[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
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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\
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\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.
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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.
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\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).
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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.
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\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.
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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\
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\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.
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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\
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\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].
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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\
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\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.
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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\
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\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.
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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\
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\41\ Testimony of William Abbott.
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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\
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\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.
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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\
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\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.
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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\
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\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\
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\47\ ACT IV, at 12.
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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\
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\48\ See, the Cable Television Consumer Protection and Competition
Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (The 1992 Cable Act).
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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.
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\49\ Denver Area Educational Telecommunications Consortium, Inc. v.
FCC, 116 S.Ct. 2374 (1996).
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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.
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\50\ Playboy Entertainment Group, Inc. and Graff-Pay-per-view Inc.
v. DOJ and FCC, 945 F.Supp. 772 (1996).
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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\
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\51\ Playboy Entertainment Group at pp. 785-786.
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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\
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\52\ Playboy Entertainment Group at pp. 789-790.
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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\
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\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.
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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.