unintended effects of this potent combination of bureaucracy and technology on the health
of our democracy and the evolution of our culture.
Pub. L. No. 104-104, 110 Stat. 56 ( 1996) (to be codified in scattered sections of 47 U.S.C.).
section 551, 110 Stat. at 139-42. As its name implies, the V-chip technology has been touted primarily
as a means of controlling television violence. But its uses are not limited to that category. The
Telecommunications Act of 1996 specifically lists its concerns as "sexual, violent, or other indecent
material." section 551(b)(1), 110 Stat. at 140.
Joseph A. Kirby, Device Would Let Parents Program TV for Children, Times-Picyune ( New Orleans), Jan. 7, 1996, at A26.
See TV Parental Guidelines, hup://www.tvguidelines.org/#Children.
See Canadians Propose 7-Point TV Ratings System, Communications Daily, May 6,1997; Etan Vlessing, Canada Aims at TV Violence: Nation will go light on language, sex in its ratings system, The Hollywood
Reporter, May 6, 1997.
Paige Albiniak, Ratings get revamped: networks, except for NBC, agree to add content labels; includes
related articles on the rating system and the V-chip, Broadcasting and Cable Vol. 127 ( July 14, 1997),
438 U.S. 726 ( 1978), reh'g denied, 439 U.S. 883 ( 1978).
Action for Children's Television v. FCC (ACT III), 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied,
116 S. Ct. 701 ( 1996). The relevant law actually permitted stations to broadcast indecent programming
from midnight to 6:00 A.M., but it also permitted public television stations that go off the air before
midnight to broadcast the same programming starting at 10:00 P.M. Public Telecommunications Act of 1992, Pub. L. No. 102-356, section 16(a), 106 Stat. 949, 954 (codified at 47 U.S.C. section 303 note
(Supp. V 1993) (Broadcasting of Indecent Programming; FCC Regulations). Because the court found the
exception for public broadcasting to undermine the purposes of the legislation, it remanded the case to
the FCC with instructions to limit the ban on indecent programming to the period from 6:00 A.M. to 10:00
P.M. ACT III, 58 F.3d at 669-670.
For an accessible (and skeptical) view, see
Thomas G. Krattenmaker &
Lucas A. Powe-, Jr., Regulating
Broadcast Programming120-34 ( 1994).
See Turner Broadcasting Sys. v. FCC, 114 S. Ct. 2445, 2456 ( 1994) (citing National Broadcasting Co. v.
United States, 319 U.S. 190, 212 ( 1943)), reh'g denied, 115 S. Ct. 30 ( 1994).
Critiques of the scarcity rationale are by now legion. For a sampling, see
Lucas A. Powe, Jr., American
Broadcasting and the First Amendment 197-209 ( 1987);
Matthew L. Spitzer, Seven Dirty Words and Six
Other Stories 1013-20 ( 1986);
Ronald H. Coase, The Federal Communications Commission,
J. L. & Econ.
, Oct. 1959, at 1, 12-27.
Powe, supra note 7, at 87-88,217-18 (discussing the FCC's restrictive channel
H. R. Conf. Rep. No. 862, 102d Cong., 2d Sess. 56 ( 1992) (stating that nearly fifty-six million
households and more than 60% of all households with televisions are cable subscribers);
Robert S. Tanner
, Note, The Data Transfer Industry: Communications Regulation for the Next Century, 17
Hastings Comm. & Ent. L.J. 917, 922-23 ( 1995) ( citing Chesapeake & Potomac Tel. Co. v.United
States, 830 F. Supp. 909, 915 (E.D. Va. 1993)).
Leland L. Johnson, Toward Competition in Cable Television 179 ( 1992) ("Cable systems have become
accessible to more than 95 percent of the nation's homes."); see also US West, Inc. v. United States, 855 F.
Supp. 1184, 1192 (W.D. Wash. 1994) ("Cable service is now available . . . at 96% of all U.S. homes. . . ."),
aff'd, 48 F.3d 1092 (9th Cir. 1994), cert. granted and judgment vacated, 116 S. Ct. 1037 ( 1996).
Many other justifications for regulation of violence or indecency often tend to be parasitic on the scarcity
rationale. For example, in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 ( 1969), the Supreme Court
suggested that content-based regulation was permissible because broadcasters do not own the airwaves
outright. Id. at 394. They hold licenses from the government, and therefore the government can impose
conditions on that license. By itself, this argument tends to prove too much. The government's conditions
may be unconstitutional conditions. The government does not license the airwaves as an act of governmental largesse -- the usual means of justifying conditions on licenses. See, e.g.,
Rust v. Sullivan, 500
U.S. 173, 199 n.5 ( 1991) (stating that restrictions on abortion counseling by recipients of Title X subsi-