On April 25, the FCC released a landmark report—“Violent Programming and Its Impact on Children”—that recommends that Congress use indecency regulation as a basis to enact first-ever limits on TV violence and authorize the FCC to enforce them.  

But last Monday’s court ruling in Fox v. FCC added to significant concerns about indecency regulation as a model for new violence rules. 

Striking down parts of the FCC’s recent toughening of it indecency policy, the Second Circuit Court of Appeals found that fines against “fleeting and isolated” indecent words in live programming, and a new FCC definition of profanity, were adopted in violation of the Administrative Procedure Act.

The APA requires, among other things, that the FCC articulate a rational basis for changing agency precedent, and consistent enforcement that gives adequate notice to potential violators of what is prohibited.

The court also noted strong concerns about the constitutionality of the FCC changes, although they were not the basis of the ruling.

This column provides a guide to the FCC violence report in light of the indecency ruling. 

How did we get to this point? Congress has empowered the FCC to fine stations for violating the federal law (18 U.S.C. Sect. 1464) against “obscene, indecent and profane” broadcast language. 

The history of that enforcement is an attempt to delicately balance the competing interests of protecting the public and children, freedom of speech under the First Amendment (which protects indecent and violent content) and Section 326 of the Communications Act, which prohibits FCC censorship. 

In the past, the FCC fined stations rarely and limited enforcement to egregious cases in deference to the competing considerations as interpreted by the courts.

Since 2000, the FCC has stepped up indecency enforcement and changed longstanding policies. For example, “fleeting and isolated” use of certain words became the basis of major fines for the first time.

Fine amounts have also increased. Last Friday, the FCC amended its rules to reflect Congress’ earlier tenfold increase in maximum indecency penalties from $32,500 to $325,000 per violation. 

Why the violence report?  In March 2004, the House Subcommittee on Telecommunications and the Internet, which oversees the FCC, asked the agency to collect public comment about “the issue of excessively violent broadcast television programming and its impact upon children.”

The subcommittee framed questions for an FCC Notice of Inquiry, and asked the FCC to report—by Jan. 1, 2005—on whether the it could define and regulate “excessively violent programming harmful to children” consistent with the Constitution and court review.

The result was the report of April 25, 2007. 

What does the report conclude?  In the report, the FCC:

Agrees with the 2001 Surgeon General’s view that, “on balance,” research shows that exposure to media violence can increase aggressiveness in children, especially in the short term.

Finds that the V-chip and other viewer tools to block industry-rated programs are free of the legal problems of FCC content regulation, but have not protected children from excessively violent programs because viewers don’t know they have the technology or how to use it.

Recommends required time channeling of TV violence (such as the indecency “safe harbor” of 10 p.m. to 6 a.m.), “a la carte” offering of unbundled channels by cable and satellite operators and, perhaps, other governmental steps and voluntary actions such as a family viewing hour by broadcasters or a la carte offerings by cable and satellite.

Does not define “excessively violent programming harmful to children,” but concludes that Congress could “craft a sustainable definition” despite “legal, evidentiary, analytical and social science obstacles…” 

What’s happening now? Legislation was introduced in 2005 and is in development again with bipartisan sponsors, particularly in the U.S. Senate, where hearings may occur soon. There has been less interest in the House.

Criticism of the report has come from various points on the political spectrum. The socially conservative Rep. Mary Bono, for instance, wrote all House members to criticize the a la carte mandate for cable. As a parent, she said, it is her “responsibility to evaluate technologies available that allow me to determine what is seen in my home—not the government’s.”

It may not be a coincidence that the subcommittee requested the report in 2004, a presidential election year, and that it was released as the 2008 presidential campaigning gets underway.

No politician wants to appear to be pro-violence or anti-child. Before Fox, legislation might have grown “legs.” That may be less likely now.

What are the alternatives that could avoid content regulation and its accompanying legal quagmire while addressing TV violence concerns?

Renew efforts to educate consumers about program-blocking technology. The report identifies the need for greater consumer awareness and familiarity with blocking technology they already have, but largely ignores how to fix that other than by content regulation. Since 2000 federal law already requires V-chips to be built into new TV sets, and 119 million such sets are in use now. Congress could allot funds to consumer education. Broadcast, cable, set makers and other industries could partner with government in that effort, as in the NTIA digital coupon converter box program. The FCC has a fledgling section of its Web site on this, but could do much more. It beats regulation, and the technology is there.

Improve the program ratings system if it’s wanting as the FCC report claims. Industry could work on this anew.

Update the record in a new proceeding directed not primarily to new content regulation, but to a full menu of potential solutions. The FCC report relies on a 2001 Surgeon General report, and comments in a 2004 Notice of Inquiry.

Enact legislation granting antitrust immunity to broadcasters, cable and satellite operators, program producers and others so they could focus on voluntary efforts to address public concerns about TV violence.

Particularly in light of the June 4 court indecency ruling, any new governmental steps to address TV violence must not do violence to other applicable law.

Though a landmark, the ruling is narrow and does not, as some rhetoric has claimed, open the floodgates to sex and violence while children are in the audience.

In the meantime, broadcasters should focus on the timing of programs containing violence as part of their overall obligation to operate in the public interest.

This column on TV law and regulation by Michael D. Berg, a veteran Washington, D.C. communications lawyer and the principal in the Law Office of Michael D. Berg, appears monthly. He is also the co-author of FCC Lobbying: A Handbook of Insider Tips and Practical Advice. He can be reached at mberg@michaelberglaw.com or 202-298-2539.

Note: This article provides general guidance only and is not a substitute for individualized legal advice for particular situations.