**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MB Docket No. 04-261         |
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| Violent Television Programming   | ** |                              |
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| And Its Impact On Children       | *  |                              |
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**REPORT**

**Adopted: April 6, 2007 Released: April 25, 2007**

By the Commission: Chairman Martin, Commissioners Copps, Tate, and
McDowell issuing separate statements; Commissioner Adelstein approving
in part, concurring in part, and issuing a statement.

Table of Contents

Heading Paragraph \#

I. INTRODUCTION 1

II\. the Effects of Viewing Violent Television Programming ON CHILDREN 6

III\. LAW AND POLICY ADDRESSING THE distribution of vIOLENT TELEVISION
PROGRAMMING 21

IV\. Defining Violent or Excessively or Gratuitously Violent Programming
38

V. CONCLUSIONS AND RECOMMENDATIONS 45

VI\. Ordering clauses 50

APPENDIX: List of Commenters

# INTRODUCTION

1.  Television is an integral part of the lives of American families. An
    average American household has the television set turned on 8 hours
    and 11 minutes daily,[^1] and children watch on average between two
    and four hours of television every day.[^2] Depending on their age,
    one to two thirds of children have televisions in their
    bedrooms.[^3] By the time most children begin the first grade, they
    will have spent the equivalent of three school years in front of the
    television set.[^4]

2.  Violent content in television programming has been a matter of
    private and governmental concern and discussion almost from the
    beginning of television broadcasting.[^5] A broad range of
    television programming aired today contains such content, including,
    for example, cartoons, dramatic series, professional sports such as
    boxing, news coverage, and nature programs. The public is concerned
    about the amount of violent television programming available to
    children, with many urging action to restrict such content.[^6]

3.  It is within this context that the Commission received a request
    from thirty-nine members of the U.S. House of Representatives asking
    us to undertake an inquiry on television violence.[^7] In response,
    the Commission issued a *Notice of Inquiry* ("*NOI*")[^8] in this
    proceeding, seeking public input on a variety of matters tied to the
    issue of violent television content. The Commission has received
    hundreds of filings from interested parties and individuals.

4.  The House members asked the Commission to solicit comment on three
    essential issues:

-   What are the negative effects on children caused by the cumulative
    > viewing of excessively violent programming?

-   What are the constitutional limits on the government's ability to
    > restrict the broadcast of excessively violent programming when
    > children are likely to be a significant or substantial part of the
    > viewing audience? In particular, could television violence
    > regulations, including possible time channeling requirements, be
    > narrowly tailored to the governmental interests they are intended
    > to serve?

-   Is it in the public interest for the government to adopt a
    > definition of "excessively violent programming that is harmful to
    > children," and could the government formulate and implement such a
    > definition in a constitutional manner?

5.  *Summary.* In the *NOI*, the Commission sought comment on the
    relationship between media violence and aggression in children. In
    this *Report*, we find that there is deep concern among many
    American parents and health professionals regarding harm from
    viewing violence in media. We also agree with the views of the
    Surgeon General that there is strong evidence that exposure to
    violence in the media can increase aggressive behavior in children,
    at least in the short term. In the *NOI*, the Commission sought
    comment on proposals aimed at regulating violent television content,
    such as a "safe harbor" period similar to the one in place for
    indecent broadcast content. In this *Report*, we recognize that
    violent content is a protected form of speech under the First
    Amendment, but note that the government interests at stake, such as
    protecting children from excessively violent television programming,
    are similar to those which have been found to justify other
    content-based regulations. In the *NOI*, the Commission asked
    questions concerning the adequacy of current program blocking
    technology and the effectiveness of the TV ratings system in helping
    parents control access to violent programming. In this *Report*, we
    find that although the V-chip and TV ratings system appear useful in
    the abstract, they are not effective at protecting children from
    violent content for a number of reasons. In particular, we find that
    the TV ratings system has certain weaknesses that prevent parents
    from screening out much programming that they find objectionable. In
    the *NOI*, the Commission asked how the government might define
    "violence" for regulatory purposes. In this *Report*, we recognize
    the difficulties associated with drafting a concise and legally
    sustainable definition of violence for regulatory purposes, but we
    suggest an approach that Congress may want to consider in crafting a
    definition. Finally, we note our conclusion that, given the findings
    in this report, action should be taken to address violent
    programming and suggest that Congress could implement a
    time-channeling solution that would more effectively protect
    children from violent programming and/or mandate other forms of
    consumer choice that would better support parents' efforts to
    safeguard their children from exposure to violent programming.

# the Effects of Viewing Violent Television Programming ON CHILDREN

6.  We agree with the views of the Surgeon General and find that, on
    balance, research provides strong evidence that exposure to violence
    in the media can increase aggressive behavior in children, at least
    in the short term.[^9] Over the course of several decades,
    considerable research has been undertaken to examine television's
    impact on children's learning and behavior.[^10] Three types of
    studies are generally described in the literature: (1) field
    experiments in which subjects are shown video programming and their
    short-term post-viewing behavior is monitored by researchers; (2)
    cross-sectional studies involving samples of individuals whose
    conduct is correlated with the amount and type of their television
    viewing; and (3) longitudinal studies that survey the same group of
    individuals at different times over many years to determine the
    effects of television viewing on subsequent behavior.[^11] Through
    these studies, scholars have attempted to establish a
    cause-and-effect relationship between viewing violent content and
    subsequent aggression in children.

7.  The researchers have focused on three possible harmful effects: (1)
    increased antisocial behavior, including imitations of aggression or
    negative interactions with others, (2) increased desensitization to
    violence, and (3) increased fear of becoming a victim of
    violence.[^12] Researchers have theorized that children's viewing of
    violent television programming may affect later behavior in three
    ways: (1) through observing schemas about a hostile world, (2)
    through scripts for social problem solving that focus on aggression,
    and (3) through normative beliefs that aggression is acceptable.
    Alternatively, exposure to violent programming may desensitize the
    child's innate negative emotional response to violence, thus making
    aggressive acts easier to commit or tolerate.[^13] While the
    Commission sought evidence relating to such research, very little
    new information on the issue was submitted into the record of this
    proceeding.

8.  Some studies find evidence of a cause-and-effect relationship
    between viewing televised violence by children and aggression or
    other changes in the behavior of the children on both a short-term
    and a longer-term basis.[^14] For example, Craig Anderson, a
    professor and former chair of the Psychology Department at Iowa
    State University who has conducted and published numerous "media
    harms" studies,[^15] asserts that research on violent television,
    films, video games, and music reveals "unequivocal evidence" that
    media violence increases the likelihood of aggressive and violent
    behavior in both immediate and long-term contexts.[^16] According to
    his analyses and assessments, media violence produces short-term
    effects by "increasing physiological arousal and triggering an
    automatic tendency to imitate observed behaviors," and exposure to
    media violence leads to lasting aggressive behavior and desensitizes
    individuals to actual violence.[^17] Anderson notes that, although
    certain characteristics of viewers (*e.g*., identification with
    aggressive characters), social environments (*e.g*., parental
    influences), and media content (*e.g*., attractiveness of the
    portrayed perpetrator) can influence the degree to which media
    violence affects aggression, "no one is exempt from the deleterious
    effects of media violence."[^18]

9.  Joanne Cantor, a professor at the University of Wisconsin-Madison,
    concurs and states that her research has found that children show
    higher levels of hostility after exposure to media violence -
    ranging from being in a "nasty mood" to an increased tendency to
    interpret a neutral comment or action as an attack.[^19] She also
    asserts that her studies have found that media violence makes
    children fearful, a condition expressed as a general sense that the
    world is dangerous or through nightmares and other sleep
    disturbances.[^20] In congressional testimony, Dale Kunkel, a
    professor at the University of Arizona and an expert in the field of
    media violence, stated, "it is well established by a compelling body
    of scientific evidence that television violence poses a risk of
    harmful effects for the child-viewer."[^21] The Children's Media
    Policy Coalition ("CMPC"), a group consisting of several health and
    child advocacy groups such as the American Academy of Pediatrics,
    argues that certain critics[^22] of the "cause and effect theory"
    have mischaracterized the numerous studies by limiting the question
    to whether or not "watching violence on television causes watchers
    to commit violence."[^23] According to CPMC, the conclusion is not
    that media violence is the sole cause of aggression in children, but
    that the depiction of violence in media is one factor potentially
    contributing to the risk that children will suffer a number of
    harmful effects. Thus, there is a considerable research community
    that has studied television's effects on children's health over an
    extended period of time and defends the proposition that viewing
    this programming has adverse consequences for the child audience.

10. The *Notice of Inquiry* in this proceeding referenced two recent
    significant efforts to summarize the state of the evidence regarding
    the effects of televised violence on children. A review of the
    scientific research, which appears as part of the Federal Trade
    Commission's report on *Marketing Violent Entertainment to
    Children,* summarized the research as follows:

> A majority of the investigations into the impact of media violence on
> children find that there is a high *correlation* between exposure to
> media violence and aggressive and at times violent behavior. In
> addition, a number of research efforts report that exposure to media
> violence is correlated with increased acceptance of violent behavior
> in others, as well as an exaggerated perception of the amount of
> violence in society. Regarding *causation*, however, the studies
> appear to be less conclusive. Most researchers and investigators agree
> that exposure to media violence alone does not cause a child to commit
> a violent act, and that it is not the sole, or even necessarily the
> most important, factor contributing to youth aggression, anti-social
> attitudes, and violence. Although a consensus among researchers exists
> regarding the empirical relationships, significant differences remain
> over the interpretation of these associations and their implications
> for public policy.[^24]

Others agree that while studies show a correlation, a clear causal link
has not been conclusively proven.[^25] More recently, researchers at
Boston Children's Hospital report that violent shows might teach and
encourage aggressive behavior in children, which in turn isolates them
from their peers. Like the *FTC Report*, the study shows a correlation,
but does not prove causation.[^26]

11. A Joint Statement by the American Academy of Pediatrics, American
    Academy of Child & Adolescent Psychiatry, American Academy of Family
    Physicians, American Medical Association, American Psychological
    Association, and American Psychiatric Association summarized the
    effects of violence as follows:

-   Viewing violence can lead to emotional desensitization towards
    violence in real life.

-   Children exposed to violent programming at a young age have a higher
    tendency for violent and aggressive behavior later in life than
    children who are not so exposed.

-   Children exposed to violence are more likely to assume that acts of
    violence are acceptable behavior.

-   Viewing violence increases fear of becoming a victim of violence,
    with a resultant increase in self-protective behaviors and a
    mistrust of others.[^27]

12. The United States Surgeon General's *Youth Violence: A Report of the
    Surgeon General* also summarized the research in this area:

> In sum, a diverse body of research provides strong evidence that
> exposure to violence in the media can increase children's aggressive
> behavior in the short term. Some studies suggest that long-term
> effects exist, and there are strong theoretical reasons why this is
> the case. But many questions remain regarding the short- and long-term
> effects of media violence, especially on violent behavior. Despite
> considerable advances in research, it is not yet possible to describe
> accurately how much exposure, of what types, for how long, at what
> ages, for what types of children, or in what types of settings will
> predict violent behavior in adolescents and adults.[^28]

13. Research since these reports were issued seems to be consistent with
    much of the prior research. One more recent effort, subsequent to
    the *Surgeon General* and *Federal Trade Commission* *Reports*,
    attempts to carefully track a specific child population from 1977 to
    1992 in order to correlate viewing of violent television with
    subsequent aggression.[^29] This longitudinal study supports the
    oft-stated conclusion that the effect of childhood exposure to media
    violence lasts into adulthood and increases aggressive behavior.
    While acknowledging that "longitudinal non-experimental data do not
    provide a strong test of causation," the paper concludes that the
    structural models used

> show that for both boys and girls, habitual early exposure to TV
> violence is predictive of more aggression by them later in life
> independent of their own initial childhood aggression, their own
> intellectual capabilities, their social status as measured by their
> parents' education or their father's occupation, their parents' TV
> viewing habits (including violence viewing), and their parents'
> rejection, nurturance, and punishment of them in childhood.[^30]

14. Two additional specific areas of research warrant particular
    mention. As was noted in the *NOI*, magnetic resonance imaging
    ("MRI") brain mapping techniques are being developed to measure
    directly specific changes in brain function as a consequence of
    children's exposure to media violence.[^31] The Center for
    Successful Parenting ("CSP") commented that it had directly
    sponsored academic research to generate objective data concerning
    the effects of violent media on the development of children and
    adolescents. CSP described this research as focused on the
    relationship and association between the amount of media violence
    exposure and pre-frontal cortical brain function as well as
    aggressive behavior. The accrued data and findings are based on
    functional brain activity using MRI brain-mapping techniques. These
    studies indicated that exposure to media violence directly affects
    the pre-frontal cortex, an area of the brain involved in learning
    and behavior.[^32] CSP's website describes the findings and
    conclusions of the research. Among other things, the researchers
    found that "\[n\]ormal adolescents who had a higher level of violent
    media exposure had reduced levels of cognitive brain function" and
    that "\[a\]ggressive behavior can be associated with higher levels
    of violent media exposure," and "\[a\]ggressive adolescents show
    less cognitive brain activity than normal adolescents do." The
    researchers concluded that "\[t\]here is a correlation between the
    degree of exposure to television/movie violence and violence in
    video games and normal brain function."[^33]

15. The second area of new research involves differentiating among types
    of violent programming content and the context in which violence
    appears. Many television violence studies have used a single
    definition of violence that does not differentiate among types of
    violence or how violence is depicted in context. A more recent
    effort has paid greater attention to context. A study performed by
    Barbara Wilson, a professor at the University of Illinois, and her
    research colleagues identified eight contextual factors thought to
    be important in determining the likely impact of violence on both
    child and adult viewers.[^34] Further research by Wilson indicates
    that programs targeted to children contain more violence than do
    other types of programming. The violence itself is just as likely to
    be glamorized in children\'s as in non-children\'s shows, but it is
    even more sanitized and more likely to be trivialized. According to
    Wilson, these patterns heighten the risk of viewers learning
    aggression and becoming desensitized from such portrayals.[^35]

16. Others argue, however, that children are not necessarily harmed by
    exposure to television violence or that the research on the topic is
    flawed or inconclusive.[^36] The Media Coalition, a group of trade
    associations representing book and magazine publishers, along with
    movie, recording and video manufacturers and retailers, disputes
    that research supports the conclusion that violence in the media
    causes actual violence. In support of this view, they contend that
    the existing research is inconclusive and that there is no
    correlation between media violence and actual crime statistics.[^37]
    The Media Associations, a group consisting of advertising,
    broadcast, and television production entities, have examined the
    studies on media violence and assert that the literature does not
    support either the claim of a causal relationship between media
    violence and aggression or the proposition that exposure to violent
    media leads to desensitization.[^38] The Media Associations assert
    that research findings often are mischaracterized, and, in some
    cases, reach conclusions that are the opposite of what has been
    reported. To support their claims, the Media Associations note that
    Jonathan Freedman, a professor at the University of Toronto and
    critic of the media violence cause-and-effect theory,[^39] conducted
    a comprehensive review of all of the available research on this
    topic and concluded that "evidence does not support the hypothesis
    that exposure to film or television violence causes children or
    adults to be aggressive." [^40]

17. Freedman reviewed each relevant media violence study and classified
    it as: (1) supporting the causal hypothesis, (2) failing to support
    the causal hypothesis, or (3) yielding mixed results. Freedman
    reviewed laboratory experiments, field experiments, and longitudinal
    studies, finding problems with each method. For example, laboratory
    experiments are short term, involve only brief exposures to
    pro­grams, use measures of aggression that are often questionable,
    and are conducted in an artificial environment, thereby increasing
    the effect of "experimenter demand."[^41] Freedman considered field
    experiments to be the best test of the hypothesis because they are
    done in natural settings and therefore avoid many of the problems of
    the laboratory research.[^42] According to Freedman, the fact that
    the field experiments produced negative results for the causal
    hypothesis is a strong indication that laboratory results are not
    due to the direct effect of violent media.[^43] Freedman concluded
    that the evidence from longitudinal studies provides little support
    for the causal hypothesis and, instead, could be interpreted as
    evidence against that hypothesis.[^44]  But CMPC attacks Freedman's
    conclusions, stating that he has never conducted empirical research
    on the effects of media violence. Their comments also note that
    Freedman has been paid by parties (such as the motion picture
    industry) with a vested interest in the outcome of such
    studies.[^45]

18. Michael Males, at the University of California-Santa Cruz,[^46]
    critiques those studies that have reported a positive link or
    correlation between media violence and aggression in children. He
    asserts that there are a number of reasons why occasional positive
    results do not support the hypothesis that media violence has
    adverse real-world effects. First, he states that studies showing a
    "statistically significant" link between violent entertainment and
    aggressive behavior do not mean that the link exists for most, or
    even a substantial minority of, individuals. That is,
    "\[s\]ignificant" in the statistical sense "does not mean
    'important;'" it means simply "not likely to happen just by
    chance."[^47] Second, he states that researchers have used vastly
    different examples of violent content in the cartoons, film clips,
    or games that they study.[^48] He concludes that generalizations
    about all violence from these differing examples are not trustworthy
    and fail to account for the many different contexts in which works
    of art or entertainment present violence. Third, he states that
    experimenters have not always made their nonviolent video clips
    equivalent to their violent ones with respect to other variables,
    such as general level of interest among children.[^49] Fourth, he
    states that aggressive attitudes or "cognition" are not the same as
    aggressive behavior. Males asserts that proxies for aggression in
    lab experiments range from dubious (*e.g.*, making noise blasts;
    hitting "Bobo dolls;" "killing" characters in a video game) to
    ludicrous (*e.g.*, popping balloons).[^50] Finally, he states that
    aggressive play, whether in a lab or in the real world, is far
    different from real aggression intended to hurt another person.
    According to Males, aggressive play provides a socially approved
    outlet for impulses that otherwise might take dangerous forms.[^51]

19. Another study, undertaken for the Government of New Zealand,
    reported that "\[w\]hat cannot be shown definitively is that
    television violence on its own is the cause of anti-social or
    violent behavior . . . \[it\] is one potentially important element
    in a web of factors and influences associated with such behavior and
    for some individuals it may promote or increase the power of these
    other factors."[^52]

20. Given the totality of the record before us, we agree with the view
    of the Surgeon General that: "a diverse body of research provides
    strong evidence that exposure to violence in the media can increase
    children's aggressive behavior in the short term." At the same time,
    we do recognize that "many questions remain regarding the short- and
    long-term effects of media violence, especially on violent
    behavior."[^53] We note that a significant number of health
    professionals, parents and members of the general public are
    concerned about television violence and its effects on
    children.[^54]

# LAW AND POLICY ADDRESSING THE distribution of vIOLENT TELEVISION PROGRAMMING

21. Members of Congress asked the Commission to address the government's
    authority, consistent with the First Amendment, to restrict the
    broadcast or other distribution of excessively violent programming
    and what measures to constrain or regulate such programming are most
    likely to be sustained in court.[^55] Accordingly, we discuss below
    regulatory alternatives for protecting children from violent
    television content. We begin, however, with a brief overview of the
    relevant constitutional framework.

22. Violent speech and depictions of violence have been found by the
    courts to be protected by the First Amendment.[^56] However, "each
    medium of expression presents special First Amendment problems,"
    with broadcasting historically receiving "the most limited First
    Amendment protection."[^57] Thus, even when broadcast speech "lies
    at the heart of First Amendment protection," the government may
    regulate it so long as its interest in doing so is "substantial" and
    the restriction is "narrowly tailored" to further that
    interest.[^58] While a restriction on the content of protected
    speech will generally be upheld only if it satisfies strict
    scrutiny, meaning that the restriction must further a compelling
    government interest and be the least restrictive means to further
    that interest, this exacting standard does not apply to the
    regulation of broadcast speech.

23. In the realm of indecency, the U.S. Supreme Court has identified two
    principal reasons for the reduced First Amendment protection
    afforded to broadcasting: first, its "uniquely pervasive presence in
    the lives of all Americans;" and second, its accessibility to
    children, coupled with the government's interests in the well-being
    of children and in supporting parental supervision of children.[^59]
    In light of these characteristics, the Court, in *Pacifica*,[^60]
    upheld the Commission's authority to regulate the broadcast of
    indecent material. Relying on *Pacifica*, the U.S. Court of Appeals
    for the District of Columbia Circuit later concluded in *ACT III*
    that the "channeling" of indecent content to the hours between 10:00
    p.m. and 6:00 a.m. would not unduly burden First Amendment
    rights.[^61] It held that such regulation would promote the
    government's "compelling interest in supporting parental supervision
    of what children see and hear on the public airwaves." It also noted
    that it is "evident beyond the need for elaboration" that the
    government's "interest in safeguarding the physical and
    psychological well-being of a minor is compelling."[^62] In
    addition, in light of relevant U.S. Supreme Court precedent, the
    D.C. Circuit refused in *ACT III* to insist on scientific evidence
    that indecent content harms children, concluding that the
    government's interest in the well-being of minors is not "limited to
    protecting them from clinically measurable injury."[^63]

24. *Time Channeling.* As stated above, members of Congress asked the
    Commission to address possible measures to protect children from
    excessively violent television content. We begin by discussing time
    channeling restrictions that would restrict such programming to
    hours when children are less likely to be in the viewing audience.
    We note that commenters disagreed about the constitutionality of
    such requirements. Pappas argued that they would be likely to pass
    constitutional muster because the government interests are
    substantially the same as those at stake in regulating broadcast
    indecency.[^64] Other commenters maintain that such requirements
    would be unconstitutional and unworkable.[^65]

25. After carefully evaluating these comments and relevant precedent, we
    find that Congress could impose time channeling restrictions on
    excessively violent television programming in a constitutional
    manner. Just as the government has a compelling interest in
    protecting children from sexually explicit programming, a strong
    argument can be made, for the reasons discussed in Section II above,
    that the government also has a compelling interest in protecting
    children from violent programming and supporting parental
    supervision of minors' viewing of violent programming. We also
    believe that, if properly defined, excessively violent programming,
    like indecent programming, occupies a relatively low position in the
    hierarchy of First Amendment values because it is of "'slight social
    value as a step to truth.'"[^66] Such programming is entitled to
    reduced First Amendment protection because of its pervasiveness and
    accessibility to children pursuant to the U.S. Supreme Court's
    reasoning in *Pacifica*.

26. To be sure, the government, when imposing time channeling, would
    have to show that such regulation is a narrowly tailored means of
    vindicating its interests in promoting parental supervision and
    protecting children. In this regard, however, we note that while the
    alternative measures discussed below---viewer-initiated blocking and
    mandatory ratings---would impose lesser burdens on protected speech,
    we are skeptical that they will fully serve the government's
    interests in promoting parental supervision and protecting the
    well-being of minors.[^67] In addition to these measures, as
    discussed below, another way of providing consumers greater control
    -- and therefore greater ability to avoid violent programming --
    could be to require video channels to be offered on an "a la carte"
    basis.[^68] As the D.C. Circuit has noted in the context of
    indecency: "It is fanciful to believe that the vast majority of
    parents who wish to shield their children from indecent material can
    effectively do so without meaningful restrictions on the airing of
    broadcast indecency."[^69] To cite just some of the relevant data,
    81 percent of children ages two through seven sometimes watch
    television without adult supervision,[^70] and 91 percent of
    children ages four through six have turned on the television by
    themselves.[^71] In addition, as discussed below, the studies and
    surveys conducted to date tend to show that blocking technologies
    and the associated TV ratings system are of limited effectiveness in
    supporting parental supervision of minors' viewing habits.

27. Generally, however, the sustainability of time channeling
    restrictions would depend on a number of specific evidentiary
    considerations. Therefore, should Congress wish to adopt time
    channeling restrictions, lawmakers should make specific findings to
    support such restrictions.[^72] Significant issues that Congress may
    wish to address include the nature of the harm to children inflicted
    by violent television content, how to define such content,[^73] and
    the ages of the children that the government is seeking to protect.
    For example, indecent material is channeled to the hours between
    10:00 p.m. and 6:00 a.m. This "safe harbor" is based on evidence
    that children 17 years of age and under are less likely to be in the
    audience during these hours. With respect to violent program
    content, the research suggests that younger children are most at
    risk, possibly requiring a different conclusion as to the ages of
    children to be protected and the appropriate "safe harbor" hours.

28. *Viewer-Initiated Blocking* and *Mandatory Ratings.* Besides time
    channeling, another possible means of protecting children from
    violent television content is to strengthen mechanisms that enable
    viewer-initiated blocking of such content. In 1996, Congress amended
    Title III of the Communications Act to require the incorporation of
    blocking technology into television sets.[^74] As of January 1,
    2000, all television sets manufactured in the United States or
    shipped in interstate commerce with a picture screen of thirteen
    inches or larger must be equipped with a "V-chip" system that can be
    programmed to block violent, sexual, or other programming that
    parents do not wish their children to view.[^75] However, out of a
    total universe of 280 million sets in U.S. households,[^76] only
    about 119 million sets in use today, or less than half, are equipped
    with V-chips.[^77]

29. Based on the studies and surveys conducted to date, we believe that
    the evidence clearly points to one conclusion: the V-chip is of
    limited effectiveness in protecting children from violent television
    content. In order for V-chip technology to block a specific category
    of television programming, such as violent content, it must be
    activated. However, many parents do not even know if the television
    sets in their households incorporate this technology and, of those
    who do, many do not use it. In 2004, the Kaiser Family Foundation
    conducted a telephone survey of 1,001 parents of children ages
    2-17.[^78] The results showed: (1) only 15 percent of all parents
    have used the V-chip; (2) 26 percent of all parents have not bought
    a new television set since January 2000 (when the V-chip was first
    required in *all* sets); (3) 39 percent of parents have bought a new
    television set since January 2000, but do not think it includes a
    V-chip; and (4) 20 percent of parents know they have a V-chip, but
    have not used it.[^79] According to a 2003 study, parents' low level
    of V-chip use is explained in part by parents' unawareness of the
    device and the "multi-step and often confusing process" necessary to
    use it.[^80] Only 27 percent of parents in the study group could
    figure out how to program the V-Chip, and many parents "who might
    otherwise have used the V-Chip were frustrated by an inability to
    get it to work properly."[^81] A March 2007 Zogby poll indicates,
    among other things, that 88 percent of respondents did not use a
    V-chip or cable box parental controls in the previous week, leading
    the Parents Television Council to call the television industry's
    V-chip education campaign "a failure."[^82]

30. In addition to mandating inclusion of V-chip technology in
    television sets, the Act provides cable subscribers with some ways
    to block unwanted programming.[^83] These provisions of the Act,
    however, do not benefit households receiving their television
    programming via over-the-air broadcasting or satellite. Further,
    similar to the V-chip, to take advantage of these measures a cable
    subscriber first must be aware of and then affirmatively request
    that such measures be employed. Finally, to receive these
    protections, a cable subscriber must take several steps and incur
    some costs.

31. Specifically, while cable operators provide their digital
    subscribers with advanced parental control technology,[^84] those
    parental controls only are available to digital cable subscribers
    using digital cable set-top boxes.[^85] Of the cable industry's
    65,600,000 subscriber households, only 32,602,000 -- less than half
    of all subscribers -- subscribe to digital service.[^86]
    Furthermore, while those digital cable households[^87] likely have
    at least one cable operator-provided digital set-top box, many, if
    not most, of those homes do not have digital set-top boxes connected
    to every television used to view cable programming. Accordingly, the
    percentage of cable-connected television sets on which those
    advanced parental controls are available likely is even lower than
    the percentage of cable households that subscribe to digital cable
    services. Therefore, it does not appear that cable operator-provided
    advanced parental controls are available on a sufficient number of
    cable-connected television sets to be considered an effective
    solution at this time.

32. We believe that further action to enable viewer-initiated blocking
    of violent television content would serve the government's interests
    in protecting the well-being of children and facilitating parental
    supervision and would be reasonably likely to be upheld as
    constitutional. As indicated above, however, reliance on blocking
    technology alone would probably not fulfill the government's
    interest in protecting the well-being of children. Blocking
    technology does not ensure that children are prevented from viewing
    violent programming unless it is activated, and courts have
    recognized the practical limits of parental supervision.[^88]

33. In addition, any successful viewer-initiated blocking regime with
    respect to violent programming would depend upon the adoption and
    successful implementation of an effective ratings system. Currently,
    to facilitate operation of the V-chip and other blocking mechanisms,
    broadcast, cable, and satellite television providers, on a voluntary
    basis, rate programming using the industry-devised TV ratings system
    guidelines and encode programs accordingly.[^89] Most television
    programming, except for news and sports programming, carries an
    age-based TV rating set by program networks and producers, and most
    include content-based ratings as well.[^90]

34. Studies and surveys demonstrate, however, that the voluntary TV
    ratings system is of limited effectiveness in protecting children
    from violent television content. In the 2004 Kaiser survey discussed
    above, 50 percent of all parents surveyed stated that they have used
    the TV ratings. But about 4 in 10 parents (39 percent) stated that
    most programs are not rated accurately,[^91] and many parents did
    not fully understand what the various ratings categories mean. For
    example, only 24 percent of parents of young children (two-six years
    old) could name any of the ratings that would apply to programming
    appropriate for children that age.[^92] Only 12 percent of parents
    knew that the rating FV ("fantasy violence") is related to violent
    content, while 8 percent thought it meant "family viewing." One in
    five (20 percent) parents said that they had never heard of the TV
    ratings system, an increase from 14 percent in 2000 and 2001. A more
    recent survey indicates that only 8 percent of respondents could
    correctly identify the categories.[^93]

35. And, of course, ratings can only be effective in protecting children
    from inappropriate content if the parent understands the ratings
    information, and such information is accurate.[^94] In a study
    published in the journal *Pediatrics*, parents concluded that half
    of television shows the industry had rated as appropriate for
    teenagers were in fact inappropriate, a finding the study authors
    called "a signal that the ratings are misleading."[^95] Academics
    who have studied the television rating system share parents'
    assessment that the ratings are often inaccurate. A 2002 study found
    that many shows that should carry content descriptors do not,
    therefore leaving parents unaware of potentially objectionable
    material.[^96] For example, the study found that 68 percent of
    prime-time network shows without an "L" descriptor contained "adult
    language," averaging nearly three scenes with such language per
    show.[^97] In fact, "in all four areas of sensitive material --
    violence, sexual behavior, sexual dialogue, and adult language --
    the large majority of programs that contain such depictions are not
    identified by a content descriptor."[^98] The study's authors
    concluded that "\[p\]arents who might rely solely on the
    content-based categories to block their children's exposure to
    objectionable portrayals would be making a serious miscalculation,
    as the content descriptors actually identify only a small minority
    of the full range of violence, sex, and adult language found on
    television."[^99] A 2004 study also raised serious questions about
    the accuracy of television ratings. It found that there was more
    coarse language broadcast during TV-PG programs than those rated
    TV-14, just the opposite of what these age-based ratings would lead
    a viewer to believe.[^100] The Parents Television Council ("PTC")
    and the Annenberg Public Policy Center also have conducted studies
    indicating that the voluntary TV ratings system is inaccurate,
    inconsistently applied, and cannot fully address parental concerns
    over children's TV viewing.[^101]

36. An economist studying the question of why networks consistently
    "underlabel" their programs concluded that they are likely
    responding to economic incentives.[^102] He found that programs with
    more restrictive ratings command lower advertising revenues.[^103]
    The desire to charge more for commercials and fear of "advertiser
    backlash" over shows with more restrictive ratings "means that
    networks have incentives to resist the provision of content-based
    information."[^104]

37. To address these issues, Congress could seek to establish a
    mandatory ratings system that would address the shortcomings of the
    current system set forth above. Such a system could be defended on
    the grounds that it merely requires the disclosure of truthful
    information about a potentially harmful product (violent television
    programming), thereby advancing the compelling government interests
    without significantly burdening First Amendment rights. It could
    also be defended as a necessary predicate for the operation of a
    successful system of viewer-initiated blocking. As stated above,
    however, although mandatory television ratings would impose lesser
    burdens on protected speech, we believe the evidence demonstrates
    that they would not fully serve the government's interest in the
    well-being of minors given the limits of parental supervision
    recognized by the D.C. Circuit in *ACT III*.[^105] Experience also
    leads us to question whether such a ratings system would ever be
    sufficiently accurate given the myriad of practical difficulties
    that would accompany any comprehensive effort to ensure the accuracy
    of ratings. Moreover, such a requirement may have an unintended
    practical consequence. There is some evidence that TV ratings may
    actually serve to attract certain underage viewers to programming
    that is violent or is otherwise labeled as not intended for a child
    audience.[^106]

# Defining Violent or Excessively or Gratuitously Violent 

#  Programming  {#programming .unnumbered}

38. Members of Congress asked the Commission to address whether it would
    be in the public interest to adopt a definition of "excessively
    violent programming harmful to children"[^107] and to consider the
    constitutional limitations on the government's ability to formulate
    and implement such a definition.[^108] While developing a definition
    would be challenging, we believe that Congress could do so.

39. Several considerations are relevant to the adoption of a definition,
    including the regulatory function of the definition. A definition
    used for TV ratings purposes might be based on different criteria
    than a definition used for identifying video programming that must
    not be shown or must be channeled to a later hour. For example, the
    definition used in a mandatory ratings regime intended to facilitate
    parental control might take into account a depiction's potential for
    harm without requiring a finding of a likelihood of harm. Ratings
    and blocking regulations might require multiple definitions for
    different kinds of violent programming to which parents might want
    to restrict their children's access. Another variable is what type
    and degree of violent content the research demonstrates, with a
    reasonable probability, is harmful to children.

40. In addition, any definition would have to be sufficiently clear to
    provide fair notice to regulated entities.[^109] NAB and other
    commenters principally argue that violent programming cannot be
    sufficiently defined to give affected parties the requisite notice
    to be able to predictably comply with any such regulation.[^110]
    Moreover, to the extent regulations based on content are
    constitutionally permissible, the context of the speech may have to
    be factored into the balance. For example, speech that might
    otherwise be unprotected as obscene receives protection if it has
    serious literary, artistic, political or scientific value.[^111] In
    contrast, in certain settings the government has greater ability to
    control indecent speech to the extent such speech is of "such slight
    social value as a step to truth that any benefit that may be derived
    from them is clearly outweighed by the social interest in order and
    morality."[^112] In the indecency context, the D.C. Circuit
    addressed the "merit" issue as follows: "\[S\]ince the overall value
    of the work will not necessarily alter the impact of certain words
    or phrases on children, the FCC's approach is permissible under
    controlling case law; merit is properly treated as a factor in
    determining whether material is patently offensive, but it does not
    render such material per se not indecent."[^113]

41. Judicial decisions and scholarly articles discussing violence almost
    invariably make this definitional point by referencing classic works
    of literature of undisputed merit that involve graphic violence. For
    example, in a case involving violent video games, Judge Posner
    opined that even the sponsors of the regulation would no doubt
    concede that restrictions would not be warranted:

> if the question were whether to forbid children to read without the
> presence of an adult the Odyssey, with its graphic descriptions of
> Odysseus\'s grinding out the eye of Polyphemus with a heated,
> sharpened stake, killing the suitors, and hanging the treacherous
> maidservants; or The Divine Comedy with its graphic descriptions of
> the tortures of the damned; or War and Peace with its graphic
> descriptions of execution by firing squad, death in childbirth, and
> death from war wounds.[^114]

The UCLA Center for Communications Policy notes in its *1997 TV Violence
Report*:

> For centuries, violence has been an important element of storytelling,
> and violent themes have been found in the Bible, The Iliad and The
> Odyssey, fairy tales, theater, literature, film and, of course,
> television. Descriptions of violence in the Bible have been important
> for teaching lessons and establishing a moral code. Lessons of the
> evils of jealousy and revenge are learned from the story of Cain and
> Abel. Early fairy tales were filled with violence and gruesomeness
> designed to frighten children into behaving and to teach them right
> from wrong.[^115]

42. Several commenters advocate adopting specific definitions. Those
    that do chose pre-existing definitions in the literature or selected
    regulatory proxies as a model. For example, Pappas Telecasting
    suggests that the Commission essentially adopt the definition used
    by the *National TV Violence Study*, which defined violence as "any
    overt depiction of a credible threat of physical force or the actual
    use of such force intended to physically harm an animate being or
    group of beings."[^116] Morality in Media ("MIM") suggests enhancing
    the existing indecency definition by including references to
    violence.[^117] According to MIM, indecent speech should be defined
    as content that, in context, describes or depicts: "(1) sexual or
    excretory activities or organs or (2) outrageously offensive or
    outrageously disgusting violence or (3) severed or mutilated human
    bodies or body parts, in terms patently offensive as measured by
    contemporary community standards for the broadcast medium." MIM
    defines violence as: "intense, rough or injurious use of physical
    force or treatment either recklessly or with an apparent intent to
    harm."[^118]

43. The Media Institute maintains that establishing a definition that
    can capture the nuanced depictions of violence seen in dramas,
    comedies, and educational features, while allowing for
    predictability in enforcement, would be a difficult task.[^119] It
    urges the Commission to consider the context of physical force seen
    in a football game, a "Road Runner" cartoon, the Holocaust drama
    *Schindler's List*, a *The Three Stooges* short, an airing of the
    evening news with discussion of violent crime, and a science fiction
    film such as *Star Wars*. It argues that instances of violence,
    essential to each of these protected forms of speech, serve a
    completely different function in each instance based on context. It
    argues that, under MIM's proposal, the media could not with any
    surety report the news, broadcast dramatic works appropriate for
    adults, or even air professional sporting events.[^120] NAB asserts
    that, if the definition of violence from the *National Television
    Violence Study* were used to regulate television programming, many
    of the most popular shows in television history, such as *Hill
    Street Blues*, *Gunsmoke*, and *The Untouchables*, would have been
    subject to some type of government restriction.[^121] NAB and other
    commenters argue that the Commission cannot sufficiently define
    violent programming to give affected parties the requisite notice to
    be able to predictably comply with any such regulation.

44. We believe that developing an appropriate definition of excessively
    violent programming would be possible, but such language needs to be
    narrowly tailored and in conformance with judicial precedent.[^122]
    Any definition would need to be clear enough to provide fair warning
    of the conduct required. A definition sufficient to give notice of
    upcoming violent programming content to parents and potential
    viewers could make use of, or be a refinement of, existing voluntary
    rating system definitions or could make use of definitions used in
    the research community when studying the consequences of violent
    programming. For more restrictive time channeling rules, a
    definition based on the scientific literature discussed above, which
    recognizes the factors most important to determining the likely
    impact of violence on the child audience, could be developed.[^123]
    For example, such a definition might cover depictions of physical
    force against an animate being that, in context, are patently
    offensive. In determining whether such depictions are patently
    offensive, the Government could consider among other factors the
    presence of weapons, whether the violence is extensive or graphic,
    and whether the violence is realistic.[^124]

    **V. CONCLUSIONS AND RECOMMENDATIONS**

45. In response to the specific questions posed, we draw the following
    conclusions. First, with respect to the evidence of harm to children
    from viewing violent television content, there is strong evidence
    that exposure to violence in the media can increase aggressive
    behavior in children, at least in the short term.

46. Second, although there are constitutional barriers to directly
    limiting or time channeling the distribution of violent television
    programming, the Supreme Court's *Pacifica* decision and other
    decisions relating to restrictions on the broadcast of indecent
    content provide possible parallels for regulating violent television
    content. Third, while there are legal, evidentiary, analytical, and
    social science obstacles that need to be overcome in defining
    harmful violence, Congress likely has the ability and authority to
    craft a sustainable definition.

47. Finally, we note that the 109^th^ Congress was considering an
    extensive bill, introduced by Senators Rockefeller and Hutchinson,
    designed to protect children from excessive violence on
    television.[^125] The bill also proposed that the Commission
    consider and report on the effectiveness of the current technology
    and of consumer understanding of the technology and ratings
    system.[^126] This *Report*, in essence, serves the purpose
    contemplated in the bill. Our analysis above indicates that the
    current technology "fix," including but not limited to consumer
    understanding of the technology and voluntary ratings system, is not
    effective in protecting children from violent programming. Given the
    findings in this *Report*, we believe action should be taken to
    address violent programming. Industry could on its own initiative
    commit itself to reducing the amount of excessively violent
    programming viewed by children. Broadcasters could adopt a family
    hour at the beginning of prime time, during which they decline to
    air violent content.[^127] Multichannel video programming providers
    (MVPDs) could provide consumers greater choice in how they purchase
    their programming so that they could avoid violent programming.
    Under such an approach, consumers could select the channels they
    want to pay for, and opt out of those that they do not. In short, an
    a la carte regime would enable viewers to buy their television
    channels individually or in smaller bundles. In this manner,
    consumers could avoid purchasing those channels that tend to air
    more violent programming. Cable and DBS operators could implement a
    la carte in a variety of ways. For example, it could be limited to
    digital cable customers who would be permitted to "opt out" of cable
    programming, requesting not to receive certain cable channels and
    having their package price reduced accordingly ("channel blocking
    and reimbursement").

48. Alternatively, customers could be allowed to "opt in" to particular
    cable programs. This is how premium channels are offered today. In
    Hong Kong, for example, consumers can select and pay for only the
    channels they want. A family that wants to watch sports, movies,
    news and children's programming can receive 15 free channels plus a
    selection of 11 additional digital channels including ESPN, HBO, CNN
    Headline News, National Geographic, Animal Planet, and Discovery for
    \$27.50 per month. To get the same channels in Washington, DC, it
    would cost \$82.00 per month.[^128] Another option would be to allow
    consumers to choose a specific number of channels from a menu of
    available programming for a fixed price -- e.g., 10 channels for
    \$20, 20 channels for \$30, etc. Customers then would be able to
    receive -- and pay for -- only that programming that they are
    comfortable bringing into their homes. For example, in Canada,
    digital subscribers can buy channels individually or enjoy
    significant savings on a \"5 pack,\" a \"10 pack\" or a \"15 pack\"
    of their own choosing.

49. In sum, Congress could implement a time channeling solution, as
    discussed above, and/or mandate some other form of consumer choice
    in obtaining video programming, such as the provision by MVPDs of
    video channels provided on family tiers or on an a la carte basis
    (e.g., channel blocking and reimbursement).

# VI. ORDERING CLAUSES {#vi.-ordering-clauses .unnumbered}

50. Accordingly, **IT IS ORDERED** that, pursuant to the authority
    contained in sections 4(i), 303(g), 303(r), and 403 of the
    Communications Act, 47 U.S.C. §§ 154(i), 303, and 403, this Report
    **IS ADOPTED**.

51. It is **FURTHER ORDERED** that the Office of Legislative Affairs
    shall deliver copies of this *Report* to the appropriate committees
    and subcommittees of the United States House of Representatives and
    the United States Senate.

52. It is **FURTHER ORDERED** that the proceeding in MB Docket No.
    04-261 **IS TERMINATED**.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

**APPENDIX**

**Commenters filing in MB Docket No. 04-261\***

American Civil Liberties Union ("ACLU")

Center for Creative Voices in Media/Caucus for Television
Producers/Peggy Charren ("CCVM")

Children's Media Policy Coalition ("CMPC"):

Action Coalition for Media Education

American Academy of Child and Adolescent Psychiatry

American Academy of Pediatrics

American Psychological Association

Benton Foundation

Children Now

National Institute on Media and the Family

National PTA

Office of Communication of the United Church of Christ

Coalition for Independent Ratings Services ("CIRS"):

Coalition for Quality Children's Media

Critics, Inc.

Family Style Film Guide

Grading the Movies

PSV Ratings, Inc.

Corporation for Public Broadcasting/Association of Public Television
Stations ("CPB"/"APTS")

Craig A. Anderson, Ph.D., Iowa State University

Joanne Cantor, Ph.D., University of Wisconsin-Madison

Jerry Kroth, Ph.D., Santa Clara University

Media Coalition ("MC"):

American Booksellers Foundation for Free Expression

Association of American Publishers

Comic Book Legal Defense Fund

Freedom to Read Foundation

Entertainment Software Association

Interactive Entertainment Merchants Association

Magazine Publishers of America

Motion Picture Association of America

National Association of Record Merchandisers

Publishers Marketing Association

Recording Industry Association of America

Video Software Dealers Association

Media Associations ("MAS"):

American Advertising Federation

American Association of Advertising Agencies

Association of National Advertisers, Inc.

Motion Picture Association of America

National Association of Broadcasters

Satellite Broadcasting and Communications Association

Media Institute ("MI")

Michael Males, University of California, Santa Cruz

Morality in Media ("MIM")

Nancy Signorielli, Ph.D, University of Delaware

National Association of Broadcasters ("NAB")

National Cable and Telecommunications Association ("NCTA")

National Hockey League ("NHL")

Pappas Telecasting Companies ("Pappas")

Satellite Broadcasting and Communications Association ("SBCA")

Sesame Workshop

Tim Collings (V-chip inventor)

**Reply Comments**

Capitol Broadcasting

Children's Media Policy Coalition

Community Broadcasters Association

Consumer Electronics Association

National Association of Broadcasters

**\***The Commission has also received hundreds of comments from
concerned individuals in this proceeding. These comments are available
through the Commission's electronic comment filing system.

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

> **Re: *In the Matter of Violent Television Programming and Its Impact
> On Children*, MB Docket No. 04-261**

For decades, parents, healthcare professionals, and government officials
have discussed and debated the impact of excessively violent programming
on children. In fact almost 70% of respondents in a poll conducted for
the Associated Press said there was too much violence on television.
Four years ago, members of Congress asked the Commission to conduct an
inquiry and to issue a report examining the harmful impact of violent
video programming on children and what if anything Congress could do
about it.

The concern about the potential impact of excessively violent
programming is not surprising given that in the Children's Television
Act, Congress noted that by the time the average child is eighteen years
old, he or she will have watched between 10,000 and 15,000 hours of
television. As stated in our Report, children on average watch between
two and four hours of TV per day. Even the youngest children -- those
age six and under -- watch an average of two hours of television each
day, according to the Kaiser Family Foundation.

To assess the impact of violent programming on children, the Commission
reviewed numerous studies conducted by the medical and social science
communities. Research on whether watching violent programming actually
causes aggressive behavior in children is inconclusive. However, major
studies, including those by the Surgeon General and the Federal Trade
Commission, have found that exposure to violent content on TV is
associated with an increase in aggressive or violent behavior in
children. In addition, a joint statement by major medical associations
including the American Academy of Pediatrics, the American Medical
Association and the American Psychiatric Association identified some of
the effects of exposure to violence as being emotional desensitization
towards violence in real life and having a higher tendency for violent
behavior later in life. In other words, the evidence does not prove
causation, but it does demonstrate a strong correlation.

These findings make clear, and the Commission today affirms, that
exposure to violent programming can be harmful to children.

When it comes to protecting their children from such harm, parents are
the first and last line of defense. Thus, it is critical then that they
have the necessary tools to protect their children. Today the Commission
concludes that current blocking technologies and ratings systems are
insufficient and do not fully serve the interest of promoting parental
supervision and protecting children. Less than half of the TV sets in
American households are capable of blocking content that is not suitable
for children. Even parents who have TVs equipped with a V-chip need more
help. According to a recent Zogby poll, 88% of parents did not use a
V-chip or a cable blocking device. In part, blocking solutions don't
work because they are dependent on an imperfect television ratings
system. Only 8% of respondents in the Zogby poll could correctly
identify the ratings categories.

Clearly, steps should be taken to protect children from excessively
violent programming. Some might say such action is long overdue. Parents
need more tools to protect children from excessively violent
programming. And, as the Commission finds today, they need tools that
address the violent programming on all platforms---broadcast, cable and
satellite.

I have long encouraged industry to give parents more direct control over
the television content that comes into their homes. Broadcasters could
reinstate the Family Hour at the beginning of prime-time, during which
they would air only programs appropriate for children. Cable and
satellite operators could enable parents to avoid purchasing channels
that tend to show excessively violent programming by allowing them to
purchase channels individually or in smaller bundles as they currently
do for "premium channels" like HBO.

Whenever government considers such regulations, it must do so with great
care and deliberation. For example, real life violence shown in a news
story is not the same as fictional violence graphically depicted for
purposes of "entertainment". Congress specifically asked the Commission
to consider whether it would be possible to restrict the showing of
violent programming during the hours of the day when children are likely
to be watching television. The United States Supreme Court has upheld
this sort of time channeling in the context of indecent programming. In
that context, the Supreme Court ruled that the government could apply
regulations when the government's interest was "substantial" and the
restriction was "narrowly tailored." The Supreme Court emphasized two
factors: the "pervasive presence in the lives of all Americans," and the
government's interests in the well-being of children and in supporting
parental supervision of children.

The television industry has already developed definitions of violence
that is used in their ratings system. Specifically, the TV Parental
Guidelines developed by the television industry include ratings that
indicate the presence of \"fantasy violence,\" \"no violence,\"
\"moderate violence,\" \"intense violence,\" and \"graphic violence.\"
Thus, it appears that the industry agrees with some basic definition of
violence in programming, at least for use with blocking technologies. I
therefore question commenters' arguments that violence can be defined
sufficiently for ratings and blocking purposes, but not defined
sufficiently for purposes of time channeling requirements.

Requiring cable and satellite television providers to offer programming
in a more a la carte manner would be a more content neutral means for
Congress to regulate violent programming and therefore would raise fewer
constitutional issues. All of the versions of a la carte would keep
government out of regulating content directly while enabling consumers,
including parents, to receive the programming they want and believe to
be appropriate for their families. For instance, cable operators already
block any channel that a consumer requests to be blocked. One form of a
la carte could simply require the cable operator to reimburse consumers
for the channels they request to have blocked. While the Constitution
protects the right to speak, it certainly doesn't protect a right to get
*paid* for that speech. Cable operators also could offer to block and
reimburse only those channels not subject to time channeling
restrictions.

Multichannel video distributors in other countries already sell cable
channels in a more a la carte fashion. For instance, In Hong Kong,
consumers can select and pay for only the channels they want. A family
who wants to watch sports, movies, news and children's programming can
receive 15 free channels plus a selection of 11 additional digital
channels including ESPN, HBO, CNN Headline News, National Geographic,
Animal Planet, and Discovery for only \$27.50 per month. To get the same
channels in Washington, DC, it would cost \$82.00 per month.

Similarly, in Canada, after buying basic cable, digital subscribers can
buy channels individually or enjoy significant savings on a "5 pack", a
"10 pack", or a "15 pack" of their own choosing.

It has long been my hope that the broadcast, cable and satellite
industries would address content issues on their own, providing parents
with effective tools to protect their children. Today the Commission, in
response to specific Congressional questions, concludes that exposure to
violent programming can be harmful to children and that Congress could
provide parents more tools to limit their children's exposure to violent
programming in a Constitutional way.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

**Re: *In the Matter of Violent Television Programming and Its Impact on
Children, ***

**MB Docket No. 04-261**

As I travel across the country talking with people about our nation\'s
media, I consistently hear from parents about what their children are
seeing on television. I hear many voices but one common refrain --
parents are afraid of many of the images television sends, upset at the
kinds of behavior certain programming seems to condone, and totally
turned off by the extraordinary and escalating violence being broadcast
into our living rooms.

Television is perhaps the most powerful force at work in the world
today. When used for good, it can enlighten minds, convey powerful
ideas, educate, and lay the foundation for human development. But when
it is used to mislead, misrepresent and distort, it can -- it does --
inflict lasting harm. Most of the evidence amassed over the past half
century indicates a relationship between gratuitous violence and harmful
effects -- personal, psychological and social. While research continues
on how children are affected by what they watch, it seems close to
indisputable that there are indeed unfortunate and negative outgrowths
from the spreading virus of broadcast violence.

Congress requested the FCC to report on the issue and to develop some
options for legislators to consider. This violence report is the
Commission\'s response to that request. It surveys the problem, presents
our considered \"take\" on the issue and develops several options for
Congress to consider should it decide to develop legislation on the
matter. It tees up such options as time channeling, viewer initiated
blocking and mandatory ratings, as well as a la carte or bundling
approaches in the cable and DBS context. Congress retains, of course,
the prerogative to act, just as the judiciary has the prerogative of
responding to legislation that is challenged in the courts. The instant
report marries no one approach but instead responds to the request for
analysis and options.

The facts are extraordinary and alarming. Children watch on average
between two and four hours of television every day; young children are
masters of the remote control; and they often watch television
unsupervised. The research taken as a whole strongly suggests that
children\'s constant exposure to violence on television can be
desensitizing, damaging and even devastating to them and to
society-at-large.

We all have important roles to play to protect our children from violent
programming -- parents, industry, the FCC, and Congress. Parents are of
course the first line of defense, and without their active involvement
it is difficult to envision a successful cure for the violence virus.
Yet significant evidence indicates that no tools thus far available have
been successful in containing the epidemic. This would include the
V-chip, other control technologies and the existing television program
ratings system. Industry\'s efforts have obviously not solved the
problem and the preoccupation of some media -- especially large national
conglomerates often more interested in selling products to young people
than in removing violence from the airwaves -- does not provide much
confidence that it will move to solve the problem. Given the impact of
gratuitous violence on children and the pervasiveness of this kind of
programming in our homes, it becomes altogether appropriate for Congress
and the Commission to address the issue.

I am pleased that the Commission unanimously concludes in today\'s
report that it is appropriate for Congress to entertain action against
program violence. Congress has the opportunity, should it choose to do
so, to establish innovative, meaningful, and constitutional ways for
safeguarding our children from violent programming when they are most
likely to be in the viewing audience. As this issue continues to gather
momentum, I hope we can have a dialogue across the nation on the
challenges that will attend the various options we tee up today and
others that Congress and others will no doubt suggest. This is the
beginning, not the end, of the debate. I for one proceed acutely
sensitive to the need for a carefully crafted approach. I want to see a
solution that solves the problem without creating others. I recognize
that it is not an easy challenge to develop rules that pass
constitutional muster, but given what amounts to a public health crisis
at hand, I believe it is a challenge that must be met. Serious and
festering problems require solutions, so that the question here is not
***whether*** we should address the issue,

but ***how*** we should address it. Working together -- citizens,
industry and government -- there is simply no reason why we should not
be able to find workable solutions.

Finally, I commend the Chairman and all my colleagues for supporting
this report and for their helpful suggestions to make it better. I hope
our action today will be an important first step in safeguarding our
children from excessively violent television programming.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

**APPROVING IN PART & CONCURRING IN PART**

***Re*: Violent Television Programming and Its Impact on Children,
*Report,* MB Docket No. 04-261**

America is hooked on violence. That manifests itself in news coverage
with the credo, "if it bleeds, it leads." To an alarming extent, the
same credo applies to much entertainment programming and even some
commercials. The top ten highest rated broadcast programs consistently
have programs with violent content leading the pack.[^129] In the
primetime ratings game, violence sells and our children are innocent
bystanders. This very unfortunate state of affairs is the shared
responsibility of networks, broadcasters, cable operators and
programmers, advertisers, and ultimately viewers.

There is considerable evidence in the social science literature that
violence in the media can cause children to act more violently or
aggressively. Particularly in light of the spasm of unconscionable
violence at Virginia Tech, but just as importantly in light of the
excessive violent crime that daily afflicts our nation, there is a basis
for appropriate federal action to curb violence in the media.

This is an issue of deep personal significance to me as a parent of
small children. I am particularly fortunate that my career choice has
sensitized me to the relentless assault of violent content on television
that confronts me and my children. A turning point for me came at my
first confirmation hearing for this position, when Senator Sam Brownback
showed me a study about how the brain scans changed for people while
they were watching violent programming. Ever since, I have viewed,
particularly over my children's shoulders in those instances when I let
them watch, the cavalcade of violence that afflicts children's and adult
programming alike.

It is clear that parents are the first, last *and* best line of defense
against all forms of objectionable content. Speaking as a parent, the
problem is that in today's media landscape, families have to navigate
through a sea of violence. Making a bad situation worse, most parents
don't know about the navigational tools available to them, so they are
like 17^th^ Century sailors subject to the whims of an angry sea when
they could be using more modern techniques. The following chart, which
simply reflects the casual observations of me and my staff, is meant to
illustrate the volume of violent shows on television during the current
primetime line-up.

**Primetime Broadcast Shows with Violent Content**

**Aired 8-10pm**

The problem with this *Report* we are presenting to Congress is that it
is not clear from reading it which if any primetime shows are being
recommended for regulation. Are we saying Law and Order should be banned
during hours when children are watching? It is anyone's guess after
reading this *Report*. The *Report* is not a model of clarity.

Like most parents with adolescent children, I live in perpetual fear of
the shows *and* commercials to which my son or daughter will be exposed
to on any given evening. Whether it is a primetime show with a violent
scene or merely a commercial with a violent preview, inappropriate
material pops up much too often for my comfort. I am sure my children
are not the only ones who have difficulty sleeping after they are
inadvertently exposed to violence on television.

I fully understand that it is my choice to turn the television on or
off, and similarly, it is the viewing public's responsibility to refrain
from watching shows that they consider objectionable or harmful to their
families and children. Sometimes, though, it is a trailer for a news
show or a promotion for a horror movie that comes on during what was
considered safe family programming, like the Super Bowl. As a parent and
policymaker, I am profoundly concerned by the general lack of
accountability, compassion, and thoughtfulness of some in the media
entertainment industry. Yet this *Report* offers no discussion or
suggestions as to what to do about violence in advertising and
promotional spots during shows when children are watching, which is one
of the biggest complaints we hear from parents in the real world. At a
minimum, this is an issue worth confronting through a public-private
partnership with the major media outlets.

Studies have shown, and my personal observations support, that by age
18, an American child will have seen upwards of 15,000 simulated murders
and about 200,000 acts of violence. Clearly, there is something wrong
with this picture. Government has an important role to support parents
who are struggling to protect the well-being of their children.

Borne out of this concern and responsibility, over three years ago, the
Committee on Energy and Commerce of the U.S. House of Representatives
sent a letter requesting that the Commission study media violence and
its impact upon children. The Committee asked the Commission to
formulate and propose a definition of "excessively violent programming"
that would be able to withstand constitutional scrutiny. Specifically,
the Committee wanted the Commission to analyze "whether there are any
constitutional limitations in defining 'excessively violent programming
that is harmful to children,' or in constraining or prohibiting
broadcast of such material during hours when children are likely to be a
significant part of the broadcast viewing audience." The Commission
further asked for "measures that \[could\] facilitate a consumer's use
of the television rating system."

This *Report* is part of a national dialogue between the American
people, Congress, regulatory agencies, public interest organizations,
the courts and the entertainment industry. In light of this national
interest, this *Report* should include an objective, authoritative
discussion of the constitutional and regulatory challenges of regulating
media content based on our experience with regulating indecent speech.
The *Report* should provide a complete and thorough analysis of all
parental control technologies and resources that are currently available
to families and households. Overall, this *Report* should weigh the
national interest of protecting children from violent content against
the cumulative effect of all available parental control technologies and
resources, and the constitutional concerns. It should provide a working
definition most likely to sustain judicial scrutiny. In so doing, the
*Report* should make recommendations that would empower parents and
families, and provide Congress with a set of options -- not just content
and price regulation. In short, the Report should do what Congress
asked.

To my disappointment, this *Report* does not fully display the
experience and informed judgment of an expert federal agency that has
regulated media content over thirty years. Specifically, this Report
does not deal adequately with the constitutional dimensions of
regulating violent content on free over-the-air TV, or
subscription-based cable and satellite TV services. In fact, it muddies
the issues and legal distinctions that the courts have made regarding
the ability of the government to intervene in different media formats.
Nor does this Report discuss fully how federal courts have ruled in
numerous cases involving the regulation of violence. Oddly enough, the
Report does not even discuss the full menu of parental assistance tools
that are available today to millions of families. And, as a result of
this incomplete analysis, the recommendations made in this Report are
not fully responsive to the specific questions presented by the
Committee, or inadequate to provide parents, like me, with the necessary
support to protect our children. Like a financial consultant who advises
a client that he could win the lottery, this *Report* discusses an
optimal conclusion, but does not provide a complete analysis or a sound
plan.

Congress asked the Commission to study media violence and to propose a
definition of violence that would be "best suited, and most likely to be
sustained in court." Rather than acknowledge that, after three years,
the Commission has been unable to so, the *Report* passes the buck,
declaring that "Congress could do so." The definitional difficulties
here should not be dealt with in such a casual, dismissive manner. After
all, this is a protected constitutional right under the First Amendment
that we are recommending Congress to curtail without any thoughtful
legal analysis. We shirk our responsibility by saying that we can define
violence that should be banned since the guidelines developed by the
television industry contain categories of violence for ratings purposes.
Which of those categories do we propose to ban during hours when
children are watching? Given that we are not able to offer a definition
ourselves, it does not appear to be as easy to define as some suggest.

The fact of the matter is that "not all violence is created
equal."[^130] The Commission has not been able to formulate and
recommend a definition of violence that would cover the majority of
violent content that is inappropriate for children, provide fair
guidance to programmers, and stand a decent chance of withstanding
constitutional scrutiny, in light of judicial precedent. While we may
want to define prohibited-violence and regulate it in conformance with
constitutional standards, the *Report* does not refer to any court or
judicial scholar that has suggested such definition is available or
probable.

To the contrary, the *Report* diminishes the extent to which courts have
either expressed serious skepticism or invalidated efforts to regulate
violent content.[^131] I believe we have an obligation to provide
Congress with the complete analysis of this "jurisprudential quagmire,"
whereby "any regulation of television violence confronts an inherent
tradeoff between precision and effectiveness" and "any restriction in
this area that is neither overboard nor vague will leave unregulated so
much violent programming that it will no longer accomplish a compelling
interest."[^132]

The central tension we face is that adults' access to violent
programming is protected under the First Amendment to the U.S.
Constitution. The difficult question is precisely which violent
programming, if any, the government can regulate in the interest of
protecting children. That question -- the most challenging Congress
faces -- is never answered here.

Providing Congress with a complete record should be the central
objective of this *Report*, but sadly that is not accomplished. In 2003,
the Commission found that "new modes of media have transformed the
landscape, providing more choice, greater flexibility, and more control
than at any other time in history." In today's *Report,* however, the
Commission simply ignores many of the developments that empower parents
and viewers with more control over their programming choices. Cable
subscribers, for example, have various options available, depending on
if they have digital or analog cable. Digital cable set-top boxes allow
parents to block shows with certain ratings, titles, or by time or date,
and analog cable subscribers can use their set-top or "lockbox"
technology that locks specific channels so that channel can no longer be
viewed. Digital and personal video recorders, and video-on-demand permit
families to "time-shift" or watch programming whenever they deem
appropriate. Similarly, satellite TV subscribers have access to the
Locks & Limits feature on DirecTV and Adult Guard on Dish Network. In
addition to these operator-provided control technologies, TV
manufacturers have been required since 1997 to install a V-Chip in all
TV sets larger than 13 inches, giving parents the ability to block
certain content based on age- and content-based rating. Parents and
viewers may find that these tools provide varying degrees of
effectiveness but this *Report* fails to explore these issues
adequately.

The Commission is justifiably concerned about the limited consumer use
of the V-Chip, the limited consumer understanding of the rating system
and the limited deployment of digital cable set-top boxes and their
accompanying advanced parental control features. However, these tools --
and the online resources -- provide a good basis from which to build.
Instead of rushing to conclude that the TV ratings system -- whether
voluntary or mandatory -- is and will always likely be unworkable, and
that blocking technology does not adequately promote parental
supervision and protect the well-being of children, the Commission has
an obligation to advise Congress how we can attempt to improve their
effectiveness. We fail to do so here.

While this *Report* recommends content and price regulation as the only
legislative remedies to address violence on TV, I believe the Commission
is missing a historic opportunity to discuss a host of meaningful
"consumer choice" recommendations that would truly enhance and
facilitate parents' effort to safeguard their children from the exposure
to violent programming. From developing enforceable public interest
obligations to implementing a national consumer education campaign,
there are other recommendations that should be part of the national
dialogue on media violence.

If we were able to craft a constitutionally-sustainable definition of
violence, presumably it would apply to only the most extreme and
gratuitous depictions of violence. While that might help parents
navigate past a few icebergs in a sea of violence, they would still be
faced with sailing a pretty stormy sea on their own. Our own experience
in regulating indecency demonstrates that regulation only applies to the
most egregious cases, and there is a vast array of sexually explicit
television that many parents, including myself, would find inappropriate
for their children but which does not rise to the level of indecency. In
the case of violence, I certainly would not want my children watching
the opening scenes of *Saving Private Ryan*, but I doubt any court would
uphold us banning it during evening hours. I do not even like my kids
watching a cartoon of an anvil falling on the coyote's head, but I do
not think any court would let us ban it. So our narrowly focused
recommendations might help on the margins, but do little to deal with
the vast problem parents confront on a daily basis.

One of our few recommendations, a la carte, which is primarily a
price-regulation mechanism, is far too blunt an instrument to provide
much help to beleaguered parents who already have the ability to block
any cable channel they want, whether they are analog or digital
subscribers. The History Channel, for example, sometimes broadcasts war
scenes far too violent for young children, but dropping it would deprive
them of valuable educational content it often airs. TV violence is not
viewed in the record as a channel-by-channel problem. Perhaps that is
why leading experts have not suggested a la carte as a solution. It
makes its debut here with little explanation as to why or how it would
be of any practical use to parents.

Given how much of the concern about violence arises from what is on
broadcast television, it is not even clear how a la carte price
regulation would help parents avoid violent programming unless it
applied to each broadcast channel, which this report does nothing to
clarify. I suppose a parent could choose to receive only Home and Garden
Television and the Food Channel to avoid violent programming, since
there are so few other channels devoid of violence, but I do not see how
that helps parents much.

A recent study from the Parents Television Council (PTC) found that, in
midst of the unprecedented wave of media consolidation between 1998 and
2006, violence on television during the hours of 8:00 p.m., 9 p.m. and
10 p.m. grew by 45, 92 and 167 percent, respectively.[^133] This finding
is highly relevant to the Commission's current review of the broadcast
media ownership rules. The apparent correlation between increased media
concentration and media violence questions whether *any* effort to
permit further concentration of ownership can be squared with the public
interest. Furthermore, this finding reinforces the substantial need of
Congress and/or this Commission to develop enforceable public interests
obligations for general audience broadcast programming.[^134] Despite
repeated requests from Members of Congress, consumer and children's
advocacy organizations, Commissioner Copps and me, this Commission has
failed to complete a proceeding to address this important concern since
1999.

So while this *Report* focuses its recommendations on the novel and
questionable approach of mandating a la carte, and
constitutionally-difficult content regulation, it neglects to provide
much discussion of a host of tools that could clearly provide parents
some relief. Rather than focusing solely on the sliver of violent
programming that may or may not be amenable to regulation, we should
have also focused on the real, everyday problems parents face which are
more fully addressed by more comprehensive solutions that sometimes
involve working with media executives to set better standards to protect
children from exposure to TV violence.

Other recommendations that do not implicate constitutional protections,
but are noticeably missing from this Report, include the need for a
coordinated and sustained national effort to educate parents, engage
industry and encourage the development of new technologies. Such an
effort could include an education campaign, authorized and funded by
Congress, would seek to improve consumer awareness and understanding of
all existing parental controls technologies and resources, especially
the V-Chip and content descriptors. A multi-faceted campaign would: (1)
expand existing industry-led and private efforts, such as TVboss.org.
and Pause Parent Play, to further educate parents and families; (2)
require manufacturers set new TVs to receive only TV-G children
programming, until consumers and parents reset or opt-in for programming
that is appropriate for their household; (3) rate all programming,
including news, promotions and commercials;[^135] (4) use audio, in
addition to visual, ratings and descriptors of all rated programs; (5)
promote media literacy at schools; (6) encourage more positive
children's programming; and (7) encourage the development of enhanced
V-Chip software and blocking technologies to filter objectionable
content.

Congress could also consider legislation that explicitly exempts a
television code and a family hour from antitrust law. This measure could
permit the broadcast, cable, satellite and advertising industries to
establish an inter-industry code on the subject of television violence.
Such an approach, along with the national coordinated effort and
education campaign, I believe, would help reduce children's exposure to
media violence. Accordingly, these ideas deserve consideration by
Congress, even though they are not mentioned in this Report.

Unfortunately for those who care passionately about this issue, as I
certainly do, this Report could do much more. I vote for it because it
is a start and better than nothing, but we leave much of the real work
to Congress to tackle the tough issues Congress asked us to help them
with.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

> ***Re: In the Matter of Violent Television Programming and Its Impact
> on Children,* MB Docket No. 04-261**

Members of Congress requested the FCC launch an inquiry regarding
negative effects of violent programming, the constitutional limitations
on restricting violent programming when children are likely to be
viewing, and the constitutionality and public interest basis for
adopting a definition of "excessively violent programming that is
harmful to children." While I recognize the difficulty in drafting
narrowly tailored and constitutionally sustainable definitions in this
matter, after reviewing the studies and meeting with researchers and
those who have been involved in this debate for decades, I am convinced
that something must be done to help parents minimize the pernicious
effects of violent programming on their children. Congress faces
difficult issues everyday and constantly walks a tight constitutional
line, but, as Albert Einstein once said, "In the middle of difficulty
lies opportunity."

Like many of the parents, experts and health professionals we heard
from, I am deeply concerned about the negative effects violent
programming appears to have on our children. Many of us, as parents,
have witnessed our children acting out a fighting scene from an episode
of Teenage Mutant Ninja Turtles, been shocked by our children's
callousness towards violence, or been awakened by a frightened child
climbing into bed after having a nightmare because of something they saw
on television. While the Report we submit to Congress today recognizes
that there is some research refuting the causal relationship between
violent programming and aggressive behavior, the vast majority of
studies indicate that violent programming does have a negative impact --
ranging from increased desensitization to violence to sleep
abnormalities to heightened fears of becoming a victim -- on children.
I'm sure the 81 percent of parents who believe that violence on
television contributes to violent behavior in children will agree with
many of our findings.

The debate regarding the impact of violent programming is not a new one.
In fact, it made its official debut in 1952 with the first Congressional
hearing on the matter. The discussions, the political rhetoric, the
hearings, and indeed the promises made by the industry during those
hearings have been remade, rehashed, reinvented, and recycled in the
following 55 years. While I support self-regulation first, these
discussions have been going on for far too long. It is time that more
effective steps are taken to protect our children.

Following the passage of the 1996 Communications Act, countless parents
and advocacy groups, the FCC, and indeed Congress strongly encouraged
the industry to adopt a "ratings system." Today, we have an age-based
system with general content descriptors warning of violence, language,
sexual situations, and suggestive dialogue.

While this was a positive, *voluntary* industry step, it has proven to
be insufficient to protect our children. Individual networks rate each
of their programs, leading to inconsistencies across channels, and even
across shows. Age-based ratings may reasonably reflect the content of
the shows, but content descriptors frequently are not used or would be
considered inaccurate by an impartial observer. For example, a program
may very well have violent content, but if the network does not believe
it constitutes "moderate" violence, a "V" label is not applied. The
industry also frequently labels intense violence in children's programs
as "FV," for comedic violence or fantasy violence, regardless of whether
it is fantasy or realistic, merely because it appears in children's
programming. Yet, research shows that children aged 7 and younger often
perceive fantasy or comedic violence as reality.

The industry should implement ratings reliably, more completely,
consistently, and accurately. A properly implemented ratings system
would be a very useful tool for parents when used together with the
V-Chip. Unfortunately, notwithstanding government and industry
educational efforts, more than half of Americans do not know their
television is equipped with a V-Chip and two-thirds have never used it.
Thus, effectively educating parents about the V-Chip is an additional
necessary step. Further, our report notes that the industry could
voluntarily commit itself to reducing the amount of excessive violence
viewed by our children. A good first step would be to readopt a family
hour during which there is no violent content, period.

Over the past few years, sources from outside the industry have
introduced new tools and technology designed to help parents make smart
choices about what kind of violent content is age-appropriate and
available to children. For example:

-   Parents Television Council provides on its web site a rating of a
    significant number of network programs based on PTC employees' log
    of every instance of violence, language, sexual situation, and
    suggestive dialogue.

-   Common Sense Media has rated more than 6,000 media titles from a
    kids and family perspective -- including violent content ratings.
    These reviews are distributed not just through Common Sense's
    website, but also through major Internet and cable partners such as
    Comcast, Time Warner Cable, and Road Runner High Speed.

-   TV Guardian technology actually detects and filters profanity and
    other offensive phrases chosen by the parent -- including "hate
    words" and racial slurs -- while you watch movies or television
    shows.

While independent information can facilitate parental control, in
today's 24/7 media environment, parents need more help. Our Report
concludes that the available tools and technological "fixes" are not
sufficient to protect our children from violent programming. There is no
doubt that parents are the ones who know their children best, and are
the first line of defense in keeping their kids from viewing violent
content they aren't ready to see. But both the industry and the
government have an important role to play: in educating the public about
the problem as well as potential solutions; in encouraging the
development of more and better tools; in brokering partnerships so that
parents have better access to accurate information; and in listening to
both experts and parents across this country. I pledge my assistance in
these efforts.

I will close with this thought: we, parents, must take responsibility
for the media that is viewed *inside* our homes, but also must be active
in changing the media landscape *outside* our homes. I encourage all
parents to let your local TV station know when something you find
inappropriate is aired, and be sure to notify your representatives in
Congress. If enough parents speak out, perhaps we will not only improve
the tools that are available to parents to help minimize their
children's exposure to violent content, but we will actually see an
increase in the amount of family-friendly, uplifting and nonviolent
programming being produced.

**STATEMENT OF**

**COMMISSIONER ROBERT M. MCDOWELL**

***Re: In the Matter of Violent Television Programming and Its Impact on
Children,* Report to Congress**

As the father of three young children, I am deeply concerned about the
coarsening of television content and the effects of television violence
on children. As a society, we should do all that the law allows to help
shield our children from harmful television content. Today's Report is a
response to Congress' 2004 request that the FCC provide a comprehensive
summary and analysis of the factual and legal landscape surrounding this
issue. Although I would have preferred a more thorough study, I support
this Report as a well-intentioned, if not complete, first step toward
launching a new national dialogue on this important matter. The Report
provides a helpful summary of the social science research regarding the
effects of exposure to violence in the media on the behavior of
children. It provides a preliminary discussion of the effectiveness of
the TV ratings system and blocking technologies and of the issues
regarding how government may define violence for regulatory purposes.

Congress may wish to build upon what the Commission has started by
digging deeper into the issues we raise today. For instance, further
discussion should probe into many areas by better researching the
answers to many important questions, including:

-   What additional actions can parents take to protect their children?

-   How can industry and government help educate parents regarding their
    options?

-   How effective are screening and content selection technologies that
    are currently available to families? and

-   What constitutional challenges lie ahead should Congress and the
    Commission decide to enact and implement a new anti-violence regime?

In my view, the next step should be to review fully the screening and
content selection tools parents currently have and find ways that
industry and government can help educate parents regarding those
options. Parents should be the first and last line of defense in
protecting their children from excessively violent content, or any other
content that may cause harm to children. Unfortunately, today's Report
does not sufficiently brief Congress on the full range of tools
available or what can be done to mobilize parents in this pursuit. I
hope that our Report does not lull some into thinking that government
action alone is the answer to the television violence pandemic. By
itself, government action would be an insufficient cure. Even if
Congress were able to enact flawlessly worded legislation that enjoyed
perfect enforcement, parents play the most important role in deciding
what is appropriate for their families. While government can and should
do all that it can to protect children, parents should not shirk their
primary responsibility to be actively engaged in their upbringing.

Fortunately, today's parents have at their disposal more choices in
parental controls and blocking technologies than ever before. Never have
parents been more empowered to choose what their children should and
should not watch. Since January 2000, as required by Congress, all TV
sets with screens 13 inches or larger come equipped with the V-chip,
which allows parents to block programs based on the TV rating assigned
to those programs. Cable operators provide parental controls in both
their analog and digital set-top boxes, with more advanced controls in
the digital boxes. DBS subscribers have access to parental controls that
allow blocking by channel, by program, by time and/or by TV rating. Tivo
offers KidsZone, a tool that combines editorial recommendations from
experts with technology for parents to select the shows they want their
children to watch. Moreover, all consumers have an unprecedented amount
of control over what they watch and when they watch it through DVDs,
programs that are downloadable from websites and through time-shifting
technologies such as digital video recorders.

As discussed in the Report, however, research has shown that while the
vast majority of parents are concerned about violent content on TV, very
few of them use most parental controls. It seems that many parents do
not have sufficient knowledge about these technologies, and about the TV
ratings system, to use parental controls effectively. Industry and
government should encourage additional consumer education so that
parents can learn about the tools available to them. Campaigns aimed at
educating parents, such as thetvboss.org and pauseparentplay.org, are a
great start. Their websites provide detailed practical information about
the V-chip, cable and satellite controls and TV ratings, among other
things. Also, groups like Common Sense Media and the Parents Television
Council offer reviews of TV shows and movies to help provide guidance to
parents. More needs to be done, however, to make a connection between
parental concerns about content inappropriate for their children and
parental use of tools that will help them make and enforce their
programming choices. I strongly encourage the private sector and public
interest groups to continue their work in this pursuit.

Meanwhile, even though the market is developing and promoting
technological solutions that may help parents control the television
content that their children view, Congress still may deem it necessary
to place statutory restrictions on the broadcast of excessively violent
content. The Commission would be remiss if it did not underscore to
Congress that such a voyage, although noble in its goal, will lead us
through uncharted constitutional waters. I am disappointed that this
Report does not provide more than a cursory mention of these important
legal issues. It fails to illuminate a path for Congress to follow in
order to safely avoid what legal pitfalls may lie ahead. Should Congress
pursue the laudable endeavor of protecting America's children from
excessive television violence through new statutory mandates, it should
first take the step of seeking additional constitutional legal advice.
Any action should be conducted in a prudent manner that withstands
constitutional muster. The 39 House members who directed us to conduct
our inquiry demanded as much when they asked the Commission specifically
to address in this Report the "constitutional limitations" in defining
"excessively violent programming that is harmful to children" or in
"constraining or prohibiting broadcast of such material during hours
when children are likely to be a significant or part of the broadcast
viewing audience." I fear that our Report may fall short of their
request.

Additionally, this Report briefly outlines court decisions upholding the
Commission's authority to regulate the broadcast of indecent content by
restricting the airing of such content during certain hours. I note that
the brief constitutional discussion in the Report focuses solely on the
regulation of [broadcast]{.underline} television. Other possible
mandates mentioned in the Report, such as requiring MVPDs to provide
channels on family tiers or on an à la carte basis, would require the
regulation of non-broadcast entities, possibly cable operators, DBS
providers and other MVPDs. Accordingly, before Congress adopts any of
these possible mandates, I suggest that Congress seek analysis of such
regulation under the applicable constitutional standard. Potential
Congressional action against television violence based upon our Report
should only be considered in the limited context of broadcasting because
the Commission has not offered sufficient legal analysis to support
broader regulation.

In sum, I support this Report and hope that it is helpful to Congress.
This is only the first step in what I hope will be a comprehensive study
of governmental options to inform the national debate over television
violence. The governmental interest at stake -- protecting children from
excessively violent television programming -- is powerful, of course.
Nonetheless, historically, courts have balanced similar interests
against the First Amendment rights of broadcasters with mixed results.
As our experience with the indecency laws has shown, enforcement of such
regulations involves the difficult task of defining the inappropriate
content and then applying that definition in the context of specific
programming. Defining excessive violence in a legally sustainable way
and applying that definition will be at least as difficult. As recent
tragedies have reminded us, we live in an often violent world. News
reports, documentaries and other television programs must address
violent topics, almost by necessity, which makes defining excessive
violence that much more difficult. While we should encourage Congress'
further examination of this issue, having a new statutory regime
regulating television violence overturned by the courts on
constitutional grounds only would undermine the very crusade against
television violence that any prospective legislation may intend to
address. Such a defeat could set back the cause for years. In the
meantime, as a society, we should do all that we can to achieve our goal
through all available means. Our children deserve no less.

[^1]: *See* Nielsen Media Research (for the 2004-2005 season).

[^2]: *Id.* Other researchers have found that children ages 0-6 watch an
    average of one hour of television a day. *See* Kaiser Family
    Foundation, *Zero to Six: Electronic Media in the Lives of Infants,
    Toddlers, and Preschoolers* (Fall 2003) ("*Kaiser Kids and Media
    Report*"); *see also*, Harris Interactive, *Born to Be Wired: A New
    Media Landscape Comes of Age*, *at*
    <http://us.i1.yimg.com/us.yimg.com/i/promo/btbw_2003/btbw_execsum.pdf>
    (finding that 13-24 year olds watch, on average, 13.6 hours of
    television per week).

[^3]: *See, e.g.,* *Kaiser Kids and Media Report* at 7 (stating that 30%
    of children 0-3 years old have a television in their bedroom and 43%
    of children 4-6 have a television in their bedroom); *Id.* at 20;
    Knowledge Networks/SRI, *How Children Use Media Technology*
    (*2*003), *at*
    [http://www.sri.knowledgenetworks.com](http://www.sri.knowledgenetworks.com/)
    (finding that 6 out of 10 8-17-year-old children had televisions in
    their bedrooms, and 1 out of 3 of the same group have cable
    television).

[^4]: *See* *Children\'s Television Obligations of Digital Television
    Broadcasters,* Second Order on Reconsideration and Second Report and
    Order, 21 FCC Rcd 11065, 11066 (citations omitted).

[^5]: *See*, *e.g*., U.S. Congress, House Committee on Interstate and
    Foreign Commerce, *Investigation of Radio and Television Programs*,
    82nd Cong., 2d Sess. (1952); National Commission on the Causes and
    Prevention of Violence (1969); Surgeon General\'s Scientific
    Advisory Commission on Television and Social Behavior (1972);
    *Report on the Broadcast of Violent, Indecent, and Obscene
    Material*, 51 F.C.C.2d 418 (1975); Federal Trade Commission,
    *Marketing Violent Entertainment to Children: A Review of
    Self‑Regulation and Industry Practices in the Motion Picture, Music
    Recording & Electronic Games Industries* (2000) ("*2000 FTC
    Report*"); and *Youth Violence: A Report of the Surgeon General*
    (2001) ("*2001 SG Report*").

[^6]: *See New Poll Finds Escalating Violence in Children's TV Now a
    Crisis for Parents*,
    <http://media.prnewswire.com/en/jsp/main.jsp?resourceid=3051704>,
    October 10, 2005 (reporting that poll conducted by the American
    Business Research Corporation found that nine out of ten parents
    with children aged 1-6 believed that violence in children's
    programming had a serious negative impact); *see* *also* Comments of
    Jennifer Christenson (urging FCC to "work to lessen, even
    better---end violent programming on television."); Carmen Hank
    (calling on the FCC to "restrict the amount of violence shown on any
    TV program by any station."); and Aaron Pavkov (asking the FCC "to
    reign \[sic\] in violent television programming."). On the other
    hand, several commenters state that the Commission should not
    regulate television violence and that parents should be ultimately
    responsible for what content their children can access. *See*
    Comments of Noelle Stout (opining that individuals should "make
    their own choices based on their sensitivity to violence rather than
    the government trying to define a common law for all."); Comments of
    Chris Spedaliere (stating that it should be the "parents'
    responsibility to tell their children what they can or cannot watch
    and the government should have no part in it at all.").

[^7]: Letter from Hon. Joe Barton, Chairman, U.S. House of
    Representatives Committee on Energy and Commerce, *et.* *al.*, to
    Hon. Michael K. Powell, Chairman, FCC (Mar. 5, 2004) ("House
    Commerce Committee Letter"). On March 14, 2005, Senators Rockefeller
    and Hutchison introduced *The Indecent and Gratuitous and
    Excessively Violent Programming Control Act of 2005* which addressed
    related issues. *See* Cong. Rec. S2649 (Mar. 14, 2005).

[^8]: *Violent Television Programming and Its Impact on Children*, 19
    FCC Rcd 14394 (2004).

[^9]: *See infra* ¶ 12. We note that most of these studies examined both
    broadcast and cable television, and some studies also included other
    media, including films and video games.

[^10]: There has been some dispute regarding the amount of research in
    the field of television violence and aggression. *Compare, e.g.,*
    American Academy of Pediatrics, *Media Violence*, 108 Pediatrics
    1222, 1223 (Nov. 2001) ("\[m\]ore than 3500 research studies have
    examined the association between media violence and violent
    behavior; all but 18 have shown a positive relationship") *with*
    Donnerstein, *Mass Media Violence: Thoughts on the Debate*, 22
    Hofstra L. Rev. 827, 828 (1994) ("There are not three thousand
    studies on television violence. There are perhaps three thousand
    studies on television. But there probably are approximately two
    hundred or two hundred and fifty studies directly related to
    violence in the media."). Craig Anderson states that most of the
    discrepancies in the claims about how many studies have been
    conducted are the result of differing definitions of what
    constitutes a "study." Some scholars include every publication that
    discusses media violence in scientific journals or books, regardless
    of whether or not it reports new data. Anderson states that this
    leads to the very high numbers of studies cited. Other researchers
    include in their definition only original empirical studies of the
    effects of exposure to television violence on some form of
    aggressive behavior. Anderson states that this leads to a much lower
    number of reported studies. He states that even in this restrictive
    definition, there is room for ambiguity. Many published empirical
    articles that have original results (*i.e*., results from new
    samples of participants) contain more than one study. Anderson
    states that, in any case, the number of independent, original
    studies is quite large, and the results are generally consistent in
    finding a positive relationship between television violence and
    aggression. Anderson Comments at 2-3.

[^11]: *See*, *e.g*., Paik & Comstock, *Effect of Television Violence on
    Antisocial Behavior: A Meta-Analysis*, Communication Research 21:4,
    516-46 (1994).

[^12]: *Third National TV Violence Study* at 5, 7 (Federman ed.)
    ("*Third National TV Violence Study Summary*"). This study involved
    media researchers at four universities and an oversight council and
    was funded by the National Cable Television Association (now the
    National Cable & Telecommunications Association). The study was not
    limited to broadcast television but also included non-broadcast
    program networks (including some premium channels, such as HBO).

[^13]: *See*, *e.g*., Huesmann, *et*. *al*., *Longitudinal Relations
    Between Children\'s Exposure to TV Violence and Their Aggressive and
    Violent Behavior in Young Adulthood: 1977‑1992*, Developmental
    Psychology, Vol. 39, No. 2, 201‑ 221 (2003) ("*Longitudinal
    Relations Study"*) (examining the longitudinal relationship between
    television violence viewing at ages 6 to 10 and adult aggressive
    behavior about 15 years later for a sample growing up in the 1970s
    and 1980s and concluding that childhood exposure to media violence
    predicts young adult aggressive behavior for both males and
    females.).

[^14]: *See 2001 SG Report* at Appendix 4-B.

[^15]: *See, e.g.,* Gentile, D.A., & Anderson, C.A., *Violent Video
    Games: Effects of Youth and Public Policy Implications,* Chapter in
    N. Dowd, D. G. Singer, & R. F. Wilson (Eds.), *Handbook of Children,
    Culture, and Violence*, 225-246 (2006); Carnagey, N. L., & Anderson,
    C.A., *The Effects of Reward and Punishment in Violent Video Games
    on Aggressive Affect, Cognition, and Behavior*, Psychological
    Science, 16, 882-889 (2005); Anderson, C.A*., An Update on the
    Effects of Violent Video Games*, Journal of Adolescence*,* 27*,*
    113-122 (2004); Anderson, C.A., Berkowitz, L., Donnerstein, E.,
    Huesmann, R.L., Johnson, J., Linz, D., Malamuth, N., & Wartella, E.,
    *The Influence of Media Violence on Youth*, Psychological Science in
    the Public Interest, 4, 81-110 (2003).

[^16]: *See* Anderson Comments at 1-2, citing Anderson, *et. al*., *The
    Influence of Media Violence on Youth,* Psychological Science in the
    Public Interest, Vol. 4, No. 3 (Dec. 2003) (concluding that exposure
    to media violence \[movies, television, music, and videogames\] has
    a statistically significant association with aggression and violence
    among youth).

[^17]: *Id.*

[^18]: Anderson Comments at 2; *see also* Children's and Media Policy
    Coalition Comments at 4 (agreeing that children who are exposed to
    violent programming face a higher risk of suffering from harmful
    consequences). Jerry Kroth, an Associate Professor for Graduate
    Studies in Counseling Psychology, Education, and Pastoral
    Ministries, at Santa Clara University, submitted comments purporting
    to demonstrate that several dozen youth deaths can be attributed to
    individuals copying media depictions of antisocial behavior. *See*
    Kroth & Forrest, *Psychology Underground: From Politically Correct
    Orthodoxies to a New Century of Inquiry*, Academic Renewal Press
    (2001).

[^19]: Joanne Cantor has studied the effects of media violence for more
    than 30 years. She has published several scholarly articles on the
    subject, was a senior researcher on the *National Television
    Violence Study*, and has testified numerous times before the U.S.
    House and Senate, as well as before the FCC.

[^20]: Cantor Comments at 1 (internal citations omitted).

[^21]: Testimony of Dale Kunkel before the United States House of
    Representatives, Committee on Energy and Commerce, September 13,
    2004.

[^22]: Such critics include the American Civil Liberties Union ("ACLU")
    (*see* Comments at 1); Media Associations (*see* Comments at 13);
    and the National Association of Broadcasters ("NAB") (*see* Comments
    at 7-8).

[^23]: CMPC Reply Comments at 2-3.

[^24]: *2000 FTC Report* at Appendix A (footnotes omitted) (emphasis
    added).

[^25]: *See* Michael Shimanovsky, *Influences Exerted on the Child
    Viewer When Exposed to Violent Imagery in Television and Print
    Advertising,* Journal of Evolutionary Psychology (October 2006).

[^26]: *See* Sandra Boodman, *Solo Viewing, Bad Endings; Watching
    Violent TV May Cost Kids Friends,* Washington Post, April 11, 2006,
    at F1.

[^27]: American Academy of Pediatrics, et. al, *Joint Statement on the
    Impact of Entertainment Violence on Children, Congressional Public
    Health Summit* (July 2000).

[^28]: *2001 SG Report* at Appendix 4-B.

[^29]: *See Longitudinal Relations Study,* at 201‑221 (2003). There have
    been other studies attempting to show that the introduction of
    television in society is linked to a subsequent increase in criminal
    activity. *See* Centerwell, *Exposure to Television as a Risk Factor
    for Violence*, Am. J. of Epidemiology Vol. 129 at 643-652 (1989)
    (introduction of television in South Africa in the 1970s purportedly
    linked to subsequent violent activity in that country); Centerwall,
    *Exposure to Television as a Cause of Violence*, Public
    Communication and Behavior, at 1-58 (Comstock, ed. Academic Press
    1989) (stating the same). However, these studies have come under
    heavy criticism as being poorly designed and lacking in scientific
    value. *See*, *e.g*., Wilson, *Connections Among Television, Guns
    and Violence*, presented at the Manhattan Institute for Policy
    Research--1998 Annual James Q. Wilson Lecture, available at
    <http://www.manhattan-institute.org/html/jqw1998.htm>; Rhodes, *The
    Media Violence Myth*, available at <http://www.abffe.com/myth1.htm>;
    Fowles, *Missing Link*--*The Bum Rap Against TV Violence*, available
    at <http://www.reason.com/0103/fe.jf.missing.shtml>.

[^30]: *Longitudinal Relations Study*, at 216-217.

[^31]: Wang, *et*. *al*., *Effects of Violent Media on Adolescents With
    Disruptive Behavior Disorder As Compared to Control Subjects: MRI
    Activation Patterns in Frontal Lobe*, paper presented a the 88th
    Scientific Assembly and Annual Meeting of the Radiological Society
    of North America, December 2002. *See also* Mathews, *et. al*.,
    *Brain Activation and Violent Video Games*, presented at the 2002
    Radiological Society of North America annual meeting; Surface*,
    Imaging Video Violence*, Radiology Today, March 31, 2003.

[^32]: *See* CSP Comments at 1.

[^33]: [http://www.sosparents.org/Brain%20Research%20Study.htm](http://www.sosparents.org/Brain Research Study.htm).

[^34]: These eight factors are: (1) the nature of the perpetrator,
    including in particular whether the perpetrator is attractive; (2)
    the motive or reason for the violence, including whether it is
    morally defensible or unjustified; (3) the presence of weapons; (4)
    whether the violence is extensive or graphic; (5) whether the
    violence seems realistic; (6) whether the violence is explicitly
    rewarded or goes unpunished; (7) the consequences of violence for
    the victim; (8) whether the violence is portrayed as humorous.
    Wilson, Smith, Potter, Kunkel, Linz, Colvin, and Donnerstein,
    *Violence in Children's Television Programming: Assessing the
    Risks*, Journal of Communications, Mar. 2003. This study
    investigated the nature and extent of violence contained in
    television programming that targets children aged 12 and younger.
    The measures employed in this content analysis are grounded in
    previous experimental research that has identified contextual
    features that either diminish or enhance the risk of harmful effects
    associated with viewing violent portrayals. This report uses the
    database from the *National Television Violence Study* (Wilson et
    al., 1998), which involved an unusually large and representative
    sample of programming.

[^35]: *See* University of California, Santa Barbara *et al*., *National
    Television Violence Study: Scientific Papers*, 1994-1995, I-35
    (Mediascope, Inc. ed., 1996).

[^36]: *See* Andrew O'Hehir, *The Myth of Media Violence*, *at*
    <http://www.salon.com/index.html>, March 17, 2005 (critiquing
    research finding television violence is harmful to children). Some
    have also suggested that the real problem is not with particular
    shows but the fact that children are spending substantial amounts of
    time watching television. *See* Robinson, Wilde, Navracruz, Haydel,
    and Varady, *Effects of Reducing Children's Television and Video
    Game Use on Aggressive Behavior: A Randomized Controlled Trial*,
    Archives of Pediatrics & Adolescent Medicine, Vol 155, at 17-23
    (2001) (reducing children's television viewing times, along with
    their use of electronic games, for six months reduces by half
    incidents of aggressive behavior).

[^37]: Media Coalition Comments at 5-6.

[^38]: Media Associations Comments at 13; NAB Comments at 7.

[^39]: Jonathan Freedman is currently the vice-president and principal
    of the University of Toronto Scarborough. He has written several
    scholarly works on the flaws inherent in media violence research
    over the course of his 40-year career, including *Media Violence and
    Its Effect on Aggression: Assessing the Scientific Evidence*,
    University of Toronto Press (2002); *Violence in the Mass Media and
    Violence in Society: The Link is Unproven*, 12(11) The Harvard
    Mental Health Letter 4-6 (1996); *Viewing Violence Does Not Make
    People More Aggressive*, 22 Hofstra Law Review 833 (1994);
    *Television Violence and Aggression: What the Evidence Shows*, 8
    Applied Social Psychology Annual 144 (1988); *Television Violence
    and Aggression: A Rejoinder*, 100 Psychological Bulletin, 372
    (1986); *Effect of Television Violence on Aggressiveness*, 96
    Psychological Bulletin, 227 (1984).

[^40]: Media Associations Comments at 13.

[^41]: Media Associations Comments at 12-13; *see also* Michael Males
    Comments at 5 (noting that "laboratory studies of psychological and
    sociological phenomena are weak tools, prone to unpredictable
    biases," such as experimenter effects).

[^42]: Field experiments are experiments done in natural settings, as
    opposed to a laboratory. These experiments show the subjects
    programs in the subjects' homes or classrooms and observe behavior
    in the school playground or equivalent setting.

[^43]: Media Associations Comments at 15.

[^44]: *Id.* at 16, 20; *see also* Media Institute Comments at 4
    (stating that the Federal Trade Commission recently reviewed the
    body of scientific research in the area and found that most
    researchers agree that "exposure to media violence alone does not
    cause a child to commit a violent act" and that media violence "is
    not the sole, or even the most important, factor in contributing to
    youth aggression, anti-social attitudes, and violence"); *see also*
    ACLU Comments at 1-2 (citing the same).

[^45]: CMPC Reply Comments at 7-8.

[^46]: Michael Males is a Senior Researcher for the Center on Juvenile
    and Criminal Justice and a Sociology Instructor at the University of
    California, Santa Cruz. He has written extensively on youth and
    social issues in the *New York Times* and academic journals.

[^47]: Males Comments at 9.

[^48]: *Id.* at 8-9.

[^49]: *Id.*

[^50]: *Id.*

[^51]: *Id.*

[^52]: Report to the Minister of Broadcasting of the Working Group: TV
    Violence Project, *Towards Precautionary Risk Management of TV
    Violence in New Zealand* at 19 (April 2004). The working group
    concluded in a related report that "despite occasional claims to the
    contrary and the proliferation of studies, the case that television
    can be regarded as a necessary and sufficient cause of societal
    violence remains unconfirmed." King, Bridgman, Smith, Bell, King,
    Harvey, Crothers, and Hassal, *Television Violence in New Zealand: A
    Study of Programming and Policy in International Context*, at
    Section A-1 (2003).

[^53]: *2001 SG Report* at Appendix 4-B (also noting that "\[d\]espite
    considerable advances in research, it is not yet possible to
    describe accurately how much exposure, of what types, for how long,
    at what ages, for what types of children, or in what types of
    settings will predict violent behavior in adolescents and adults").

[^54]: *See, e.g.,* American Academy of Pediatrics, et. al, *Joint
    Statement on the Impact of Entertainment Violence on Children,
    Congressional Public Health Summit* (July 2000) (encouraging more
    study on the impact of violent entertainment on children and
    dialogue about what can be done to "enhance the health and
    well-being of America's children"); *Parents, Media and Public
    Policy: A Kaiser Family Foundation Survey* (Fall 2004) (a majority
    of parents say they are "very" concerned about the amount of
    violence that their children are exposed to on TV); SRBI/Time
    Magazine Poll (Mar. 18, 2005) (66% of people believe there is too
    much violence on television).

[^55]: *See* *House Commerce Committee Letter* at 1-2.

[^56]: *Winters v. New York*, 333 U.S. 507, 510 (1948) (magazines
    devoted to accounts of criminal deeds and stories and pictures of
    crime and bloodshed were "as much entitled to the protection of free
    speech as the best of literature."). But some have suggested that
    the current prohibitions on obscene and indecent speech could be
    lawfully applied to reach violence. *See, e.g*., Gloria Tristani, On
    Children and Television, Keynote Address at the Annenberg Public
    Policy Center\'s 5th Annual Conference on Children and Media (June
    26, 2000), available at
    http://www.fcc.gov/Speeches/Tristani/2000/spgt009.html.

[^57]: *FCC v. Pacifica Foundation*, 438 U.S. 726, 744 (1978). *See
    Action for Children's Television v. FCC*, 58 F.3d 654, 660 (D.C.
    Cir. 1995) (en banc) ("*ACT III*").

[^58]: *FCC v. League of Women Voters*, 468 U.S. 364, 380-81 (1984);
    *Prayze FM v. FCC*, 214 F.3d 245, 252 (2d Cir. 2000).

[^59]: *Pacifica*, 438 U.S. at 748-50, *citing* *Ginsberg v. New York*,
    390 U.S. 629 (1968).

[^60]: *Pacifica*, 438 U.S. at 748-50.

[^61]: *ACT III*, 58 F.3d at 656.

[^62]: *Id.* at 661.

[^63]: *Id. See id.* at 661-63, *citing Bethel School District No. 403
    v. Fraser*, 478 U.S. 675, 684 (1986); *Pacifica*, 438 U.S. at
    749-50; *Ginsberg v. New York*, 390 U.S. 629, 641-43 (1968).

[^64]: Pappas Comments at 8.

[^65]: *See* Center for Creative Voices in Media Comments at 9; Media
    Associations Comments at 58-59; Media Coalition Comments at 4.

[^66]: *Pacifica*, 438 U.S. at 746, *quoting Chaplinsky*, 315 U.S. at
    572.

[^67]: *See ACT III*, 58 F.3d at 661 (citing evidence that parents are
    not in a position to exercise effective supervision over what their
    children see and hear on television and radio).

[^68]: *See infra ¶¶* 48 *et seq*.

[^69]: *ACT III*, 58 F.3d at 663.

[^70]: U.S. Department of Education, *Strong Families, Strong Schools:
    Building Community Partnerships for Learning* (1994).

[^71]: *Kaiser Kids and Media Report* at 16.

[^72]: Although the government does not necessarily need evidence of
    clinically measurable injury to demonstrate a compelling interest in
    protecting children from harm, *see ACT III*, 58 F.3d at 660-63,
    legislative findings are likely to be important in defining the
    government interests at stake and in demonstrating use of narrowly
    tailored means. We note that courts have given Congress far more
    deference than the Commission with regard to the evidence necessary
    to sustain such restrictions. *See Turner I*, 512 U.S. at 666
    ("Congress is not obligated, when enacting its statutes, to make a
    record of the type that an administrative agency or a court does to
    accommodate judicial review.").

[^73]: *See infra* Section IV.

[^74]: 47 U.S.C. § 303(x).

[^75]: *See Technical Requirements to Enable Blocking of Video
    Programming Based on Program Ratings*, 13 FCC Rcd 11248 (1998); 47
    C.F.R. § 15.120(b).

[^76]: *See* Knowledge Networks SRI, *Home Technology Monitor Survey*,
    Spring 2004; Nielsen Media Research U.S. TV Household Estimates,
    2003-04.

[^77]: *See* Broadcasting & Cable TVFAX, *TV Watch "Exposes" V-chip
    Critics* at 2 (July 8, 2005).

[^78]: *See* *Parents, Media and Public Policy: A Kaiser Family
    Foundation Survey* (Fall 2004). The survey asked parents about their
    concerns regarding media content, their children's exposure to such
    content, and the appropriate measures to limit exposure to
    inappropriate content.

[^79]: *Id.* at 7.

[^80]: Annenberg Public Policy Center, *Parents' Use of the V-Chip to
    Supervise Children's Television Use* 3 (2003).

[^81]: *Id.* at 4.

[^82]: Parents Television Council, *PTC Declares the Industry's V-Chip
    Education Campaign a Failure* (March 15, 2007), available at
    www.parentstv.org/PTC/publications/release/2007/0305.asp.

[^83]: *See* 47 U.S.C. §§ 544(d)(2) & 560.

[^84]: *See*, *e.g.*,
    http://www.comcast.com/corporate/customers/parentalcontrols.html
    ("Activated by a PIN number, you can set Parental Controls on your
    TV and/or cable set-top box to control the programs that can be
    viewed on your TV. There are three ways to block programs: By
    Channel\[;\] By Rating\[;\] \[or\] By Time Period.")

[^85]: Although cable operators provide some basic parental controls to
    analog cable subscribers, those parental controls (1) only are
    available to subscribers using certain analog set-top boxes, and
    (2) only allow subscribers to block entire channels. *See*, *e.g.*,
    http://www.controlyourtv.org/DetailPage.php?PageID=44.

[^86]: *See NCTA Statistics*, *available at*
    http://www.ncta.com/ContentView.aspx?contentId=54.

[^87]: A digital set-top box or a Digital Cable Ready television is
    required to receive digital cable service. *See* *Implementation of
    Section 304 of the Telecommunications Act of 1996:* *Commercial
    Availability of Navigation Devices*, 18 FCC Rcd 518 (2003). In order
    to receive encrypted digital cable programming on a Digital Cable
    Ready set, a CableCARD is required. *See id.* at 519. According to a
    report recently filed by NCTA in CS Docket No. 97-80, the 11 largest
    cable operators have deployed approximately 259,000 CableCARDs. See
    Letter from Neal M. Goldberg, Vice President and General Counsel,
    National Cable and Telecommunications Association, to Marlene H.
    Dortch, Secretary, Federal Communications Commission (filed March
    26, 2007). Cable-provided parental controls are not available to
    subscribers using unidirectional Digital Cable Ready devices. *See,
    e.g.,* http://www.comcast.com/Customers/FAQ/FaqDetails.ashx?Id=2656;
    http://www.bendcable.com/cablecard.cfm.

[^88]: *See ACT III*, 58 F.3d at 661.

[^89]: *See* 47 U.S.C. § 303(w); *Video Programming Ratings*, 13 FCC Rcd
    8232 (1998). In finding the voluntary ratings system consistent with
    the requirements of Sections 551(e)(1) and (2) of the
    Telecommunications Act of 1996, the Commission noted that the
    ratings system had been voluntarily proposed by a broad segment of
    the television industry and had been explicitly endorsed by nine
    prominent advocacy groups, including the American Medical
    Association, the American Academy of Pediatrics, American
    Psychological Association, Center for Media Education, Children's
    Defense Fund, Children Now, National Association of Elementary
    School Principals, National Education Association and the National
    PTA. Producers and distributors of uncut motion pictures have an
    alternative to the widely used television industry ratings system:
    they may use the Motion Picture Association of America's rating
    system (G, PG, PG-13, R and NC-17) in lieu of the TV ratings system.

[^90]: The age-based ratings are: TV-Y (All Children); TV-Y7 (Directed
    to Older Children -- age 7 and older); TV-G (General Audience);
    TV-PG (Parental Guidance Suggested); TV-14 (Parents Strongly
    Cautioned -- may be unsuitable for children under 14); and TV-MA
    (Mature Audience Only -- may be unsuitable for children under 17).
    The content-based descriptors are: V (violence); FV (fantasy
    violence in children's programming); S (sexual content); D
    (suggestive dialogue); and L (strong language in programming).

[^91]: *Parents, Media and Public Policy: A Kaiser Family Foundation
    Survey* (Fall 2004).

[^92]: *Id.* at 6. While 28 percent of parents of young children knew
    what the TV-Y7 rating means (programming directed to children age 7
    and older), 13 percent thought it meant the opposite (programming
    directed to children under 7) and the rest did not know (38 percent)
    or had not ever heard of the ratings system at all (21 percent).

[^93]: Parents Television Council, *PTC Declares the Industry's V-Chip
    Education Campaign a Failure* (March 15, 2007), available at
    www.parentstv.org/PTC/publications/release/2007/0305.asp.

[^94]: *See Marketing Violent Entertainment to Children: A Fifth
    Follow-up Review of Industry Practices in the Motion Picture, Music
    Recording & Electronic Game Industries, Federal Trade Commission*,
    ("*FTC Report*") at 33, *available at*
    [http://www.ftc.gov/reports/violence/070412MarketingViolentEChildren.pdf]{.underline}
    (rel. Apr. 12. 2007) (stating the "\[p\]arents should be able to
    rely on complete rating systems where decisions are made after a
    fair review of all appropriate content, and where rating and
    labeling information reasonably informs them about the content").

[^95]: David A. Walsh & Douglas A. Gentile, *A Validity Test of Movie,
    Television, and Video-Game Ratings*, 107 Pediatrics 1302, 1306
    (2001).

[^96]: *See* Dale Kunkel, *et al.*, *Deciphering the V-Chip: An
    Examination of the Television Industry's Program Rating Judgments*,
    52 Journal of Communications 112 (2002).

[^97]: *See id.* at 132; *see also id.* at 131 (finding that 20 percent
    of shows rated TV-G -- supposedly appropriate for all ages --
    included objectionable language, including "bastard," "bitch,"
    "shit," and "whore").

[^98]: *Id.* at 136.

[^99]: *Id.*

[^100]: Barbara K. Kaye & Barry S. Sapolsky, *Offensive Language in
    Prime-Time Television: Four Years After Television Age and Content
    Ratings*, 48 Journal of Broadcasting & Electronic Media 554, 563-64
    (2004); *see also* *Effectiveness of Media Rating Systems:
    Subcommittee of Science, Technology, and Space of the Senate Comm.
    On Commerce, Science & Transp.*, 107^th^ Congress (2004) (statement
    of Ms. Patti Miller, director, Children and the Media Program for
    Children Now) ("Can parents depend on the accuracy of the ratings
    systems? Sadly, the answer is no.").

[^101]: Parents Television Council, *The Ratings Sham: TV Executives
    Hiding Behind A System That Doesn't Work* (April 2005). Annenberg
    Public Policy Center, *Parents' Use of the V-chip to Supervise
    Children's Television Use* (Feb. 2003), at 4. PTC examined prime
    time entertainment programs from the first two weeks of the November
    2003, February 2004, and May 2004 sweeps on the seven commercial
    broadcast networks that existed at that time. The study period
    comprised 638 shows (totaling 528 hours). According to PTC, each of
    the networks studied inaccurately and inconsistently applied the TV
    ratings content descriptors to the programs under consideration. For
    example, 81 percent of CBS's TV-14-rated shows containing sexual
    dialogue lacked the D descriptor (suggestive dialogue) and 82
    percent of the WB's TV-14-rated shows containing sexual behavior
    lacked the S descriptor (sexual content). PTC ascribed this lack of
    accuracy to the fact that the networks rate their own programs.
    Several mothers that participated in the Annenberg study stated that
    because there are multiple televisions in their homes (the average
    family had four television sets), a child motivated to watch a
    blocked program can find it on a non-V-chip television. In addition,
    several of the study participants complained that the V-chip did not
    block content about which they were concerned -- specifically
    commercials, promotions for upcoming television programs, and news
    programs. Finally, several expressed dissatisfaction with the
    confusing nature of the TV ratings.

[^102]: *See* James T. Hamilton, *Who Will Rate the Ratings?* in *The
    V-Chip Debate: Content Filtering from Television to the Internet*
    133, 143, 149 (Monroe E. Price, ed. 1998); *see also FTC Report* at
    3 (reporting that some critics of the MPAA movie ratings system
    allege "ratings creep" and that "\[i\]t has been argued that studios
    have a financial incentive to obtain a PG-13 rating, a rating that
    does not restrict admission to anyone but tolerates a substantial
    amount of violent content attractive to 12- to 17-year-olds").

[^103]: *See id.* at 143.

[^104]: *Id.* at 149; *see also* Kunkel, 52 Journal of Communications at
    114 ("\[T\]he prospect that applying 'higher' ratings to a program
    could reduce audience size raises a self-interest concern regarding
    the accuracy with which judgments about program ratings are
    determined.").

[^105]: *See ACT III*, 58 F.3d at 661.

[^106]: *See* University of California, Santa Barbara *et. al*.,
    *National Television Violence Study: Scientific Papers*, 1994-1995,
    III-45 ("The well known admonition 'parental discretion advised' had
    a strong and positive effect on boys' interest in viewing
    reality-action programs, and the effect was strongest for boys in
    the older group. . . . Older boys were especially interested in the
    target movie when it was rated 'PG-13' or 'R' and completely avoided
    it when it was rated 'G.'"). *See also FTC Report* at 4-5
    (indicating that movie marketing targeted toward older teens may
    also attract younger teens).

[^107]: *See* *House Commerce Committee Letter* at 1.

[^108]: *Id.*

[^109]: A number of definitional attempts in the past have been unable
    to overcome this hurdle. For example, attempts to regulate \"excess
    violence\" defined as \"the depiction of acts of violence in such a
    graphic and/or bloody manner as to exceed common limits of custom
    and candor, or in such a manner that it is apparent that the
    predominant appeal of the material is portrayal of violence for
    violence\'s sake\" have been held "void for vagueness." A U.S.
    District Court found that the definition of the term makes the
    decision of what constitutes \"excess violence\" an entirely
    subjective one giving little, if any, objective guidance to those
    required to comply or to officials charged with enforcement. *See*
    *Allied Artists Pictures Corp. v. Alford*, 410 F. Supp. 1348 (W.D.
    Tenn. 1976) (striking down a local ordinance containing the term
    "excess violence" under void for vagueness doctrine in the context
    of the use of obscene language found in motion pictures); *see also*
    *Video Software Dealers Ass'n v. Webster*, 773 F. Supp. 1275, 1280
    (W.D. Mo. 1991), *aff'd* 968 F.2d 684 (8^th^ Cir. 1992) (finding
    unconstitutional a statute that included violent material within the
    definition of obscenity).

[^110]: NAB Comments at 43; NCTA Comments at 3; Media Associations
    Comments at 44; Media Institute Comments at 2 (maintaining that
    establishing a definition that can capture the nuanced depictions of
    violence seen in dramas, comedies, and educational features, while
    allowing for predictability in enforcement, would be a difficult
    task).

[^111]: *See* *Miller*, 413 U.S. at 24.

[^112]: *Pacifica*, 438 U.S. at 746 (Stevens, J., Rehnquist, J., and
    Burger, C.J., plurality) (citing *Chaplinksy*, 315 U.S. at 572).

[^113]: *Action for Children's Television v. FCC*, 852 F.2d 1332, 1340
    (D.C. Cir. 1988) ("*ACT I*").

[^114]: *See* *American Amusement Machine Association v. Kendrick*, 244
    F.3d 572, 576.

[^115]: *See* *1997 UCLA Television Violence Monitoring Report* at 8,
    *available at*
    [http://ccp.ucla.edu.Webreport96.thestudy.htm](http://ccp.ucla.edu.Webreport96.thestudy.htm/)
    ("1997 UCLA Report"); *see* *also* Schecter, *Savage Pastimes---A
    Cultural History of Violent Entertainment*, St. Martin's Press
    (2005) (citing the same).

[^116]: Pappas Comments at 5-6, citing *Third National TV Violence
    Study* at § II.D.1. Although the *National Television Violence
    Study* used this definition, it did not include news, sports, or
    religious programming within its survey because of contractual
    restrictions imposed by its sponsors.

[^117]: MIM Comments at 3. MIM states that depictions of simulated war
    activities, especially those purporting to be distant in time, would
    not meet the "outrageously offensive or outrageously disgusting"
    test. MIM states, however, that there are warlike activities that
    the average person would consider outrageously offensive or
    outrageously disgusting, such as a close-up depiction of a scalping,
    a beheading, or a mutilation. Other combative activities, such as a
    cowboy "shoot-out" or a laser gun battle in *Star Wars* would not
    get the same reaction of outrageousness or disgust. *Id*. at 3-4.

[^118]: *Id.*

[^119]: Media Institute Comments at 2. The Media Institute is a
    non-profit research foundation specializing in communications policy
    and First Amendment issues.

[^120]: *Id.* at 8.

[^121]: NAB Reply Comments at 6-7. NAB notes that the impossibility of
    defining violence in a precise, rational, and non-arbitrary manner
    is shown by the results of a survey of television violence conducted
    at Concordia College. This survey reportedly found 19 acts of
    violence in *The Little Mermaid*, an animated children's film, but
    only 12 acts of violence in Alfred Hitchcock's *North by Northwest*
    and 21 acts of violence in a documentary about the Civil War. NAB
    questions whether *North by Northwest* is really less violent and
    more suitable for young children than *The Little Mermaid*.

[^122]: We note that the courts have rejected arguments that the
    definition of indecency is unconstitutionally vague and overbroad.
    *See ACT I*, 852 F.2d at 1340.

[^123]: *See* *supra* note 34 (discussing the factors described by
    researcher Barbara Wilson).

[^124]: *See* *id.* (*citing* Wilson, Smith, Potter, Kunkel, Linz,
    Colvin, and Donnerstein, *Violence in Children's Television
    Programming: Assessing the Risks*, Journal of Communications (Mar.
    2003)). *See also Standards for the Depiction of Violence*, Issued
    By ABC, CBS, and NBC (December 1992) (suggesting factors relevant to
    whether portrayals of violence are gratuitous or excessive).

[^125]: Indecent and Gratuitous and Excessively Violent Programming
    Control Act of 2005, S. 616, 109th Cong. (2005).

[^126]: *Id.* at § 4.

[^127]: *See, e.g., FTC Report* at i, 4, 20-21 (discussing industry
    advertising initiatives, including the MPAA initiative not to
    advertise R-rated movies in media with an under-17 audience of more
    than 35 percent, but also noting that the industry continues to
    advertise unrated DVDs and R-rates movies on television shows
    popular with children under age 17, and that some advertising
    violated the MPAA standards).

[^128]: As a result of competition and choice, consumers in Hong Kong
    are paying less on their cable bills. From 1995 to 2002, Hong Kong's
    cable bills increased 13%. Then a new video competitor came on the
    scene with an a la carte option it called "true consumer choice."
    Since that time, the monthly bills for Hong Kong cable customers
    have fallen by 9%. In the United States, by contrast, cable prices
    have increased almost 20% since 2002 and more then 90% since 1995.

[^129]: *See* Nielsen Media Research ratings for week of March 19
    through 25, 2007, which reveal that six of the top ten broadcast
    shows among all households and five of the top show among adults
    18-49 contained graphic violent content.

[^130]: UCLA Center for Communication Policy, The UCLA Television
    Violence Report 1997.

[^131]: *Winters v. New York*, 333 U.S. 507, 510-11 (1948); *Interactive
    Digital Software Assoc. v. St Louis County*, 329 F.3d 954 (8^th^
    Cir. 2003); *American Amusement Machine Ass'n v. Kendrick*, 244 F.3d
    572 (7^th^ Cir 2001), *cert denied*, 122 S.Ct. 462 (2001); *Eclipse
    Enters. v. Gulotta*, 134 F.3d 63 (2^nd^ Cir. 1997); *Video Software
    Dealer's Ass'n v. Webster*, 968 F.2d 684 (8^th^ Cir. 1992); Allied
    Artists Pictures Corp. v. Alford, 410 F. Supp. 1348 (W.D. Tenn
    1976).

[^132]: Harry T. Edwards and Mitchell N. Berman, *Regulating Violence on
    Television*, 89 [Northwestern U.L. Rev.]{.smallcaps} 1487, 1502-03,
    1555 (1995).

[^133]: *Dying to Entertain: Violence on Prime Time Broadcast Television
    1998 to 2006,* Parents Television Council, Special Report, January
    2007, at 6.

[^134]: As the Supreme Court has held, and this Commission has argued
    passionately in court, "a licensed broadcaster is 'granted the free
    and exclusive use of a limited and valuable part of the public
    domain; when he accepts that franchise it is burdened by enforceable
    public obligations.'" *CBS v. FCC*, 453 U.S. 367, 388 (1969).

[^135]: A 2004 study of commercials during major sporting events found
    that almost one in five displayed behavior deemed unsafe or violent,
    and, as a result, urged parents to limit and supervise their
    children exposure to televised sports. See Robert F. Tamburro,
    Patricia L. Gordon, James P. D'Apolito and Scott C. Howard, *Unsafe
    and Violent Behavior in Commercials Aired During Televised Major
    Sporting Events*, 114 Pediatrics (Dec 2004), at 694-698.