. It is possible, however, that the response of 
these publicly-owned television stations to the bill's 
requirements could alter the viewership of their programs. This 
could in turn decrease the revenues these stations receive from 
corporate sponsorships of programs. Because corporate 
underwriting represents a relatively small portion of these 
stations' revenues, CBO expects that any decrease in revenues 
would not exceed the annual threshold for intergovernmental 
mandates established in UMRA ($50 million in 1996, adjusted 
annually for inflation).
    Estimate prepared by: Federal costs: Rachel Forward; Impact 
on State, local, and tribal governments: Pepper Santalucia; 
Impact on the private sector: Jean Wooster.
    Estimate approved by: Robert A. Sunshine, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported.
  The primary impact of this legislation will be on the 
television networks, broadcast stations, and cable programmers 
insofar as they must determine when to air certain kinds of 
programming if these entities do not offer content-specific 
ratings. Therefore, if broadcasters provide content-specific 
ratings, then the law will have no impact. For those 
broadcasters and cable programmers that decide against 
providing content-specific ratings, the economic impact is 
likely to be negligible at worst and could be positive. The 
networks and broadcast stations already have standards and 
practices departments that review all programs for their 
content. The legislation would simply require these reviewers 
to add an analysis of the violent content of programs to the 
analyses that they currently conduct. To the extent that 
broadcast and cable programs contain less violence, they are 
more likely to attract additional viewers, especially younger 
children and parents, which will enable the broadcasters and 
cable programmers to sell more advertising time, thus 
increasing the potential revenues of the industry.

                                Privacy

  There will be no impact on personal privacy as a result of 
this legislation.

                               Paperwork

  The paperwork resulting from this legislation will be 
primarily due to the initial proceeding to define violent 
programming and determine the hours of the day during which 
violent programming would be prohibited.

                      Section-by-Section Analysis

Section 1. Short title

  This section cites the short title of the reported bill as 
the ``Children's Protection from Violent Programming Act.''

Section 2. Findings

  This section provides Congressional findings.

Section 3. Unlawful distribution of violent video programming

  This section adds a new section 718 to the Communications Act 
of 1934.
  New section 718(a) makes it unlawful for any person to 
distribute to the public any violent video programming not 
blockable by electronic means specifically on the basis of its 
violent content during hours when children are reasonably 
likely to comprise a substantial portion of the audience.
  New section 718(b) requires the FCC to conduct a rulemaking 
proceeding, with the objective of issuing final implementing 
regulations within 9 months after the bill's date of enactment. 
Under the proceeding, the FCC: (1) is authorized to exempt from 
the ban in new section 718(a) certain programming, like news 
and sports, whose distribution does not conflict with the 
objective of protecting children from the negative influences 
of violent video programming; (2) is required to exempt premium 
and pay-per- view cable programming; and (3) is required to 
define the terms ``hours when children are reasonably likely to 
comprise a substantial portion of the audience'' and ``violent 
video programming.''
  New section 718(c) requires the FCC, after notice and 
opportunity for hearing, to immediately revoke the license of 
any person who repeatedly violates the prohibition or the 
implementing regulations.
  New section 718(d) provides that the FCC shall consider a 
licensee's compliance history with respect to the prohibition 
and implementing regulations when acting on the licensee's 
renewal application.

Section 4. Assessment of effectiveness

  This section requires the FCC to assess the effectiveness of 
(1) the prohibition and implementing regulations under new 
section 718 and (2) the video programming ratings and V-chip 
requirements of section 303 of the Communications Act of 1934. 
The FCC is required to report its findings to the Senate 
Committee on Commerce, Science, and Transportation and the 
House Committee on Commerce within 18 months after the 
promulgation of the implementing regulations, and thereafter as 
part of its biennial regulatory review. If the FCC assessment 
determines that the measures taken under new section 718 and 
section 303 are ineffective, the FCC is required to promulgate 
regulations to provide for a safe harbor regardless of whether 
blocking capability theoretically exists.

Section 5. Separability

  This section provides that if any provision of the 
legislation or any provision of an amendment made by the 
legislation, or the application thereof to particular persons 
or circumstances, is held tobe unconstitutional, any remaining 
provisions or the application thereof to other persons or circumstances 
shall be unaffected.

Section 6. Effective date

  This section provides that the prohibition under new section 
718 and regulations promulgated thereunder shall take effect 
one year after the regulations are adopted.

                      Rollcall Votes in Committee

  In accordance with paragraph 7(c) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following description of the record votes during its 
consideration of S. 363:
  At the close of debate on S. 363, the Chairman announced a 
rollcall vote on the bill. On a rollcall vote of 19 yeas and 1 
nay as follows, the bill was ordered reported with an amendment 
to add findings:

        YEAS--19                      NAYS--1
Mr. McCain                          Mr. Brownback \1\
Mr. Stevens
Mr. Burns
Mr. Gorton
Mr. Lott
Mrs. Hutchison
Ms. Snowe
Mr. Ashcroft
Mr. Frist\1\
Mr. Abraham
Mr. Hollings
Mr. Inouye\1\
Mr. Ford
Mr. Rockefeller
Mr. Kerry\1\
Mr. Breaux
Mr. Bryan\1\
Mr. Dorgan
Mr. Wyden

    \1\ By proxy

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, changed in existing law made by the bill, 
as reported, are shown as follows (existing law proposed to be 
omitted is enclosed in black brackets, new material is printed 
in italic, existing law in which no change is proposed is shown 
in roman):

                       COMMUNICATIONS ACT OF 1934

SEC. 718. UNLAWFUL DISTRIBUTION OF VIOLENT VIDEO PROGRAMMING NOT 
                    SPECIFICALLY BLOCKABLE BY ELECTRONIC MEANS.

  (a) Unlawful Distribution.--It shall be unlawful for any 
person to distribute to the public any violent video 
programming not blockable by electronic means specifically on 
the basis of its violent content during hours when children are 
reasonably likely to comprise a substantial portion of the 
audience.
  (b) Rulemaking Proceeding.--The Commission shall conduct a 
rulemaking proceeding to implement the provisions of this 
section and shall promulgate final regulations pursuant to that 
proceeding not later than 9 months after the date of enactment 
of the Children''s Protection from Violent Programming Act. As 
part of that proceeding, the Commission--
          (1) may exempt from the prohibition under subsection 
        (a) programming (including news programs and sporting 
        events) whose distribution does not conflict with the 
        objective of protecting children from the negative 
        influences of violent video programming, as that 
        objective is reflected in the findings in section 
        551(a) of the Telecommunications Act of 1996;
          (2) shall exempt premium and pay-per-view cable 
        programming; and
          (3) shall define the term ``hours when children are 
        reasonably likely to comprise a substantial portion of 
        the audience'' and the term ``violent video 
        programming''.
  (c) Repeat Violations.--If a person repeatedly violates this 
section or any regulation promulgated under this section, the 
Commission shall, after notice and opportunity for hearing, 
immediately revoke any license issued to that person under this 
Act.
  (d) Consideration Of Violations In License Renewals.--The 
Commission shall consider, among the elements in its review of 
an application for renewal of a license under this Act, whether 
the licensee has complied with this section and the regulations 
promulgated under this section.
  (e) Definitions.--For purposes of this section--
          (1) Blockable by electronic means.--The term 
        ``blockable by electronic means'' means blockable by 
        the feature described in section 303(x).
          (2) Distribute.--The term ``distribute'' means to 
        send, transmit, retransmit, telecast, broadcast, or 
        cablecast, including by wire, microwave, or satellite.

                                 
