**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.[^1] 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 young 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."[^2]
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.[^3] 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."[^4]

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.[^5] 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.[^6] 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;[^7] (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.

[^1]: *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.

[^2]: UCLA Center for Communication Policy, The UCLA Television Violence
    Report 1997.

[^3]: *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).

[^4]: Harry T. Edwards and Mitchell N. Berman, *Regulating Violence on
    Television*, 89 [Northwestern U.L. Rev.]{.smallcaps} 1487, 1502-03,
    1555 (1995)

[^5]: *Dying to Entertain: Violence on Prime Time Broadcast Television
    1998 to 2006,* Parents Television Council, Special Report, January
    2007, at 6.

[^6]: 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).

[^7]: 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.