In the next few days, concerns about the protection of children from indecency and violence could lead to a report from the FCC to Congress urging use of the V Chip and other parental controls in devices other than television sets. Remarks several weeks ago by FCC Chair Julius Genachowski suggesting that the FCC might want to look at content regulation beyond the broadcast medium, a view reiterated in an interview yesterday in TV NewsCheck, also suggest that concerns about the exposure of children to indecency and other troubling programming on cable, online and by wireless devices may lead the FCC into unprecedented extensions of its regulation of entertainment content beyond the broadcast media. An article today from Bloomberg News confirms that the FCC will be starting an inquiry to see if the television program ratings should be extended to cable and wireless entertainment services. This extension of Federal regulation to protect children is occurring at the same time that similar concerns are being expressed by state legislatures, including the adoption of a recent law in Maine that effectively prohibits direct marketing to minors.
The report due this week follows a Notice of Inquiry issued by the Commission in March, as required by the Child Safe Viewing Act, legislation passed by Congress. The law required that the FCC solicit public comment on "advanced blocking technology", the next generation of the V Chip, to see if these technologies can and should be extended to video programming other than broadcast television, including online communications, wireless communications (including video delivered to mobile devices), DVRs and other video recorders, DVD players, and cable television. The FCC Notice also asked why the current V Chip has seemingly not been used much by parents. The FCC even asks if rules should be extended to video games – which were not specifically named in the legislation. This would seemingly extend the FCC’s jurisdiction far beyond its current limits. The FCC’s report is due by August 29.
In July, FCC Chairman Genachowski, in remarks delivered to Congress suggested that the Commission should look at adopting rules to protect children from objectionable content on these other platforms, remarks that were repeated in yesterday’s TV NewsCheck interview. As the FCC has never felt that it has jurisdiction over Internet content, and attempts to regulate cable television programming for indecency have met with constitutional problems given the ability to choose whether or not to receive cable programming and the blocking technologies that are already available to restrict such programs. Yet the Commission’s traditional reticence to expand its jurisdiction seems to be breaking down. We have written about Congress’s concern about not only indecency, but also violent programming and unhealthy food. So, with a push from Congress to confer the FCC with power to regulate these areas, we may be looking at an FCC far more willing to regulate or at least examine regulation in these areas
At the same time, the states have been actively looking at regulating the media in some way or another in the name of the protection of children. There have been bills introduced in legislatures around the country, suggesting regulation against unhealthy food ads (which, for the most part, have stalled by definitional issues), and privacy regulations. Our firm recently published an advisory on this new law in Maine (see the Davis Wright Tremaine advisory here) which prohibits all direct marketing to minors under the age of 18, with no exceptions. Apparently, even with parental consent, such marketing is prohibited. While this law may be challenged, until its legality is determined, broadcasters with Kids clubs or frequent listener lists should be careful to insure that all members are 18 or older.
Clearly, concerns about what children see and hear are driving regulatory and legislative activities. Broadcasters and digital media companies need to be alert to these activities, and adjust their programming to respond to any new regulatory requirements.