The V-Chip Debate: Content Filtering from Television to the Internet

By Monroe E. Price | Go to book overview

unintended effects of this potent combination of bureaucracy and technology on the health of our democracy and the evolution of our culture.


Notes
1
Pub. L. No. 104-104, 110 Stat. 56 ( 1996) (to be codified in scattered sections of 47 U.S.C.).
2
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.
3
Joseph A. Kirby, Device Would Let Parents Program TV for Children, Times-Picyune ( New Orleans), Jan. 7, 1996, at A26.
4
See TV Parental Guidelines, hup://www.tvguidelines.org/#Children.
5
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.
6
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), at 4.
7
438 U.S. 726 ( 1978), reh'g denied, 439 U.S. 883 ( 1978).
8
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.
9
For an accessible (and skeptical) view, see Thomas G. Krattenmaker & Lucas A. Powe-, Jr., Regulating Broadcast Programming120-34 ( 1994).
10
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).
11
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.
12
See Krattenmaker & Powe, supra note 7, at 87-88,217-18 (discussing the FCC's restrictive channel allocation policies).
13
See 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)).
14
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).
15
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-

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