II

106TH CONGRESS

2D SESSION H. R. 5350

To exempt agreements relating to voluntary guidelines governing telecast

material, movies, video games, Internet content, and music lyrics from

the applicability of the antitrust laws.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 2, 2000

Mr. SMITH of Texas (for himself and Mr. RYAN of Wisconsin) introduced the

following bill; which was referred to the Committee on the Judiciary

A BILL

To exempt agreements relating to voluntary guidelines governing telecast material, movies, video games, Internet

content, and music lyrics from the applicability of the

antitrust laws.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Children’s Protection

5 Act of 2000’’.

6 SEC. 2. FINDINGS.

7 Congress makes the following findings:
2

•HR 5350 IH

1 (1) Television is seen and heard in nearly every

2 United States home and is a uniquely pervasive

3 presence in the daily lives of Americans. The average

4 American home has 2.5 televisions, and a television

5 is turned on in the average American home 7 hours

6 every day.

7 (2) Television plays a particularly significant

8 role in the lives of children. Figures provided by

9 Nielsen Research show that children between the

10 ages of 2 years and 11 years spend an average of

11 21 hours in front of a television each week.

12 (3) Television has an enormous capability to in13 fluence perceptions, especially those of children, of

14 the values and behaviors that are common and ac15 ceptable in society.

16 (4) The influence of television is so great that

17 its images and messages often can be harmful to the

18 development of children. Social science research

19 amply documents a strong correlation between the

20 exposure of children to televised violence and a num21 ber of behavioral and psychological problems.

22 (5) Hundreds of studies have proven conclu23 sively that children who are consistently exposed to

24 violence on television have a higher tendency to ex-
3

•HR 5350 IH

1 hibit violent and aggressive behavior, both as chil2 dren and later in life.

3 (6) Such studies also show that repeated expo4 sure to violent programming causes children to be5 come desensitized to and more accepting of real-life

6 violence and to grow more fearful and less trusting

7 of their surroundings.

8 (7) A growing body of social science research

9 indicates that sexual content on television can also

10 have a significant influence on the attitudes and be11 haviors of young viewers. This research suggests

12 that heavy exposure to programming with strong

13 sexual content contributes to the early commence14 ment of sexual activity among teenagers.

15 (8) Members of the National Association of

16 Broadcasters (NAB) adhered for many years to a

17 comprehensive code of conduct that was based on an

18 understanding of the influence exerted by television

19 and on a widely held sense of responsibility for using

20 that influence carefully.

21 (9) This code of conduct, the Television Code of

22 the National Association of Broadcasters, articulated

23 this sense of responsibility as follows:

24 (A) ‘‘In selecting program subjects and

25 themes, great care must be exercised to be sure
4

•HR 5350 IH

1 that the treatment and presentation are made

2 in good faith and not for the purpose of sensa3 tionalism or to shock or exploit the audience or

4 appeal to prurient interests or morbid curi5 osity.’’.

6 (B) ‘‘Broadcasters have a special responsi7 bility toward children. Programs designed pri8 marily for children should take into account the

9 range of interests and needs of children, from

10 instructional and cultural material to a wide va11 riety of entertainment material. In their total12 ity, programs should contribute to the sound,

13 balanced development of children to help them

14 achieve a sense of the world at large and in15 formed adjustments to their society.’’.

16 (C) ‘‘Violence, physical, or psychological,

17 may only be projected in responsibly handled

18 contexts, not used exploitatively. Programs in19 volving violence present the consequences of it

20 to its victims and perpetrators. Presentation of

21 the details of violence should avoid the exces22 sive, the gratuitous and the instructional.’’.

23 (D) ‘‘The presentation of marriage, family,

24 and similarly important human relationships,

25 and material with sexual connotations, shall not
5

•HR 5350 IH

1 be treated exploitatively or irresponsibly, but

2 with sensitivity.’’.

3 (E) ‘‘Above and beyond the requirements

4 of the law, broadcasters must consider the fam5 ily atmosphere in which many of their programs

6 are viewed. There shall be no graphic portrayal

7 of sexual acts by sight or sound. The portrayal

8 of implied sexual acts must be essential to the

9 plot and presented in a responsible and tasteful

10 manner.’’.

11 (10) The National Association of Broadcasters

12 abandoned the code of conduct in 1983 after three

13 provisions of the code restricting the sale of adver14 tising were challenged by the Department of Justice

15 on antitrust grounds and a Federal district court

16 issued a summary judgment against the National

17 Association of Broadcasters regarding one of the

18 provisions on those grounds. However, none of the

19 programming standards of the code were challenged.

20 (11) While the code of conduct was in effect, its

21 programming standards were never found to have

22 violated any antitrust law.

23 (12) Since the National Association of Broad24 casters abandoned the code of conduct, program-
6

•HR 5350 IH

1 ming standards on broadcast and cable television

2 have deteriorated dramatically.

3 (13) In the absence of effective programming

4 standards, public concern about the impact of tele5 vision on children, and on society as a whole, has

6 risen substantially. Polls routinely show that more

7 than 80 percent of Americans are worried by the in8 creasingly graphic nature of sex, violence, and vul9 garity on television and by the amount of program10 ming that openly sanctions or glorifies criminal,

11 antisocial, and degrading behavior.

12 (14) At the urging of Congress, the television

13 industry has taken some steps to respond to public

14 concerns about programming standards and content.

15 The broadcast television industry agreed in 1992 to

16 adopt a set of voluntary guidelines designed to ‘‘pro17 scribe gratuitous or excessive portrayals of violence’’.

18 Shortly thereafter, both the broadcast and cable tele19 vision industries agreed to conduct independent

20 studies of the violent content in their programming

21 and make those reports public.

22 (15) In 1996, the television industry as a whole

23 made a commitment to develop a comprehensive rat24 ing system to label programming that may be harm-
7

•HR 5350 IH

1 ful or inappropriate for children. That system was

2 implemented at the beginning of 1999.

3 (16) Despite these efforts to respond to public

4 concern about the impact of television on children,

5 millions of Americans, especially parents with young

6 children, remain angry and frustrated at the sinking

7 standards of television programming, the reluctance

8 of the industry to police itself, and the harmful in9 fluence of television on the well-being of the children

10 and the values of the United States.

11 (17) The Department of Justice issued a ruling

12 in 1993 indicating that additional efforts by the tele13 vision industry to develop and implement voluntary

14 programming guidelines would not violate the anti15 trust laws. The ruling states that ‘‘such activities

16 may be likened to traditional standard setting efforts

17 that do not necessarily restrain competition and may

18 have significant procompetitive benefits . . . Such

19 guidelines could serve to disseminate valuable infor20 mation on program content to both advertisers and

21 television viewers. Accurate information can enhance

22 the demand for, and increase the output of, an in23 dustry’s products or services.’’.

24 (18) The Children’s Television Act of 1990

25 (Public Law 101–437) states that television broad-
8

•HR 5350 IH

1 casters in the United States have a clear obligation

2 to meet the educational and informational needs of

3 children.

4 (19) Several independent analyses have dem5 onstrated that the television broadcasters in the

6 United States have not fulfilled their obligations

7 under the Children’s Television Act of 1990 and

8 have not noticeably expanded the amount of edu9 cational and informational programming directed at

10 young viewers since the enactment of that Act.

11 (20) The popularity of video and personal com12 puter (PC) games is growing steadily among chil13 dren. Although most popular video and personal

14 computer games are educational or harmless in na15 ture, many of the most popular are extremely vio16 lent. One recent study by Strategic Record Research

17 found that 64 percent of teenagers played video or

18 personal computer games on a regular basis. Other

19 surveys of children as young as elementary school

20 age found that almost half of them list violent com21 puter games among their favorites.

22 (21) Violent video games often present violence

23 in a glamorized light. Game players are often cast

24 in the role of shooter, with points scored for each

25 ‘‘kill’’. Similarly, advertising for such games often
9

•HR 5350 IH

1 touts violent content as a selling point—the more

2 graphic and extreme, the better.

3 (22) As the popularity and graphic nature of

4 such video games grows, so do their potential to neg5 atively influence impressionable children.

6 (23) Music is another extremely pervasive and

7 popular form of entertainment. American children

8 and teenagers listen to music more than any other

9 demographic group. The Journal of American Medi10 cine reported that between the 7th and 12th grades

11 the average teenager listens to 10,500 hours of rock

12 or rap music, just slightly less than the entire num13 ber of hours spent in the classroom from kinder14 garten through high school.

15 (24) Teens are among the heaviest purchasers

16 of music, and are most likely to favor music genres

17 that depict, and often appear to glamorize violence.

18 (25) Music has a powerful ability to influence

19 perceptions, attitudes, and emotional state. The use

20 of music as therapy indicates its potential to in21 crease emotional, psychological, and physical health.

22 That influence can be used for ill as well.

23 SEC. 3. CONSTRUCTION.

24 This Act may not be construed as—
10

•HR 5350 IH

1 (1) providing the Federal Government with any

2 authority to restrict television programming, movies,

3 video games, Internet content, or music lyrics that

4 is in addition to the authority to restrict such pro5 gramming, movies, games, content, or lyrics under

6 law as of the date of the enactment of this Act; or

7 (2) approving any action of the Federal Govern8 ment to restrict such programming, movies, games,

9 content, or lyrics that is in addition to any actions

10 undertaken for that purpose by the Federal Govern11 ment under law as of such date.

12 SEC. 4. EXEMPTION OF VOLUNTARY AGREEMENTS ON

13 GUIDELINES FOR CERTAIN ENTERTAINMENT

14 MATERIAL FROM APPLICABILITY OF ANTI15 TRUST LAWS.

16 (a) EXEMPTION.—Subject to subsection (b), the anti17 trust laws shall not apply to any joint discussion, consider18 ation, review, action, or agreement by or among persons

19 in the entertainment industry for the purpose of devel20 oping and disseminating voluntary guidelines designed—

21 (1) to alleviate the negative impact of telecast

22 material, movies, video games, Internet content, and

23 music lyrics containing violence, sexual content,

24 criminal behavior, or other subjects that the enter25 tainment industry deems appropriate for children; or
11

•HR 5350 IH

1 (2) to promote telecast material that is edu2 cational, informational, or otherwise beneficial to the

3 development of children.

4 (b) LIMITATION.—The exemption provided in sub5 section (a) shall not apply to any joint discussion, consid6 eration, review, action, or agreement which—

7 (1) results in a boycott of any person; or

8 (2) concerns the purchase or sale of advertising,

9 including (without limitation) restrictions on the

10 number of products that may be advertised in a

11 commercial, the number of times a program may be

12 interrupted for commercials, and the number of con13 secutive commercials permitted within each interrup14 tion.

15 (c) DEFINITIONS.—In this section:

16 (1) ANTITRUST LAWS.—The term ‘‘antitrust

17 laws’’ has the meaning given such term in the first

18 section of the Clayton Act (15 U.S.C. 12) and in19 cludes section 5 of the Federal Trade Commission

20 Act (15 U.S.C. 45).

21 (2) INTERNET.—The term ‘‘Internet’’ means

22 the combination of computer facilities and electro23 magnetic transmission media, and related equipment

24 and software, comprising the interconnected world25 wide network of computer networks that employ the
12

•HR 5350 IH

1 Transmission Control Protocol/Internet Protocol or

2 any successor protocol to transmit information.

3 (3) MOVIES.—The term ‘‘movies’’ means theat4 rical motion pictures.

5 (4) PERSON IN THE ENTERTAINMENT INDUS6 TRY.—The term ‘‘person in the entertainment indus7 try’’ means a television network, any entity which

8 produces or distributes television programming (in9 cluding theatrical motion pictures), the National

10 Cable Television Association, the Association of

11 Independent Television Stations, Incorporated, the

12 National Association of Broadcasters, the Motion

13 Picture Association of America, each of the affiliate

14 organizations of the television networks, the Inter15 active Digital Software Association, any entity which

16 produces or distributes video games, the Recording

17 Industry Association of America, and any entity

18 which produces or distributes music, and includes

19 any individual acting on behalf of such person.

20 (5) TELECAST.—The term ‘‘telecast’’ means

21 any program broadcast by a television broadcast sta22 tion or transmitted by a cable television system.

23 (d) REPORT.—Not later than 12 months after the

24 date of the enactment of this Act, the Attorney General,
13

•HR 5350 IH

1 in conjunction with the Chairman of the Federal Trade

2 Commission, shall submit to Congress a report on—

3 (1) the extent to which the motion picture, re4 cording, and video game industry have developed or

5 enforced guidelines, procedures, or mechanisms to

6 ensure compliance by persons and entities described

7 in subsection (c)(4) with ratings or labeling systems

8 which identify and limit dissemination of sexual, vio9 lent, or other indecent material to children; and

10 (2) the extent to which Federal and State anti11 trust law preclude those industries from developing

12 and enforcing the guidelines described in subsection

13 (a).

Æ