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Progress on Point
Release 14.20 October 2007 Periodic Commentaries on the Policy Debate
Parental Control Perfection?The Impact of the DVR and VOD Boom on the Debate over TVContent Regulation
by Adam Thierer
Debates over what constitutes acceptable television programming are as old asthe medium itself. Critics abound, and regulation has frequently been suggested as asolution to whatever it is those critics identify as “the problem.”On one hand, some critics believe regulation can help improve the overall qualityof television. For example, many critics and policymakers have advocated rules, suchas the Children’s Television Act of 1990, that force television broadcasters to air acertain amount of “educational” programming.
Another example is found in ongoingefforts to encourage or require television networksto establish a formal “family hour” of
programming during the early hours of primetime,
or a television “code of conduct.”
On the other hand, many other critics or policymakers want to use regulation tocurb what they regard as the medium’s worst tendencies. For example, a heated debatecontinues about whether federal regulators should be given expanded authority topolice “indecent” or “excessively violent” programming on broadcast, cable, and satellite
*
Adam Thierer (athierer@pff.org) is a senior fellow with The Progress & Freedom Foundation and thedirector of its Center for Digital Media Freedom. He is the author of Parental Controls and Online ChildProtection: A Survey of Tools and Methods (Washington, DC: The Progress & Freedom Foundation),2007. The views expressed in this report are his own.
1
2
In September 2007, for example, the Parents Television Council (PTC) released a report lamenting thesupposed death of broadcast television’s “family hour.”
The Alarming Family Hour
, (Washington, DC:The Parents Television Council, 2007),www.parentstv.org/PTC/publications/reports/familyhour/exsummary.asp. For a critique of that report,see: Adam Thierer, “Who Killed TV’s ‘Family Hour’?”
City Journal
3
During the 109th session of Congress, Senators Jay Rockefeller (D-WV) and Kay Bailey Hutchison (R-TX) introduced S. 616, the “Indecent and Gratuitous and Excessively Violent Programming Control Actof 2005,” which proposed “that each broadcast license, multichannel video programming distributor, orother programming service should reinstitute or adopt, as the case may be, and faithfully comply with,the provisions set forth in the ‘Television Code of the National Association of Broadcasters’ as adoptedon December 6, 1951.” This was a voluntary code that the broadcast industry established almost sixdecades ago to self-censor programming and avoid more government regulation. For a critique of thisproposal, see: Adam Thierer, “Thinking Seriously about Cable and Satellite Censorship: An InformalAnalysis of S. 616, The Rockefeller-Hutchison Bill,” Progress & Freedom Foundation
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Page 2 Progress on Point 14.20
television. In April, the Federal Communications Commission (FCC) issued a reportrecommending that “action should be taken to address violent programming” on bothbroadcast, over-the-air television as well as subscription-based cable and satellitesystems.
In that report, the FCC suggested Congress could apply traditional indecencyrestrictions to violent programming on broadcast TV, and that cable and satelliteoperators should be forced to sell their programming on an “a la carte” (channel-by-channel) basis in an attempt to eradicate violent programming from pay TV.
Somelawmakers have expressed interest in taking the FCC up on this offer and legislation isexpected to be introduced soon that would mandate one of those approaches.
The common premise behind these efforts is that regulation is needed to protectchildren or assist parents in some fashion. But, as was illustrated in the recent Progress& Freedom Foundation book,
Parental Controls and Online Child Protection: A Survey of Tools and Methods
, there are better ways to find quality media content, or deal withobjectionable media content, than through government mandates.
Public officialsshould not act
in loco parentis
when parents have the power to make media decisionson their own. And the good news is that new technologies continue to develop that helpparents make those decisions more easily and effectively.This paper will focus on the extent to which new video technologies, such asdigital video recorders (DVRs) and video on demand (VOD) services, are changing theway households consume media and are helping parents better tailor viewingexperiences to their tastes and values. These developments have profound implicationsfor debates over the regulation of television programming. As parents are given theability to more effectively manage their family’s viewing habits and experiences, it willlessen—if not completely undercut—the need for government intervention on theirbehalf.
4
“In the Matter of Violent Programming and Its Impact on Children,” Federal CommunicationsCommission
Report
,MB Docket No. 04-261, April 25, 2007,http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-50A1.pdf
5
To understand why it is highly unlikely that a la carte mandates would do much to eliminate violent farefrom cable or satellite television, see Adam Thierer, “Moral and Philosophical Aspects of the Debateover A La Carte Regulation,” Progress & Freedom Foundation
Progress Snapshot
1.23, December2005,www.pff.org/issues-pubs/ps/ps1.23alacarte.pdf; Adam Thierer, “Kid-Friendly” Tiering Mandates:More Government Nannyism for Cable TV,” Progress & Freedom Foundation
Progress Snapshot
1.2,May 2005,www.pff.org/issues-pubs/ps/ps1.2familyfriendlytiering.pdf; Adam Thierer, “A ‘Voluntary’Charade: The ‘Family-Friendly Tier’ Case Study,” Progress & Freedom Foundation
Blog
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For a response to the FCC report and related congressional proposals to expand regulation in thisfashion, see Laurence H. Tribe “Freedom of Speech and Press in the 21st Century: New TechnologyMeets Old Constitutionalism,” Progress & Freedom Foundation
Progress on Point
14.19, September2007,http://www.pff.org/issues-pubs/pops/pop14.19tribetranscript.pdf; Adam Thierer, “The Right Wayto Regulate Violent TV,” Progress & Freedom Foundation
Progress on Point
14.10,
7
Adam Thierer,
Parental Controls and Online Child Protection: A Survey of Tools and Methods
, Progress& Freedom Foundation
Special Report
Progress on Point 14.20 Page 3
The Ideal State of Affairs
It’s worth stepping back and asking: What constitutes the ideal state of affairswhen it comes to the regulation of media content? Some policymakers and media criticsmight argue there are certain types of video programming that should
never
bedisseminated publicly or allowed to enter the home. But such critics are on the losingside of history and societal change. Most Americans today do not call for outrightcensorship of media content—even extremely violent or sexually explicit content.Rather, most people (parents, in particular) just want to make sure minors do not haveaccess to that content. Several court decisions over the past few decades have guidedthis shift from outright censorship toward more targeted, narrowly-tailored childprotection efforts. The debate today is usually about how far the government can go toshield children from objectionable content without completely restricting the ability ofadults to consume that same content.But even in when a more targeted approach is taken, there are difficult questionsabout where to draw lines so as not to offend the First Amendment. After all, someregulatory efforts aimed at protecting children from objectionable material can alsoaffect adults attempting to access that same material. For example, “safe harbor” or“time channeling” mandates that force a television network to only air certain types ofprograms after 10:00 at night to shield children from those programs have theunfortunate side effect of forcing adults to wait till that hour to view programs they mayprefer viewing earlier. Moreover, safe harbor mandates and the threat of other types ofregulation encourage programmers to change the nature of many shows to make themmore appropriate for children when those shows were really only intended for adults.Consequently, the danger of much “child protection” regulation is that it ends up treatingall of us like children and not appreciating our different household values andpreferences. That’s especially problematic considering that, according to the U.S.Census Bureau, almost 68 percent of American homes do not have any children under18 years of age in residence.
For these reasons, we should seek to empower parents—not regulators—tomake media consumption decisions. Stated differently,
the ideal state of affairs would be a nation of fully empowered parents who have the ability to perfectly tailor their family’s viewing habits to their specific values and preferences
. That would include theability to not only block objectionable materials, but also to more easily find content theyfeel is appropriate for their families.
8
U.S. Census Bureau,
2007 Statistical Abstract of the United States
, Table No. 57, p. 52, available atwww.census.gov/prod/2006pubs/07statab/pop.pdf
9
Polls reveal that many parents already feel that they have a great deal of control over media in thehome. A June 2007 Kaiser Family Foundation poll revealed that: 65 percent of parents say theyclosely monitor their children’s media use; 73 percent of parents say they know a lot about what theirkids are doing online; 87 percent check their children’s instant messaging “buddy lists;” 82 percentreview their children’s social networking sites; and, 76 percent look to see what websites their childrenhave visited. Victoria Rideout,
Parents, Children & Media
, Kaiser Family Foundation Survey, June2007,http://www.kff.org/entmedia/entmedia061907pkg.cfm. Similarly, a poll conducted by the groupTV Watch in June 2007 found that 73 percent of parents monitor what their children watch, including
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