FCC Commissioner Robert McDowell said this week he would approve the commission's upcoming TV violence report.
"I will be voting for it," he said at an April 4 press conference.
McDowell said the report makes policy recommendations, but also "raises more questions than it answers," in terms of defining violence, regulating it, and whether or not to include cable content. He said his focus was in determining a "legally sustainable" course of action. Unlike the 30-year-old legal record on broadcast indecency, there is no similar precedent for regulating violence.
"This is a new area for Congress," McDowell said.
The pending report is in response to several members of Congress, who asked the FCC three years ago to study TV violence and submit a report by Jan. 1, 2005. The commission subsequently launched a Notice of Inquiry, but missed its deadline. Now, under increasing pressure from Congress, the commissioners have been hammering out the report. McDowell said it "should" be out within two weeks.
Until he declared his support, McDowell's vote was considered a wild card. Chairman Kevin Martin and Commissioner Michael Copps have been vocal about regulating TV violence, which also falls under the bailiwick of children's issues championed by Commissioner Deborah Tate. Commissioner Jonathan Adelstein and McDowell have been more reserved.
Asked what he personally considered actionable violent content, McDowell said he did not know.
"These are uncharted Constitutional waters," he said.
Creating a legal definition for actionable violent content is at the heart of developing a regulation, McDowell acknowledged. The FCC's notice pondered the subjectivity of such a definition, as illustrated by the conclusions of a UCLA study:
"No matter how well the definitions were drawn, there would be those who felt that some aspect of violence should or should not have been included," it stated. "Almost everyone has his or her own definition of violence."
The NOI suggests the possibility of developing a "safe harbor" for violent content, similar to the one created for indecent content. Because the First Amendment does not allow indecent speech to be prohibited entirely, it is limited on broadcast TV to the safe harbor hours of 10 p.m. to 6 a.m., when children are less likely to be watching. However, even a safe harbor rule would require a specific definition of what type of violence is censurable.
In a comment filed on the Notice in 2004, the American Civil Liberties Union illustrates the potential quandary of defining violence.
"Assuming the FCC can provide an objective definition of 'violence,' it must then proceed to the task of defining what is and is not permissible. For example, 'The Magnificent Seven' is a movie about seven men who protect a village from violent marauders. Is their defense of the village 'good' violence (allowable)? Is the depicting of violence of the marauders therefore not allowed? If so, then how does one place the violence committed by 'The Magnificent Seven' in context?"
Other filings addressed questions about the behavioral impact of media violence by citing court cases involving video games. Courts in three states struck down laws to regulate video game content on First Amendment grounds.
"I don't think violence can be regulated," said Andrew J. Schwartzman, president and CEO of the Media Access Project in Washington, D.C. "I support much more stringent enforcement of the FCC's character policy and other rules so that people selected to be broadcasters are more likely to be responsive to their communities. That might produce more appropriate program judgments."
Whatever legal complications may arise, the call to quell TV violence continues. Bolstered by a study from the Parents Television Council last year that showed a marked increase in violence on television, Sen. Jay Rockefeller (D-W.V.), continues to push his bill to regulate it. Several individuals who filed comments on the FCC Notice stopped short of asking for legal relief, but expressed frustration about violent content.
Gillian Madigan of Des Moines, Iowa, wrote, "The problem I have is not with the program itself, but with the commercials... They are horrifying." Even worse, she said, are the promo bugs that appear on the bottom of the screen during a program. "If a program, e.g. 'CSI,' warns you that it contains images which are violent, offensive, or not suitable for certain audiences, then my family and I shouldn't have to be subjected to those very images while watching other family-appropriate programming."
Brenda Yenkole of Gardnerville, Nev. complained about violent movie trailers: "Last night... my husband and I with our three-year-old were making dinner and watching 'That '70s Show' and the movie preview for 'The Hills Have Eyes 2' came on and was very graphic. I would say that the preview was rated R itself. This is plain ridiculous to have on regular TV."
Others, like Gregory Church of Houston, urged the FCC to stay out of content regulation.
"The FCC has no place and should have no place in trying to determine how much or how little violence is safe during primetime," he wrote. "We do not need the government as a nanny. There are more than enough controls available if parents are concerned about this. Then there is also the issue of it costing us a fortune when it hits the courts and the controls found unconstitutional. Lastly the FCC should never, ever try to have anything to do with cable content. This is a service that is not on public airwaves and that people opt in for."
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