Undeterred by a host of constitutional hurdles, two committees-worth of U.S. senators last week appeared determined to regulate TV shows, movies, videogames and practically every other kind of electronic entertainment containing violent images.
Even as key members warned that the bill was likely to be struck down in court, on Sept. 21, the Commerce Committee approved a measure that would give the FCC power to fine stations that air "excessively" violent programming during kids' prime viewing hours.
Just minutes later, several Judiciary Committee members across the street said federal regulators should prod the entertainment industry to restrict the marketing of violent media by establishing a voluntary code of conduct. It was clear from the comments of some on the panel, however, that honoring the code might not be really, well, voluntary.
The legal obstacles gave industry officials hope that both the plans might remain little more than an opportunity for public posturing, with no threat of actually passing. "I think their paths through the Senate and final passage are uncertain at best," said NBC lobbyist Robert Okun.
But at least in committee, the bill had no trouble collecting votes. By a 16-2 margin, the Senate Commerce Committee approved a measure that:
- Allows the FCC to restrict broadcasts of excessively violent programming if the agency determines that the V-chip channel-blocking system isn't effective in shielding the vast majority of children from violent TV programming. The FCC would be required to report on the V-chip's performance within a year of the bill's passage.
- Orders the commission to determine when children are likely to constitute a "substantial" portion of the audience.
- Exempts from penalty violent programming aired when children are a small part of the audience. Also exempt would be sports and news broadcasts and multichannel pay-per-view and premium programming.
Sen. Fritz Hollings (D-S.C.), sponsor of the bill, said the restrictions are needed because broadcasters are using too little discretion in choosing time slots for violent shows, even as few parents are relying on the once ballyhooed V-chip technology to block programs rated for adult audiences.
"The V-chip has not worked," he told his colleagues shortly before the ballot. "The industry out there on the West Coast treats it like a permission, rather than a restriction."
Hollings' bill was opposed by Sen. Sam Brownback (R-Kan.), even though he has complained loudly about media violence. "I don't think we can start down any road of us regulating content," he said. Also voting against the bill was Max Cleland (D-Ga.). Committee Chairman John McCain (R-Ariz.) voiced objections but voted "present" rather than against the bill.
McCain made his worries very clear, however. He complained that the bill would give the FCC too much discretion to hinder the viewing choices of adults, to determine what constitutes "excessively violent" and during which hours it may be shown.
"The notion of letting five unelected bureaucrats decide what can be broadcast and when it can be broadcast is objectionable to most free people," he said. McCain also predicted the bill would be struck down in court.
But Hollings countered that the FCC has similar restrictions in place for sexually graphic, indecent broadcasts, which are restricted to betweem 10 p.m. and 6 a.m.
Many of the bill's other supporters acknowledged its slim chances of passing judicial review and appeared satisfied simply by the chance to jawbone media companies into action and perhaps gain another chance for making hay on the issue if the bill comes to the Senate floor. "There are real concerns about having content-based regulations," said Sen. John Kerry (D-Mass.), who then voted for the bill anyway.
Brownback's alternative plan is to grant the entertainment industry, including television, movies and videogames, a narrow exemption from antitrust restrictions. That move would allow creation of a voluntary code of conduct modeled on the old National Association of Broadcasters code, which was dropped under pressure from the courts in 1982. The code would allow media trade groups to expel non-compliant members and even allow individual companies to stop doing business with retailers that violate the code.
Senate Judiciary Committee members discussing the idea at a hearing later, however, suggested that the FTC instead penalize violators for unfair and deceptive advertising practices. "The FTC's mandate to prevent deceptive trade practices in this manner would ensure that entertainment companies adhere to their promises and cease marketing violent and inappropriate material to children," wrote Sens. Mike DeWine (R-Ohio) and Herb Kohl (D-Wis.) in a letter to FTC Chairman Robert Pitofsky.
Pitofsky said he would investigate that option but would not predict whether such an approach would pass constitutional muster. "If we find we have the authority, then I don't have any reservation about enforcing the law."
Pitofsky warned, however, that any antitrust exemption should be tailored narrowly to prevent industry from gaining rights for anticompetitive collusion. "Generally, giving out antitrust exemptions is not a good idea."