[Senate Report 106-509]
[From the U.S. Government Publishing Office]






          CHILDREN'S PROTECTION FROM VIOLENT PROGRAMMING ACT

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                 S. 876




   October 26 (legislative day, September 22), 2000.--Ordered to be 
                                printed


                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
                           WASHINGTON : 2000


       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                       one hundred sixth congress

                             second session

                     JOHN McCAIN, Arizona, Chairman

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

                       Mark Buse, Staff Director

                   Ann H. Choiniere, General Counsel

               Kevin D. Kayes, Democratic Staff Director

                  Moses Boyd, Democratic Chief Counsel

                Gregg Elias, Democratic General Counsel

                                  (ii)


                                                       Calendar No. 953
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-509

======================================================================



 
           CHILDREN'S PROTECTION FROM VIOLENT PROGRAMMING ACT

                                _______
                                

   October 26 (legislative day, September 22), 2000.--Ordered to be 
                                printed

                                _______
                                

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

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 876]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 876) ``A bill to amend the 
Communications Act of 1934 to require that the broadcast of 
violent video programming be limited to hours when children are 
not reasonably likely to comprise a substantial portion of the 
audience'', having considered the same, reports favorably 
thereon and recommends that the bill (as amended) do pass.

                          Purpose of the 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, more than 16,500 people are murdered in the United 
States. One person is killed every 31 minutes. While France has 
a murder rate of 1.1 homicides per 100,000 people, the United 
States has a rate of 6.3. The United States murder rate is four 
times the rate of Europe and 11 times higher than that of 
Japan. 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 various solutions to reduce the extent of this 
problem. Congress first began to examine the link between 
television and violence with hearings in the 1950s. Hearings 
continued throughout the 1960s and early 1970s. The Senate 
Judiciary Committee studied this issue in 1954 and held several 
hearings from 1961 to 1964. Their conclusion was that they had 
``conclusively established a relationship between televised 
crime and violence and antisocial attitudes and behavior among 
juvenile viewers.'' Since the early 1960s, the Senate Commerce 
Committee has held 23 hearings on the subject of media 
violence. 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 responded with promises to regulate itself while at 
the same time urging against Congressional action. In 1975, 
Richard Wiley, then 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 coincided 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.
  In 1990, 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 require a 
waiver of the antitrust laws. Therefore, it was not necessary 
to extend the waiver granted to industry in 1990.
  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 encouraged 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. These proposed age-based ratings came under intense 
and immediate criticism because they failed to identify 
specific content that was violent, was sexual in nature, or 
contained mature dialogue. Thus, the ratings denied parents the 
ability to block individual programs based on objections to the 
specific content of the programs. In response to these 
criticisms, the industry revised its proposed television 
ratings to include content specific information. The National 
Association of Broadcasters, the National Cable Television 
Association, and the Motion Picture Association of America were 
the principal groups behind these revisions. As revised, the 
new ratings retained the original age-based categories, and 
added four content categories to help viewers identify violence 
(V), sexual situations (S), coarse or crude indecent language 
(L), and suggestive dialogue (D).
  On July 8, 1997, eight Senators wrote a Dear Colleague letter 
urging the FCC to approve the revised ratings and ensure that 
those ratings be used in a fashion compatible with the V-chip. 
That letter also urged the Senate to allow ``a substantial 
period of governmental forbearance during which further 
legislation or regulation concerning television ratings, 
content or scheduling should be set aside.'' The signatories to 
this letter were Republicans John McCain, Trent Lott, Conrad 
Burns, Orrin Hatch, and Dan Coats, and Democrats Tom Daschle, 
Patrick Leahy, Carol Moseley-Braun, and Barbara Boxer.
  The FCC adopted an order finding the voluntary ratings system 
to be acceptable on March 12, 1998. The FCC deemed the industry 
to be sufficiently self-regulating despite the resistance to 
the ratings by NBC and Black Entertainment Television (BET). 
NBC refused to use content-specific ratings and relied instead 
on the age-based ratings only; and BET refused to use any 
ratings whatsoever. That remains their practice today.
  In that same order, the FCC required manufacturers to include 
V-chip technology to block objectionable programming in at 
least half of televisions 13 inches or larger by July 1, 1999, 
and in the remaining half by January 1, 2000. The FCC required 
that the technology work specifically with the voluntary 
programming ratings agreed to by industry.
  Subsequent to the FCC's approval of the ratings, a 1998 study 
by the Kaiser Family Foundation found that 79 percent of shows 
with moderate levels of violence are not rated for violence. 
The study further found that while NBC and BET do not rate 
their programs for content, most of the unrated violent 
programming is not on those channels. With respect to 
programming supposedly designed for children, the Kaiser study 
found that no programs rated TV-G receive a V rating for 
violence. Moreover, 81 percent of children's programming 
containing violence did not even receive the FV rating for 
fantasy violence. According to the Kaiser study: ``The bottom 
line * * * is clear. Parents cannot rely on the content 
descriptors, as currently employed, to block all shows 
containing * * * violence. * * * There is still a significant 
amount of `moderate' to `high' level * * * violence in shows 
without content descriptors.'' And, with respect to children's 
programming, the failure to use the `V' descriptor and the rare 
use of the FV descriptor leads to the conclusion that ``there 
is no effective way for parents to block out all children's 
shows containing violence.''
  In April 2000, the Kaiser Family Foundation released a study 
on the actual effectiveness of the V-chip in American homes. 
The study concluded that only 9 percent of parents with 
children aged 2-17 actually owned televisions with V-chips and 
only one third of those families (three percent of all families 
with children) were using the V-chip to block objectionable 
programming. Moreover, the survey indicated that 39 percent of 
parents had never heard of the V-chip.
  Over 200 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.
  S. 876, as reported, the Children's Protection from Violent 
Programming Act, requires the FCC to implement a safe harbor to 
prohibit violent video programming during hours when children 
are reasonably likely to comprise a substantial portion of the 
audience, unless video programming is blockable by electronic 
means based on its content. In addition, S. 876, as reported, 
requires the FCC to institute a safe harbor for all 
programming, blockable or not, if it determines that the V-chip 
and the content specific ratings are not effectively shielding 
children from violence on television. S. 876 adopts a similar 
approach to television violence as that which has been upheld 
for broadcast and cable indecency. The provisions in S. 876 
apply to broadcast television, and cable and satellite 
television (except for premium channels or pay-per-view 
programs).
  If the FCC determines that a safe harbor is to be instituted, 
then restricting the hours when violent video programming is 
shown will be the least restrictive and most narrowly and 
tailored means to achieve the compelling government interest 
and to protect children from violence on television. 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 about 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; (2) 
television violence encourages subsequent violent behavior; and 
(3) ``fosters moral and social values about violence in daily 
life which are unacceptable in a civilized society.'' \1\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
  In 1969, Senator John Pastore, Chairman of the Senate 
Subcommittee on Communications of the 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
  Several more hearings were held after the release of the 
Surgeon General's report in the 1970's. 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 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 Commission'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 as part of a 
pro-family television code.\3\ The Television Code, however, 
fell out of use in the 1980's.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
  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, also 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 
legislation granted an antitrust exemption to permit television 
industry representatives to meet, consider, and jointly agree 
upon implementing voluntary standards that would lead to a 
reduction in television violence. Subsequent to the bill's 
enactment, industry discussions led to the release, in December 
1992, of joint standards regarding the broadcasting of 
excessive television violence. For example, the standards 
stated that ``gratuitous or excessive depictions of violence * 
* * are not acceptable,'' and that ``all depictions of violence 
should be relevant and necessary to the development of 
character, or to the advancement of theme or plot.'' Six months 
later, in June 1993, the networks adopted a policy to warn 
viewers about programs that might contain excessive violence. 
That policy requiredthe following statement to be transmitted 
before and during the broadcasting of violent programs: ``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 believed that 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 Television Improvement Act 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 a 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\ Accordingly, the 
Department of Justice believed that industry members were free 
to meet and develop a ratings standard.
---------------------------------------------------------------------------
    \4\ Letter to Paul Simon, Senator, from Sheila Anthony, Assistant 
Attorney General, DOJ, (November 29, 1993).
---------------------------------------------------------------------------
  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 fails 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 Commerce 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 in 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 age-based ratings proposal to the FCC on January 17, 
1997. After industry updated the ratings to include content 
specific indicators, the FCC approved the ratings system on 
March 12, 1998. In that order, the FCC also required 
manufacturers to install V-chips in half of all televisions 13 
inches or larger by July 1, 1999, and in all televisions by 
January 1, 2000.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

                      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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
  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 45 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\
---------------------------------------------------------------------------
    \7\ Centerwall, Brandon. Television and Violent Crime, Public 
Interest, No.111, Spring 1993. p.56.
---------------------------------------------------------------------------
  In 1982, the National Institute of Mental Health (NIMH) 
produced a new report entitled Television and Behavior: Ten 
Years ofScientific 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\
---------------------------------------------------------------------------
    \8\ The NIMH Report, p.6.
---------------------------------------------------------------------------
  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 eight, 19, and 30. The study 
found that the more the participants watched TV at age eight, 
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.
---------------------------------------------------------------------------
    \9\ Centerwall, p. 3059-3063.
---------------------------------------------------------------------------
  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 APA believes that the 
harm caused by violent television is broader and includes 
fearfulness and callousness:
          (1) Viewing violence increases fear of becoming a 
        victim of violence, with a resultant increase in self-
        protective behaviors and increased mistrust of others.
          (2) 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).
          (3) 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 two 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 
American Psychological Association (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 Cops and Real TV. 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, three of the top four most 
violentchannels 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. More recently, a $3.5 million study 
commissioned by the National Cable Television Association 
(NCTA) indicated that, from 1996 to 1998, the level of 
television violence was relatively constant. That same study, 
however, found that violence is increasing during prime time 
programming (up 14 percent on the Big Four networks, up 7 
percent on independent broadcast stations, and up 10 percent on 
basic cable). Almost every study agrees, moreover, that there 
is a significant amount of violence on television today during 
time periods when children are watching. Moreover, the manner 
in which violence is portrayed on television may be a cause for 
concern. For example, the NCTA study reports that: ``Much of TV 
violence is still glamorized * * * Most violence on television 
continues to be sanitized * * * Less than 20 percent of violent 
programs portray the long-term damage of violence to the 
victim's family, friends, and community * * * Much of the 
serious physical aggression on television is still trivialized 
* * * Very few programs emphasize an anti-violence theme.''
  In addition, as discussed earlier, a 1998 study by the Kaiser 
Family Foundation indicates that 79 percent of shows with 
moderate levels of violence are not rated for violence. The 
study further found that while NBC and BET do not rate their 
programs for content, most of the unrated violent programming 
is not on those channels. With respect to programming 
supposedly designed for children, the Kaiser study found that 
no programs rated TV-G receive a V rating for violence. 
Moreover, 81 percent of children's programming containing 
violence did not even receive the FV rating for fantasy 
violence.

           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 at one time aired 
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 five-year-old in 
Ohio to set his family's mobile home on fire, causing the death 
of his two-year-old sister in 1993. Although MTV denies any 
connection, it subsequently 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 United States 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. They argue further that in some countries the 
introduction of television did not result in increased homicide 
rates.

                    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 has decreased during the last few years.
  In speeches before the Cellular Telecommunications Industry 
Association and the National Association of Broadcasters, Reed 
Hundt, then 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 
byNovember of 1996 that number was down to 6.2 seconds.\10\ 
Time spent on PSAs is being eroded, in part because broadcasters are 
spending more time on commercials and promotions. In 1995 and 1996, for 
example, 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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                       B. Common Television Code

  In December 1992, as previously referenced in this report, 
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 the 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 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 or perhaps in light 
of them, studies demonstrated a significant rise 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.

                 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, consisted of 
six age-based ratings categories, which resemble the Motion 
Picture Ratings System. TV-Y, TV-Y7, TV-G, TV-PG, TV-14, and 
TV-M. The industry responded to the immediate and harsh 
criticism of these ratings by developing additional, specific 
ratings for content.
  The industry ratings system, called the TV Parental 
Guidelines, consists of the following age-based and content 
specific ratings categories. This system was approved by the 
FCC in 1998. The following categories apply to programs 
designed for the children:
          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 two to six. This program 
        is not expected to frighten younger children.
          TV-Y7 Directed to Older Children.--This program is 
        designed for children age seven 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, 
        or may frighten children under the age of seven. 
        Therefore, parents may wish to consider the suitability 
        of this program for their very young children. Note: 
        For those programs where fantasy violence may be more 
        intense or more combative than other programs in this 
        category, such programs will be designated TV-Y7-FV.
  The following categories apply to programs designed for the 
entire audience:
          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 
        contains material that parents may find unsuitable for 
        younger children. Many parents may want to watch it 
        with their younger children. The theme itself may call 
        for parental guidance and/or the program contains one 
        or more of the following: moderate violence (V), some 
        sexual situations (S), infrequent coarse language (L), 
        or some suggestive dialogue (D).
          TV-14 Parents Strongly Cautioned.--This program 
        contains 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 contains one or more of the following: 
        intense violence (V), intense sexual situations (S), 
        strong coarse language (L), or intensely suggestive 
        dialogue (D).
          TV-MA Mature Audience Only.--This program is 
        specially designed to be viewed by adults and therefore 
        may be unsuitable for children under 17. This program 
        contains one or more of the following: graphic violence 
        (V), explicit sexual activity (S), or crude indecent 
        language (L).
  All television programming except for news and sports are 
supposed to be rated according to these guidelines. The ratings 
are assigned in most cases by broadcast and cable networks and 
producers. The ratings are supposed to 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. Ninety percent of all programming now 
contains some encoded ratings which are capable of interacting 
with the V-chip.
  While the ratings group supplies the guidelines and 
explanations to newspapers and other program listings, 
including TV Guide and cable's Preview Channel, many outlets do 
not depict the ratings.

                    VII. 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 in 1997. 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.
  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 and the other bills before the 
Committee at that time were constitutional.\12\
---------------------------------------------------------------------------
    \12\ Testimony of Attorney General Janet Reno, Hearing on S. 1383, 
the Children's Protection from Violent Programming Act of 1993, et al., 
before the Senate Committee on Commerce, Science, and Transportation, 
October 20, 1993, pp. 30, 42.
---------------------------------------------------------------------------
  There are several exceptions to the First Amendment that 
permit government regulation of content. According to a study 
by the Congressional Research Service (CRS),\13\ the Supreme 
Court has allowed Government regulation of obscenity, 
indecency, child pornography, and speech that creates a clear 
and present danger. In addition, CRS notes that the courts 
provide only limited First Amendment protection to commercial 
speech, to defamation, and to speech that can be harmful to 
children. CRS further notes that ``even speech that enjoys the 
most extensive First Amendment protection may be restricted on 
the basis of its content if the restriction passes `strict 
scrutiny'.'' \14\ Finally, CRS notes that the courts will allow 
certain time, place and manner restrictions.
---------------------------------------------------------------------------
    \13\ ``Freedom of Speech and Press: Exceptions to the First 
Amendment'', Henry Cohen, American Law Division, Congressional Research 
Service, April 7, 1992, Revised July 6, 1993.
    \14\ ``Strict scrutiny'' requires the government to show that the 
restriction serves to promote a compelling Governmental interest and is 
the least restrictive means to further the articulated interest. See, 
Sable Communications of California v. Federal Communications 
Commission, 492 U.S. 115, 126 (1989) (Sable).
---------------------------------------------------------------------------
  While no court has ruled specifically on the 
constitutionality of the approach taken by S. 876, there appear 
to be many lines of decisions that would support the 
constitutionality of the safe harbor approach to television 
violence. S. 876 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 a 
regulation of time, place and manner. The following discussion 
focuses on the recent opinions concerning broadcast indecency 
and the strict scrutiny test as examples of the lines 
ofanalysis that appear to support the constitutionality of the safe 
harbor approach. This discussion is not exhaustive, and there may well 
be arguments to justify the legislation which do not appear below.

              A. Safe Harbor under an ACT IV Case Analysis

  A Court of Appeals decision in ACT IV \15\ to uphold the safe 
harbor for broadcast indecency provides, perhaps, the best 
indication that the courts would uphold the safe harbor 
approach for television violence.
---------------------------------------------------------------------------
    \15\ Action for Children's Television, et al. v. FCC, et al., 58 
F.3d 654 (D.C. Cir. 1995) cert. denied 116 S.Ct. 701 (1996).
---------------------------------------------------------------------------
  In 1992, Congress enacted legislation sponsored by Senator 
Robert Byrd to prohibit the broadcast of indecent programming 
during certain hours of the day. The Byrd amendment allowed 
indecent broadcasts between the hours of midnight and 6 a.m., 
except that public broadcast stations that go off the air at 
midnight or before were permitted to air indecent broadcasts as 
early as 10 p.m.\16\
---------------------------------------------------------------------------
    \16\ Congress had already prohibited obscene and indecent 
broadcasts many years earlier. Section 1464 of title 18 of the United 
States Code prohibits the broadcast of any obscene, indecent, or 
profane language by means of radio communication. This section was 
enacted as part of section 326 of the Communications Act of 1934 and 
was moved into title 18 in 1948.
---------------------------------------------------------------------------
  On June 30, 1995, the United States Court of Appeals for the 
District of Columbia, sitting en banc, upheld the 
constitutionality of the Byrd amendment in ACT IV. The court 
found, in a seven to four opinion, that the safe harbor 
approach, also called ``channeling,'' satisfied the two-part 
``strict scrutiny'' test.\17\
---------------------------------------------------------------------------
    \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 ``* * * 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\
---------------------------------------------------------------------------
    \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.
    \21\ ACT IV, at 661.
---------------------------------------------------------------------------
  The court found that the legislation met the second prong of 
the test because it uses the ``least restrictive means'' to 
accomplish that governmental interest. Here, the court noted 
that, in choosing the hours during which indecency would be 
banned, the Government must balance the interests of protecting 
children with the interests of adults. ``The question, then, is 
what period will serve the compelling governmental interests 
without unduly infringing on the adult population's right to 
see and hear indecent material.'' \22\
---------------------------------------------------------------------------
    \22\ ACT IV, at 665.
---------------------------------------------------------------------------
  After reviewing the evidence compiled by the FCC, the court 
upheld the determination that a ban on indecent programming 
during the hours of 6:00 a.m. to 10:00 p.m. satisfied the 
balance and was the least restrictive means. The court noted 
that, to the extent that such a ban affected the rights of 
adults to hear such programming, ``adults have alternative 
means of satisfying their interest in indecent material at 
other hours in ways that pose no risk to minors [such as 
renting videotapes, computer services, audio tapes, etc.].'' 
\23\ The court stated further that, ``[a]lthough the 
restrictions burden the rights of many adults, it seems 
entirely appropriate that the marginal convenience of some 
adults be made to yield to the imperative needs of the young.'' 
\24\
---------------------------------------------------------------------------
    \23\ ACT IV, at 666.
    \24\ ACT IV, at 667.
---------------------------------------------------------------------------
  The reasoning of the court in ACT IV appears to apply equally 
to S. 876. 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 the most stringent test used to 
analyze the constitutionality of a First Amendment challenge. 
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. 876 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 1950's. This Committee alone 
has held 23 hearings over the past three decades on this topic, 
including at least three hearings specifically on the safe 
harbor approach. The Committee has laid extensive groundwork 
for considering the least restrictive means of protecting 
children from violence on television. By contrast, the Byrd 
amendment, the legislation at issue in the ACT IV case, was 
adopted on the Senate floor without any Committee hearings. 
Furthermore, as Chief Judge Edwards of the D.C. Circuit has 
acknowledged twice, there is much stronger evidence that 
viewing violence on television causes harm to children than any 
proposed harm caused by indecency.\25\
---------------------------------------------------------------------------
    \25\ ``There is significant evidence suggesting a causal connection 
between viewing violence on television and antisocial violent behavior. 
. .'' (emphasis in original) ACT IV, Edwards, C.J., dissenting, at 671.
---------------------------------------------------------------------------
  1. The Compelling Governmental Interest.--The Government has 
several compelling interests in protecting children from the 
harmful effects of viewing violence: an interest in protecting 
children from harm, an interest in protecting society in 
general, an interest in helping parents raise their children, 
and an interest in the privacy of the home. Each of these are 
discussed below.
  A. 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. More than 200 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 
Surgeon General 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\ Written Testimony of Dr. Leonard Eron, Professor of Psychology 
and Senior Research Scientist, Institute for Social Research, 
University of Michigan before the Senate Committee on Commerce, Science 
and Transportation, Communications Subcommittee, May 18, 1999.
---------------------------------------------------------------------------
  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. 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.
  B. 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.'' \28\
---------------------------------------------------------------------------
    \28\ Written Testimony of Dr. Eron before the Senate Committee on 
Commerce, Science, and Transportation Communications Subcommittee, July 
12, 1995, 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's July 12, 1995.
---------------------------------------------------------------------------
  C. 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.'' 
\29\
---------------------------------------------------------------------------
    \29\ Ginsberg v. New York, 390 U.S. 629,639 (1968).
---------------------------------------------------------------------------
  D. 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.'' \30\ 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.\31\ 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.
---------------------------------------------------------------------------
    \30\ FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978).
    \31\ Moser v. FCC, (1995, CA9 Or), 46 F3d 970.
---------------------------------------------------------------------------
  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. In addition, 
opponents of legislation urge that the V-chip and the 
television ratings system provide a less restrictive means of 
protecting children.
  The most recent case addressing this issue is United States 
v. Playboy, 120 S. Ct. 1878 (May 22, 2000). In Playboy, the 
Supreme Court invalidated a provision added in the 
Telecommunications Act of 1996 that required cable operators to 
either scramble sexually explicit channels in full, or limit 
programming on such channels to hours when children are not 
likely to be watching. The Court held that the provision was a 
content based restriction. The Court further held that the 
requirements of the provision were not the least restrictive 
means of achieving the government's goal. The Court found that 
another provision in the Telecommunications Act, that required 
cable operators to fully block any channel upon request by a 
subscriber--was a less restrictive alternative. The Court added 
that even if this option was not widely used by cable 
subscribers, the government bears the burden of proving that 
the available alternative is not effective.
  The substitute amendment adapted to S. 876 by the Commerce 
Committee is crafted in part to respond to Playboy. The FCC is 
only directed to implement a safe harbor for violence after it 
determines that the V-chip and ratings system are ineffective 
alternative means of protecting children from television 
violence. Prior to reaching such a determination, the FCC is 
directed to prohibit violent programming that is not 
electronically blockable, i.e. that is not encoded specifically 
with a rating for violence.
  While the Committee cannot predict the outcome of the FCC's 
analysis of the effectiveness of the V-chip and the ratings 
system, the Committee does note that parental supervision alone 
may not sufficiently protect children from violence on 
television. For example, 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.'' \32\
---------------------------------------------------------------------------
    \32\ 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, ``millionsof children watch television 
unsupervised, one-fourth of our children have but a single parent (the 
latch-key kids).'' \33\
---------------------------------------------------------------------------
    \33\ Testimony of William Abbott, President, Foundation to Improve 
Television, before the Committee on Commerce, Science and 
Transportation, Hearing on Television Violence, July 12, 1995.
---------------------------------------------------------------------------
    Under 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.'' 
\34\ As the following discussion explains, in the absence of an 
effective V-chip and 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.
---------------------------------------------------------------------------
    \34\ Sable, at 126.
---------------------------------------------------------------------------
  A. Industry Self-regulation.--As discussed earlier, the 
television industry has been directed 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, and again, this year in 
2000. 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.'' \35\ As noted earlier, the American Academy of 
Pediatrics recorded a threefold increase in the amount of 
violence on television during the 1980's.
---------------------------------------------------------------------------
    \35\ 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.\36\
---------------------------------------------------------------------------
    \36\ Quoted in Eric Barnouw, The Image Empire, p. 23.

    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.
  B. 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.\37\ 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.\38\
---------------------------------------------------------------------------
    \37\ 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.
    \38\ For example, Ms. Lindsay Wagner, a television actress, 
testified in 1993 that film makers 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.
---------------------------------------------------------------------------
  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.
  C. 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 
more than three 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.
  The implementation of the safe harbor approach is contingent 
upon the FCC finding that the content based ratings system, 
when used in conjunction with the V-chip, provides an 
ineffective means of protecting children from television 
violence. If the FCC makes such a determination, 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 such technologies are also uncertain. 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.

                          C. Additional Issues

  1. Definition of Violence.--Some have raised questions about 
the definition of violence in S. 876. Some have criticized the 
legislationfor failing to include a definition; 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. 876 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, and 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.\39\ That case, 
however, concerned a statute that neither contained a 
definition of violence nor delegated the definition to a 
regulatory agency. S. 876, by contrast, does not take effect 
until the FCC issues a definition of violence. In Davis-Kidd 
Books v. McWherter, the court overturned a statute that 
contained a definition of violence that was overly vague.\40\ 
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.
---------------------------------------------------------------------------
    \39\ Video Software Dealer's Association v. Webster, 968 F.2d 684 
(8th Cir. 1992).
    \40\ Davis-Kidd Books v. McWherter, 866 S.W.2d 250 (1993).
---------------------------------------------------------------------------
  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. Court cases indicate 
that a restriction on violent video programming could, 
potentially, be imposed on any media if it satisfies the strict 
scrutiny test.\41\
---------------------------------------------------------------------------
    \41\ The court in ACT IV states, ``[W]e apply strict scrutiny to 
regulations of this kind [concerning indecency] regardless of the 
medium affected by them * * *''. ACT IV, at 12.
---------------------------------------------------------------------------
  The court's rationale for subjecting broadcasting to a more 
restrictive treatment includes, the scarcity of broadcast 
frequencies, the pervasive presence of broadcast, and 
accessibility of broadcast to children. In recognizing the 
special status of broadcasting, the Supreme Court, in the 
National Broadcasting Co. and Red Lion cases, concluded that 
due to their scarcity, broadcast frequencies are not available 
to all who may wish to use them. Therefore, regulation is vital 
to the development of broadcasting.
  The Supreme Court in ACT IV, addressed the pervasive presence 
of broadcast and its accessibility to children. The Court 
stated that:

          First, the broadcast media have established a 
        uniquely pervasive presence in the lives of all 
        Americans. Patently offensive, indecent material 
        presented over the airwaves confronts the citizen, not 
        only in public, but also in the privacy of the home, * 
        * *. Second, broadcasting is uniquely accessible to 
        children * * * The ease with which children may obtain 
        access to broadcast material, * * * amply justifies 
        special treatment of indecent broadcasting.\42\
---------------------------------------------------------------------------
    \42\ 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.'' \43\
---------------------------------------------------------------------------
    \43\ ACT IV, at 12.
---------------------------------------------------------------------------
  Just as with broadcast television, non-premium cable service 
has grown to have a uniquely pervasive presence in the lives of 
all Americans and is uniquely accessible to children. Over 60 
percent of consumers now receive some form of cable service. 
Because of the must-carry rules, almost all of these 
subscribers now receive their broadcast signals through their 
cable systems. From the perspective of the viewer, and 
especially children, there is little if any distinction between 
the broadcast programs that come in over the cable system and 
the cable-only programs. Indeed, cable television service has 
become so important a service to the average American that 
Congress has required the rates for cable television to be 
regulated.\44\ It is the Committee's belief that satellite 
programming will approach cable's influence in the coming 
years, and is therefore regulable under S. 876.
---------------------------------------------------------------------------
    \44\ See, the Cable Television Consumer Protection and Competition 
Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (The 1992 Cable Act).
---------------------------------------------------------------------------
  Two more recent cases have indicated that it is permissible 
to regulate other technologies such as cable. The Supreme 
Court, in Denver Area Educational Telecommunications Consortium 
\45\ 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.
---------------------------------------------------------------------------
    \45\ Denver Area Educational Telecommunications Consortium, Inc. v. 
FCC, 116 S.Ct. 2374 (1996).
---------------------------------------------------------------------------
  In Playboy, the Supreme Court addressed the constitutionality 
of section 505 of the Telecommunications Act of 1996. While the 
court struck down the provisions in question, it did so on the 
grounds that it was not the least restrictive alternative, not 
because Congress cannot regulate content on cable.
  In fact, the District Court opinion in Playboy 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.\46\
---------------------------------------------------------------------------
    \46\ Playboy Entertainment Group, 945 F. Supr. 722 (1996).
---------------------------------------------------------------------------
  S. 876, 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 or satellite 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 was 
similar to S. 470 but allowed 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 age 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 that violent 
programming could arguably be considered obscene or indecent 
and the safe harbor approach is constitutional.\47\
---------------------------------------------------------------------------
    \47\ Testimony of Kevin Saunders, J.D., PH.D before the Senate 
Committee on Commerce, Science and Transportation, February 27, 1997 at 
pp. 17 and 7.
---------------------------------------------------------------------------
  On May 1, 1997, the Committee reported S. 363 with one 
amendment to add findings by a recorded vote of 19 yeas and 1 
nay.
  On April 26, 1999, Senator Hollings introduced S. 876, safe 
harbor legislation that was substantially similar to S. 470 and 
S. 1383, in previous Congresses. The bill is co-sponsored by 
Senators Byrd, Durbin, and Inouye.
  On May 13, 1999, the Committee held its third hearing on 
television violence and safe harbor legislation. Senator 
Hollings' bill, S. 876 was discussed at length, and testimony 
was offered as to the constitutionality of the measure as well 
as the adverse harm to children affected by exposure to 
violence on television.
  On September 20, 2000 the Committee reported S. 876 as 
amended by a recorded vote of 17 yeas, 1 nay, and 1 present.

                            Estimated Costs

  In accordance with paragraph 11(a)(3) of rule XXVI of the 
Standing Rules of the Senate, the Committee states that, in its 
opinion, it is necessary to dispense with the requirements of 
subsection (a)(1) of that paragraph in order to expedite the 
business of the Senate.

                      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:

                      Section-by-Section Analysis


Section 1. Short title

  This Act is entitled the ``Children's Protection from Violent 
Programming Act.''

Sec. 2. Findings

  Expresses the findings made by the Committee in support of 
the legislation.

Sec. 3. Assessment of effectiveness of current ratings system for 
        violence and effectiveness of v-chip in blocking violent 
        programming

  This section directs the Federal Communications Commission to 
assess the effectiveness of measures to require television 
broadcasters and multi channel video programming distributors 
to rate and encode programming that could be blocked by parents 
using the V-chip undertaken under section 715 of the 
Communications Act of 1934, and subsections (w) and (x) of 
section 303 of that Act.
  The FCC is required to report its findings to the Committee 
on Commerce, Science, and Transportation of the United States 
Senate and the Committee on Commerce of the United States House 
of Representatives within 12 months of enactment, and annually 
thereafter.
  If the FCC finds as a result of its ongoing assessment 
responsibilities described above, that the measures referred to 
are insufficiently effective, then the Commission shall 
complete a rulemaking, within 270 days after the date on which 
the Commission makes such a finding, to prohibit the 
distribution of violent video programming during the hours when 
children are reasonably likely to comprise a substantial 
portion of the audience.
  Any term used in this section that is defined in section 715 
of the Communications Act or the regulations issued thereunder, 
has the same meaning as when used in that section or in those 
regulations.

Sec. 4. Unlawful distribution of violent video programming that is not 
        specifically rated for violence and therefore is not blockable

  This section amends title VII of the Communications Act of 
1934 (47 U.S.C. 701 et seq.) in the following manner:
  This section creates a new section 715 under which 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.
  The FCC is directed to conduct a rulemaking and promulgate 
regulations to implement the provisions of this section within 
nine months of enactment.
  In that proceeding, the Commission may exempt programming 
that 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 of 
section 551(a) of the Telecommunications Act of 1996. Such 
exempt programming could include news programs and sporting 
events.
  The FCC is directed to exempt premium and pay-per-view cable 
and direct-to-home satellite programming.
  The FCC is directed to define the term ``hours when children 
are reasonably likely to comprise a substantial portion of the 
audience'' and the term ``violent video programming.''
  The Commission is directed to impose a forfeiture penalty of 
not more than $25,000 on any person who violates this section 
or any regulation promulgated thereunder for each such 
violation. Each day on which such violation occurs is a 
separate violation. If a person repeatedly violates this 
section or any regulation promulgated thereunder, the FCC shall 
after notice and opportunity for hearing, revoke any license 
issued under this Act. Compliance with this section and the 
regulations promulgated thereunder shall be an element for 
consideration by the Commission when it reviews an application 
for renewal of a license under this Act.
  The term ``blockable by electronic means'' means blockable by 
the feature described in section 303(x).
  The term ``distribute'' means to send, transmit, retransmit, 
telecast, broadcast, or cablecast, including by wire, 
microwave, or satellite, but it does not include the 
transmission, retransmission, or receipt of any voice, data, 
graphics, or video telecommunications accessed through an 
interactive computer service as defined in section 230(f)(2) of 
the Communications Act of 1934, which is not originated or 
transmitted in the ordinary course of business by a television 
broadcast station or multi channel video programming 
distributor as defined in section 602(13) of that Act.
  The term ``violent video programming'' as defined by the 
Commission may include matter that is excessive or gratuitous 
violence within the meaning of the 1992 Broadcast Standards for 
the Depiction of Violence in Television Programs, December 
1992.

Sec. 5. Federal Trade Commission study of marketing strategy 
        improvements

  This section requires the Federal Trade Commission to study 
the marketing of violent content by the motion picture, music 
recording, and computer and video game industries to children, 
including the marketing practices improvements described by 
industry representatives at the hearing held by the Senate 
Committee on Commerce, Science and Transportation on September 
13, 2000. The FTC is required to report the results of the 
study, including findings and recommendations, if any, to the 
Senate Committee on Commerce, Science and Transportation, and 
the House Committee on Commerce, within 18 months after 
enactment.

Sec. 6. Separability

  Under this section, if any provision of this Act or any 
provision of an amendment made by this Act, or the application 
thereof to particular persons or circumstances, is found to be 
unconstitutional, the remainder of this Act, or that amendment, 
or the application thereof to other persons or circumstances 
shall not be affected.

Sec. 7. Effective date

  The prohibition contained in section 715 of the 
Communications Act of 1934 (as added by section 2 of this Act) 
and the regulations promulgated thereunder shall take effect 
one year after the regulations are adopted by the Commission.

                      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. 303:
  Senator Hollings offered an amendment in the nature of a 
substitute. By a rollcall vote of 17 yeas and 1 nay, with the 
chairman voting ``present,'' the amendment was adopted:
        YEAS--17                      NAYS--1
Mr. Stevens                         Mr. Brownback
Mr. Burns
Mr. Gorton
Mr. Lott\1\
Mrs. Hutchison
Ms. Snowe
Mr. Frist\1\
Mr. Abraham\1\
Mr. Hollings
Mr. Inouye\1\
Mr. Rockefeller
Mr. Kerry
Mr. Breaux\1\
Mr. Bryan
Mr. Dorgan\1\
Mr. Wyden
Mr. Cleland

    \1\By proxy

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, changes 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


Title VII--Miscellaneous Provisions

           *       *       *       *       *       *       *


SEC. 715. 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 premium and pay-per-view direct-to-home 
        satellite 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) Enforcement.--
          (1) Forfeiture penalty.--The Commission shall impose 
        a forfeiture penalty of not more than $25,000 on any 
        person who violates this section or any regulation 
        promulgated under it for each such violation. For 
        purposes of this paragraph, each day on which such a 
        violation occurs is a separate violation.
          (2) License revocation.--If a person repeatedly 
        violates this section or any regulation promulgated 
        under this section, the Commission shall, after notice 
        and opportunity for hearing, revoke any license issued 
        to that person under this Act.
          (3) 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.
  (d) 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, 
        but it does not include the transmission, 
        retransmission, or receipt of any voice, data, 
        graphics, or video telecommunications accessed through 
        an interactive computer service as defined in section 
        230(f)(2) of the Communications Act of 1934 (47 U.S.C. 
        230(f)(2)), which is not originated or transmitted in 
        the ordinary course of business by a television 
        broadcast station or multichannel video programming 
        distributor as defined in section 602(13) of that Act 
        (47 U.S.C. 522(13)).
          (3) Violent video programming.--The term ``violent 
        video programming'' as defined by the Commission may 
        include matter that is excessive or gratuitous violence 
        within the meaning of the 1992 Broadcast Standards for 
        the Depiction of Violence in Television Programs, 
        December 1992.

                            ADDITIONAL VIEWS

                          Views of Mr. McCain

  S. 876 requires the Federal Communications Commission to 
determine whether the V-chip and content-based rating systems 
protect children from television violence. If the Commission 
finds that the V-chip does not effectively shield children from 
violent programming--regardless of why--then the bill requires 
the Commission to prohibit the delivery of any violent 
programming when children comprise a ``substantial portion'' of 
the audience (i.e. a ``safe harbor'').
  If this safe harbor is activated, then the bill empowers the 
five non-elected Commissioners of the FCC to define both what 
constitutes ``violent [video] programming'' and when such 
content can be seen. The bill notes only that the definition of 
violent video programming may include matter that is 
``excessive'' or ``gratuitous'' within the meaning of the 1992 
Broadcast Standards for the Depiction of Violence in Television 
Programs.
  This legislation deals with a topic of critical importance to 
America and her youth. Our children are exposed to violence 
through many forms of entertainment, including movies, 
television, music and video games. Increasingly, these 
entertainments are trying to attract public attention by ever 
more glorified and gratuitous displays of violence. The effect 
of this increasing exposure to violence is unclear at best and 
recent studies suggest that it may increase some children's 
willingness to resort to violence.
  In addition, other evidence suggests that the effects of 
violent entertainment upon youth may be exacerbated by the 
misconduct of the entertainment industries themselves. 
According to the Federal Trade Commission's recent report on 
the Marketing of Violent Entertainment to Children, companies 
in the motion picture, music and video game industries 
routinely market to children products containing these 
industries' own warnings and ratings of violent content.
  Violence in the media is, therefore, a real and serious 
problem. Equally serious is the problematic behavior of 
entertainment industries that have worked to undercut the 
voluntary controls on violence upon which this country and this 
Congress have long relied.
  Nevertheless, any Congressional action intended to combat 
this serious problem will be ineffective and counterproductive 
unless it can withstand legal scrutiny. Enacting 
unconstitutional legislationwill only delay and impede the 
search for effective solutions to any problem, including this one.
  Unfortunately, this ``safe-harbor'' legislation--no matter 
how well-intended it may be--raises serious and long-standing 
Constitutional concerns. In fact, Congress has repeatedly 
declined to enact violence-based ``safe harbor'' legislation 
because of these Constitutional concerns.
  And for good reason: it is impossible to prospectively define 
``violent'' programming in a way that will not bar the 
transmission of Saving Private Ryan or Schindler's List. For 
example, content featuring murder, suicide, gang violence and 
knife fighting is violent, but does anyone want the FCC to ban 
the broadcast of Romeo and Juliet? Similar difficulties arise 
in trying to define when children are not in the audience or 
how to address Internet ``web-casting'' or streaming video 
links. For these and other reasons, Congress has long concluded 
that laws like this will inevitably violate the First 
Amendment.
  These conclusions are shared by the Administration, and 
indeed, the majority itself. For example, the FTC recognized in 
its report that ``self-regulation of these industries is 
especially important considering the First Amendment 
protections that prohibit government regulation of content in 
most instances.'' \1\
---------------------------------------------------------------------------
    \1\ Report of the Federal Trade Commission: Marketing Violent 
Entertainment to Children, (Sept. 2000)
---------------------------------------------------------------------------
  Similarly, the majority recognizes that ``it may be difficult 
to craft a definition that reflects the context of violence, 
that is not overbroad, that is not vague, and is consistent 
with the research of harm caused to children.'' The majority 
dismisses these difficulties, however, by concluding that 
``these are exactly the tasks that the FCC was created to 
perform.''
  With due respect, I cannot agree. The Federal Communications 
Commission was created to perform tasks that facilitate 
communication among private citizens. But under this bill, the 
FCC would ban communications, regulate the content of speech 
and decree what speech can or cannot be communicated. These are 
not ``exactly the tasks that the FCC was created to perform.'' 
These are the tasks of a Federal Bureau of Censorship, an 
agency that does not, and probably cannot, exist under our 
present Constitution.
  The majority cites no legal authorities that would suggest a 
different conclusion. The majority relies heavily on a Court of 
Appeals decision in Act IV \2\ upholding a safe harbor for 
broadcast indecency, as an indication that this bill's safe 
harbor for violence would be held constitutional. For two 
reasons, its analysis is unpersuasive.
---------------------------------------------------------------------------
    \2\ Action for Children's Television, v. FCC, 58 F.3d 654 (D.C. 
Cir. 1995) cert. denied 116 S. Ct. 701 (1996).
---------------------------------------------------------------------------
  First, the decision in Act IV involved indecency, not 
violence. ``Safe harbor'' requirements have not been extended 
outside the indecency area, and there is no indication that 
courts would be inclined to do so.\3\ To the contrary, the 
Supreme Court has stressed the ``narrowness'' of its approach 
to indecency.\4\ As the Seventh Circuit said in American 
Booksellers Ass'n v. Hudnut, ``violence on television is 
protected speech, however insidious. Any other answer leaves 
the government in control of all of the institutions of 
culture, the great censor of which thoughts are good for 
us''.\5\
---------------------------------------------------------------------------
    \3\ Video Software Dealer's Association v. Webster, 968 F.2d 684 
(8th Cir. 1992).
    \4\ Bolger v. Youngs Drug Products Corp, 463 U.S. 63,74 (1983).
    \5\ American Booksellers Ass'n Inc. v. Hudnut, 771 F.2d 323, 330) 
(7th Cir. 1985) aff'd mem., 475 U.S. 1001 (1986); See also, Winters v. 
New York, 333 U.S. at 510-11 invalidating a state law designed to 
restrict the publication of criminal news magazines focused on stories 
of ``bloodshed, lust or crime.'' ``Though we can see nothing of any 
possible value to society in these magazines, they are as much entitled 
to the protection of free speech as any literature.''
---------------------------------------------------------------------------
  Second, even making the unprecedented assumption that the 
``safe harbor'' analysis of Act IV could be extended from 
indecency to violence, the bill would still be unconstitutional 
given the United States Supreme Court's more recent analysis in 
United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 
1878 (2000). In Playboy Enterprises, the Supreme Court held 
unconstitutional the indecency-based ``safe harbor'' provision 
in Section 505 of the Telecommunications Act of 1996. The Court 
held that a ``safe harbor'' provision serving a compelling 
government interest cannot be upheld unless the government 
shows that no other less restrictive means of control exists. 
Id. at 1886-87.
  The majority reasons that this bill could survive scrutiny 
under Playboy because the bill only directs the FCC to 
implement a safe harbor for television violence if it 
determines that the V-chip is ineffective. But this is the very 
reasoning that Playboy rejected. In Playboy, the government 
tried to justify a safe harbor by arguing that signal bleed 
precluded ``RF'' or baseband scrambling from being effective 
alternative means of controlling the broadcast of indecent 
material. The Court rejected this argument, holding that the 
government cannot justify content-based regulation of indecent 
speech unless it proves that all other less restrictive methods 
of regulation would be ineffective--not just one method.
  Moreover, Playboy is also likely to preclude the FCC from 
finding that the V-chip is an ineffective method of regulation. 
In Playboy, the government claimed that it could restrict 
indecent speech during non-safe harbor hours because some 
parents might choose not to use potentially effective tools 
that are available to them. But the Playboy majority 
emphatically rejected this argument: ``Even upon the assumption 
that the Government has an interest in substituting itself for 
informed and empowered parents, its interest is not 
sufficiently compelling to justify this widespread restriction 
on speech.'' Id. At 1892.
  And these are, of course, only the beginning of the bill's 
constitutional problems. For example, the majority itself 
concedes that this legislation raises concerns that it is so 
impermissibly vague and/or overbroad as to be constitutionally 
infirm. After all, this bill would direct a government agency 
to first define, and then prohibit, the delivery of ``violent 
programming'' for everyone, if it for any reason finds that V-
chip technology is not adequately protecting children.
  The majority argues that this bill is not vague or overbroad 
simply because a federal agency has been charged with defining 
violence and the bill would allow that agency to ``try again'' 
until its definition passes constitutional muster. (Conference 
Report p.22). I see, however, no reason to conclude that the 
FCC has either the technical expertise or even the 
institutional competence to craft a constitutional definition 
of ``violent programming.'' In fact, the majority itself 
appears to have no clear idea what such a definitionmight 
include. Under such circumstances, I respectfully submit that it would 
be inappropriate for this Congress to delegate to non-elected officials 
such fundamental questions about the limits of our legislative power.
  Moreover, there is no indication that the courts would be 
patient with an FCC attempt to adopt a ``try and try again'' 
approach to content-based regulation of speech. Time and again, 
the courts have invalidated attempts to define attempts to 
prohibit violent content--even where the prohibition is aimed 
at the laudable goal of protecting children. For example, in 
Interstate Circuit, Inc. v. City of Dallas, the Supreme Court 
explicitly recognized that ``the permissible extent of 
vagueness is not directly proportionate to, or a function of 
the extent of the power to regulate or control expression with 
respect to children.'' \6\ Moreover, the majority's instruction 
to the FCC that its definition of violence may include 
``excessive'' or ``gratuitous'' violence within the meaning of 
the 1992 Broadcast Standards for the Depiction of Violent 
Television Programs, provides little shield to a constitutional 
challenge. Courts have traditionally held laws designed to 
incorporate industry-based ratings systems to be 
unconstitutional--even where the laws did not attempt to ban 
the rated program, but rather, simply sought to provide special 
licenses or restrict children's access.\7\ Similarly, laws 
attempting to restrict material for ``excessive violence'' have 
also been consistently found to be unconstitutionally vague.\8\
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    \6\ Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 678 
(1968); see also Rushia v. Town of Ashburnham, 582 F. Supp 900,905 (D. 
Mass 1983) ``The fact that a regulation is adopted for the purpose of 
protecting children does not cure vagueness''.
    \7\ Endahl v. City of Kenosha, 317 F. Supp 1133,1135 (E.D. Wisc. 
1970); MPAA v. Specter, 315 F. Supp 824 (E.D.Pa 1970) and Gasgoe, LTD 
v. Newton Township, 699 F. Supp 1092, 1096 (E.D.Pa 1988).
    \8\ See Harry T. Edwards and Mitchell N. Berman, Regulating 
Violence on Television, 89 Northwestern U.L. Rev: 1487 (1995).
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  Indeed, even those who the majority cites to in support of 
their assertion that ``the constitutionality of a safe harbor 
approach for violence could be easier to sustain than for 
indecency'' recognize the constitutional problems this type of 
legislation is likely to face. For example, the minority cites 
to a dissenting opinion of Judge Edwards of the D.C. Circuit, 
``acknowledging that there is much stronger evidence that 
viewing violence on television causes harm to children than any 
proposed harm caused by indecency'' (Committee report p. 17) in 
support of its position. Yet Judge Edwards has written:
  ``When it comes to televised violence, we cannot imagine how 
regulators can distinguish between harmless and harmful violent 
speech, and we can find no proposal that overcomes the lack of 
supporting data * * *'' \9\ ``We cannot imagine how a regulator 
might fix rules designed to ferret out gratuitous violence 
without running the risk of wholesale censorship of television 
programming.'' \10\
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    \9\ Ibid., p. 1565.
    \10\ Ibid., p. 1502.

                                                       John McCain.

                                
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