On Thursday, the FCC issued its Report on violent programming on television, finding that such programming has a negative impact on the well being of children, and suggesting that Congressional action to restrict and regulate such programming would be appropriate. A summary of the findings of the Commission can be found in our firm’s bulletin on the Report, here. As we point out in our bulletin, the Commission did not adopt this report with a united voice, as both Commissioner Adelstein and McDowell expressed concerns about the thoroughness of the report, the practicality and constitutionality of drawing lines between permitted and prohibited violence in programming, and even whether the government is the proper forum for restricting access to such programming or whether this isn’t fundamentally an issue of family and parental control.
The Report suggests that legislative action to restrict violent programming or to channel it to certain time periods might be appropriate as parents are often not home when children watch television, and technological controls, like the V-Chip, are ineffective as parents don’t know that they exist or, if they are aware of the existence of the controls, they don’t know how to activate them. The Commission also suggests that the ratings given to programs are not always accurate. An interesting alternate take can be found in an article in Slate, here, citing a study not mentioned by the FCC finding that parents, even when carefully educated about the V-Chip and its uses, do not use it. This seems to indicate that parents are not as concerned about the issue as is the FCC, and suggests that the real motivation is not restricting what is presented to children, but instead what is available to adults.
The FCC’s Report also has an extensive discussion of how any regulations would define excessively violent programming. We have previously speculated on this issue, here. The Commission’s discussion refers repeatedly to its regulation of indecency as providing a model for regulation of violent programming. The report concludes that a standard which restricts airing of violence that is "patently offensive" would be appropriate, and would meet the FCC’s criteria of being narrow enough to meet judicial precedent on when content can be regulated consistent with the First Amendment, and specific enough for those being regulated to know what is and is not prohibited. Given the issues that have arisen in the indecency context over where lines are drawn (where regulation has a long history), one wonders whether this standard could ever provide sufficient guidance for broadcasters.
In its final sections, the Commission recommends actions that Congress could take. The recommendation includes not only the proposal that Congress take steps to restrict violent programming on broadcast television to specific safe harbors, but it even suggests that cable and satellite TV adopt violence-free tiers, resurrecting Chairman Martin’s interest in a la carte programming where consumers pay only for the programming they want to receive – an issue that is opposed as being unworkable by most cable operators and programmers for many reasons , including the fact that such a system is likely to contribute to less diverse programming as certain niche programming channels may not get enough support in an a la carte world to survive. Certainly tying two controversial issues together would not make any Congressional action easier to pass. In fact, given the constitutional and political issues that will arise from any such attempt – one almost wonders if this whole proposal isn’t just a political move rather than one where regulation is really expected.
In any event, this Report goes to Congress – who will have to take the next steps on any regulatory efforts. In the long run up to next year’s elections, who knows what we will see.