NEWS September 25, 1996 Commissioner Chong Calls for "First Amendment Friendly Framework" for Regulating Media Content In a luncheon speech to the Communications Forum of the Media Institute in Washington, D.C., FCC Commissioner Rachelle Chong contended that increased industry responsibility and parental involvement would allow less government regulation of media content. Musing on the issues of television violence, children's educational and informational programming, and the regulation of Internet content, Commissioner Chong said "the role of government in content regulation on any medium can and should be minimal" due to important First Amendment considerations central to a democratic society. The proper role of government, she said, should be as a "facilitator" or "monitor" -- taking action to set up a framework within which the industry is encouraged to self regulate and in which parents have tools that enable them to make choices for their children. Recognizing the important interest in protecting children from inappropriate adult material, Chong urged a partnership of responsibility between government, industry and parents. She noted that all three have "a proactive role to play." To minimize any need for intrusive government regulation in the area of content, she encouraged the television, cable and Internet industries to be "responsible and responsive" to the concerns of parents. She asked parents to actively monitor what their children watch on television or access on the Internet. "[Parents] must not expect government to be a national nanny," she said. If content providers, parents and government work together, Chong said that she believed government regulation can be minimized. "In such an environment, we can all reap the benefits of our current and new medias of tomorrow," she concluded. ## Remarks of Commissioner Rachelle B. Chong at the Communications Forum of the Media Institute Washington, D.C. September 25, 1996 "A First Amendment Friendly Framework for Regulating Media Content" Today, I am going to take a break from all my speeches about implementating the new Telecom Act to focus not on the builders of the wired and wireless pipelines, but on what will flow within those pipelines -- the media content. The issue I will take on is the proper role of government in regulating media content. Of course, this topic is dear to the hearts of the dreammakers, the story spinners, and the information icons of the Information Age. Content regulation is a subject that always sparks heated and emotional debate. The reason is simple. Content regulation touches on a principle at the very core of our system of government -- our right to freedom of speech. Now, I make no claim to being a First Amendment scholar. But I am, for better or worse, a regulator who must on occasion make decisions regarding media content. This is a task that I take seriously for a couple of reasons. One reason is my background. I majored in both journalism and political science at UC Berkeley. I studied and understand the concept of freedom of the press and the central role it plays in our democratic society. Another reason I care is that I am a lawyer by training, and I have not yet been able to overcome it! As a result of my legal studies, I appreciate the impact of the FCC s decisions on the law. Because of my background, I have a deep and abiding respect for the First Amendment and for what it stands for in our great nation. As Senator Inouye of Hawaii rightly said at my Senate confirmation hearing, it is the guarantee of free speech that sets this country apart from the rest of the world. I approach any government regulation of media content with a measure of skepticism. In analyzing content regulation issues that come before me, I first look to see if there is a compelling objective. And second, I look to see if the proposed FCC action is narrowly- tailored to achieve this objective. If less intrusive alternative means exist, I have argued vigorously for their adoption. With this in mind, let me turn to some of the specific content regulation issues I see before me. You can breathe easy; I've decided not to take a go at broadcast indecency and obscenity, and I promise not to tell any of Commissioner Quello's jokes on this subject! Moreover, broadcast indecency law is fairly well developed. There are plenty of guideposts on what courts find acceptable in the neverending quest to protect children. Instead, I intend to tackle the timely topics of television violence, children's television, and Internet regulation. Television Violence Let's start with television violence. Here, like obscenity and indecency regulation, the objective of any regulatory effort is the protection of children. The topic of TV violence gets lots of attention. Our Presidential candidates, for example, have had a few things to say about TV violence. Ordinary Americans care too. Wherever I go, I get an earful -- especially from parents -- who are deeply troubled by the level and amount of violence on television. They beg me to do something about it, and express a sense of helplessness about getting something done about the problem. Some clamor for bans on violent content entirely. Others ask for parental empowerment tools to help them take control of their TV set. Still others would have me counterbalance the harmful effects of violent shows by mandating hours of pro-social shows, such as children's educational and informational programming. I get an earful from the industry too. Broadcasters and cable operators typically invoke the First Amendment and then tell the government to stay out of their programming decisions. And the creative community in Hollywood doesn't mince any words either. TV writer and producer Steven Bochco once referred to the FCC Commissioners as "six dopes in suits" who have no business interfering with his creative efforts. Let me first say that I don't agree with those who say that government ought to be totally "hands off" in this area. Government can and should play a helpful role as a facilitator within the bounds of the First Amendment. Let me elaborate. I believe that all the key players ought to form a partnership. Each has a proactive role to play if we are to minimize government involvement: First, government has a responsibility to create a framework within which the industry is encouraged self regulate, and in which parents have tools that enable them to make viewing choices for their children. Second, industry must be responsible and responsive to the concerns about TV violence. And finally, parents must take an active role in monitoring what their children watch on television. They must not expect government to be a national nanny. If all the players tackle this problem together, I believe we can keep government out of sensitive programming decisions. Let's start with government. What should government's role be? Right off the bat, I want to make clear that I do not believe government's role should be that of a censor. In a society where free speech is paramount, no one wants to have a bunch of Washington regulators deciding what you can and can't see on TV. My own husband doesn't always agree with me on what's worth watching -- why should the rest of the country?! Nor do I agree with those who insist that government's role is to ban all violent programming to make sure television is "safe" for kids so they won't "turn out to be axe murderers." Now, this kind of approach is just not sensible. Two-thirds of television households do not contain kids. To protect the little tykes, should we tell all the adults in America that they can only watch programming that is suitable for five-year-olds?! I don't think so! Clearly, we need a solution that fits the viewing needs of all Americans. I think the better solution is to have a responsible industry and an informed public with tools to make their own decisions and shield the children that need protecting. In this scenario, government has the role of a facilitator, a monitor, and only if necessary, an enforcer. By this, I mean that government can and should ask the industry to supply information in advance to the public about program content. Government can ensure that parents have tools like V-chips or parental advisories to help them control what their kids see on the TV set. Government can enforce laws that mandate that all TV sets contain a V-chip after a certain date. In such a scenario, programming decisions can be safely left to the industry. The good news is that tools like the V-chip are coming closer to reality. The 1996 Telecommunications Act directs the FCC to require TV manufacturers to put a V-chip device in TVs by no earlier than February 1998. But the V-chip scheme will not work unless there is a rating system put into place for television programs -- both on broadcast and cable TV. The broadcast, cable and programming industries have agreed to voluntarily develop a rating system by early next year. I applaud them for this action, and wish them well in this challenging task. My latest reports from those working on the project indicate that the group is still trying to resolve some very thorny issues. Last week s press reports indicated that they may have a proposal by the year s end. I strongly urge them to reach an industry consensus. The alternative is not pretty. If a voluntary rating system is not developed, the 1996 Act requires the FCC to develop a TV rating system. Should the FCC be forced to take up this task, the government's role will be much more intrusive. And I personally have some doubts about whether any government rating system will pass constitutional muster. For one thing, the FCC would have to craft a definition of what constitutes "violence" on shows. Needless to say, just like our valiant efforts trying to define what is "indecent," this is a thankless task that will be extremely difficult. I wonder how the FCC can parse out harmless violent speech from harmful violent speech? While the movie "Die Hard" or "Pulp Fiction" may earn a violent rating, so might "West Side Story." We don't have to go that far, if industry also does its part. Calls for government to step in would certainly be reduced if industry is both responsible and responsive. By responsible, I mean that broadcasters and other programmers should consider the impact of their programming choices -- and that includes news, movies and advertising -- on all their viewers, including children. For example, if a show includes violent material, the violence should be necessary to the plot and not gratuitous. The perpetrator should be shown being punished for his or her bad acts, and the consequences of the violence -- pain, grief, death, and property loss -- should be depicted. I also believe the industry should be responsive to its community's concerns and complaints about violence. They should listen and act. They could, for example, air shows with mature or violent themes in later evening hours when children are less likely to be in the audience, and continue to air voluntary advisories before such shows. They can also prominently advertise their children's educational and informational programming so that parents can find it and encourage their children to watch. Should the industry fulfill their important role, parents will have more tools and options, and thus, will feel more in control of their child's television experience. I want to emphasize that parents have a critical role too. Some parents use television as a babysitter and expect government to be a substitute parent. While I think it is government's job is to see that information and empowerment tools are available, ultimately, parents must parent. In sum, I believe that government, the industry and parents all have key roles to play in this issue of TV violence. If each does its part, we can avoid overintrusive government rules and strike an appropriate balance between protecting children and the right to free speech. Children's Educational and Informational Television This leads me into the topic of children's TV which mercifully reached a conclusion in August. There were times when I thought the Commission would never issue new rules for children's educational and informational television -- that I was living through my own twisted version of "Groundhog Day" where I was doomed to spend every Friday responding to the same press questions from the same trade reporters about where we were, or weren't, as the case may be. Thankfully, we finally reached a compromise we all could live with. The process was a lot like making sausage though. It was neither pleasant nor pretty, but the end result is palatable. As I see it, our children's TV decision to some degree sets up just the kind of framework that I was just talking about. We called for broadcasters to be responsible and responsive to their communities by airing children's educational and informational programming that serves the needs of their child audience. We told them to air these shows during hours when kids are likely to be awake, and to give program guides a listing of their children's programming. These new rules clearly empowered parents. Now, parents have the information in hand to encourage their children to watch educational shows. Our rules also made it easier for anyone who is interested to find out what shows the broadcasters intend to claim as educational, and to monitor their local broadcasters' efforts. In sum, these rules promoted a dialogue between a community and its local broadcaster about children's TV. This is why I supported this portion of the decision. I thought that the FCC went a little too far in some portions of the decision, however, which is why I concurred in part. While I supported an improved definition of "core" educational and informational programming to make it clearer and easier to administer, I believe that some aspects of the definition are too narrow. I would have preferred a more expansive definition -- one more faithful to the spirit of the Children's Television Act of 1990 (CTA) that would reasonably credit more varieties and lengths of programming under our three hour processing guideline. I worry that with all good intentions, given the narrowness of our definition, we may impose a sameness on the children s programming marketplace that could defeat the purpose of the Act. I want to be clear that I believe the goal of the CTA is an important one that government may properly seek to promote. Thus, I believe it is appropriate for the FCC to create a framework of compliance that will ensure that broadcasters do serve the educational and informational needs of children. What I think is not appropriate, is for the government to limit the creativity of broadcasters by an overly narrow definition, or preconceived notions that shows of certain lengths are better than others. I also believe the Commission may have crossed the line into overly intrusive regulation when we adopted a quantitative processing guideline. I was able to reluctantly concur in this decision however, because it is a guideline -- not an arbitrary standard. Contrary to the press spin about this decision, the Commission did not mandate that broadcasters to air three hours of children's educational programming per week. Meeting the three hour processing guideline may be the one way to meet the CTA, but our decision makes it clear that it's not the only way to comply. By retaining a measure of flexibility to comply in other ways, albeit through full Commission review, we did allow a measure of creativity that eased my main concern about arbitrary standards. Broadcasters should feel free to air creative and innovative children's educational programming that may not fit directly within our definition of "core" programming, but nonetheless in their good faith judgment serve the educational and informational needs of children. And the Commission ought not make value judgments that replace the good faith judgment of the broadcaster about what kids educational programming is good or bad. It is important to remember too that, at the Commission level, we will be able to recognize other non-programming efforts as well. I can envision a case where a broadcaster decides that the educational and informational needs of children in its audience would be better served if it funded an anti-drug campaign in the schools in conjunction with a series of quarterly one hour anti drug specials, as opposed to just airing a weekly kids science show. I would "count" such a program for CTA credit in a heartbeat. After all, the Children's TV Act and its legislative history made it very clear that broadcasters retain discretion to make these sensitive and constitutionally protected programming judgments. I note that I concurred in the quantitative approach because a specific statute charges the Commission with considering CTA efforts in processing renewal applications. Yesterday, the Chairman of the FCC said that he believes it is "necessary to quantify public interest obligations" of broadcasters. I disagree with him. Serving the public interest is not a measurable thing like widgets. The public interest is a flexible concept that allows itself to be adapted as needed. And I believe this flexibility is very important. Without it, we may intrude unduly on the free speech rights of our regulatees, whose purpose, after all, is communicating words and ideas. Indeed, I have some fears that with our quantification of the processing guideline for children's television, we already may have gone too far. With the best of intentions, we may have started down a slippery slope of undue government intrusion in a broadcaster's programming discretion. Where will this stop? Should the Commission be deciding that certain information -- say, election or health information -- is just as important as children's educational television, and that therefore broadcasters should be ordered to air 3 hours per week of this program content. To my mind, quantifying all kinds of public interest obligations for all content providers would be overly intrusive government regulation that crosses the line, especially when less intrusive alternatives exist. If such a proposal is considered, I will oppose it. Regulation of the Internet As my final topic, I wanted to turn to content regulation on another medium, the medium of the Nineties if you will -- the Internet. Before I start, let me note thankfully that the FCC does not have a role in regulating Internet content. So, none of the remarks I am about to give have any "official" status. I'm just an innocent bystander -- with lots of opinions. And, while I have a captive audience, I thought I would inflict them on you. Like many Americans, I surf the Internet and get a real kick out of it. It's been fascinating to watch the Net's explosive growth, and it's evolution into a powerful information tool. I think a lot of the reason why the Internet has flourished is that government has kept its mitts off it. For the Internet to continue to thrive, it is my view that government ought to avoid content regulation. Having said that, I am aware of the concerns that many have about minors accessing inappropriate adult material on the Internet. I have heard calls to ban such material entirely. Applying the same principles that I have put forth earlier, however, I do not believe we should heed such calls. Government censorship is not the right path to take. There are many people who disagree with me. A provision of the new Telecom Act, for example, imposed criminal penalties for anyone who knowingly makes indecent or patently offensive material available to children over computer networks. The penalties under this "Communications Decency Act," or CDA, could have been as severe as two years in prison and stiff fines. A lawsuit challenging the CDA was filed one hour after President Clinton signed the Telecom Act into law. In June, a three judge panel in Philadelphia barred enforcement of these provisions. A month later, another three judge panel in the Southern District of New York similarly concluded that the CDA was unconstitutional. In the Philadelphia case, all three judges agreed that the CDA is substantially overbroad, in that it effectively forces many Internet users to forgo constitutionally protected speech or risk criminal prosecution. In addition, two of the judges concluded that the CDA definition of indecent speech is unconstitionally vague. The judges in New York found the CDA unconstitutionally overbroad, but not void for vagueness. Significantly, both courts included detailed fact finding sections that may well shape the nature of the case when it reaches the Supreme Court. For example, the courts concluded that there was no feasible technology that would permit content providers to restrict all indecent material to adults. I believe this finding will be important to the Supreme Court's final resolution of this case. It tends to support the notion that the statute is unconstitutionally overbroad. The Supreme Court will probably take this case up in the next term. In the meantime, the same framework that I have outlined above might be a way that government could take a less intrusive approach. Government could reasonably take on the role of a facilitator seeking to create a framework in which children could be protected without censorship of the content. For example, government could encourage content providers to be responsible and responsive to the concerns of parents. Improved technological means may give content providers a way to ensure that no minors receive adult material on the Internet. Moreover, parents must be responsible too. They can sign up only for on line services that monitor Internet content for appropriateness and have parental controls that can be turned on. Parents may also purchase screening software that help block access to all Internet sites except for those that parents choose to make available to their children. Again, parents need to be proactive in monitoring their child's use of the Internet. If content providers and parents are encouraged in this way, I believe that government action could be minimized. Conclusion In closing, I want to be clear about the message that I tried to convey to you today. I believe that the role of government in content regulation on any medium can and should be minimal. To make this work, content providers must be responsible about what they present and responsive to the needs of their audience. In addition, parents and others responsible for protecting our children must actively supervise their children. As I see it, the best role for government is to be a facilitator and a monitor. Government can take action to see that adequate information and tools for controlling access to media content are available to those who need them. Creativity of content providers ought not be hindered by the heavy hand of government regulation. In such an environment, we can all reap the benefits of our current and new medias of tomorrow. Thank you for your kind attention.