THE FCC'S PUBLIC POLICY ON TELEVISION VIOLENCE:
An Example of the FCC's "Raised Eyebrow" Approach
TO REGULATION
by
Arati R. Korwar
Doctoral Student, School of Journalism and Mass Communication
University of North Carolina at Chapel Hill
22 Lanark Road
Chapel Hill, NC 27514
phone: (919) 932-1178
FAX: (919) 962-0620
e-mail address: [log in to unmask]
Submitted to the Law Division,
Association for Education in Journalism and Mass Communication
Convention,
Washington, D.C., August 9-12, 1995.
ABSTRACT
The FCC's Public Policy on Television Violence:
An Example of the FCC's "Raised Eyebrow" Approach To Regulation
by
Arati R. Korwar, Doctoral Student, University of North Carolina at
Chapel Hill
This analysis of FCC cases, congressional testimony and commissioners'
speeches on the issue of television violence over a period of nearly
20
years revealed that the FCC repeatedly has declined (1) to create
new
rules to regulate television violence; (2) to issue cease and desist
orders, revoke licenses, deny licenses or license renewals under the
public interest standard D even though the FCC has said its authority
to
regulate broadcasting in the public interest might be broad enough
to
encompass regulation of violence; and (3) to restrict violence under
the
ban on obscenity, indecency and profanity. Instead, the FCC has
exercised a puposive policy of urging broadcasters, parents and
citizens' groups to take action on the issue of television violence.
The FCC's Public Policy on TV Violence -
The FCC'S Public Policy on Television Violence:
An Example of the FCC's "Raised Eyebrow" Approach to Regulation
Between 1988 and 1994, the Federal Communications Commission fined 11
radio and television stations $1,340,500 for allegedly indecent
broadcasts and ordered at least four other broadcasters to respond to
complaints about indecency.[1] During that same period of time, the
FCC
took no action against broadcasters for violent programming and did
not
even testify before congressional committees investigating the
issue.
In the debate over television violence, the FCC certainly should be
a
key participant[2] because it is the regulatory body charged with
overseeing broadcasting under the Federal Communications Act of 1934.[3]
Although both indecent content and violent programming have raised
concerns about their impact on children and their general offensiveness
to some adults, the FCC's role in addressing violent material has
been
unlike its high-profile role in indecency regulation.
In 1974, both houses of Congress directed the FCC to report the
"specific positive action taken and planned by the Commission to protect
children from excessive programming of violence and obscenity."[4]
This
congressional directive followed on the heels of the 1972 Report to
the
Surgeon General on television violence[5] and a report at
congressional
hearings in 1974 of studies on the effects of television violence on
children funded by the Department of Health, Education and Welfare.[6]
The
FCC subsequently issued the desired report about what it would and
could
do about television violence, making one of its most significant
statements on the issue.[7]
Today members of Congress again are interested in the FCC's role in
dealing with television violence, and some would like to see the FCC
play a more active role. For example, during the 103rd Congress,
three
bills were introduced that would have required the FCC to become
involved in monitoring and reducing violence on television.[8] That these
three bills were introduced might suggest that the FCC has played a
minimal role where television violence policy is concerned. However,
it
would be useful to know precisely what contribution the FCC has made
to
the policy on this issue. Thus, the purpose of this paper is to
determine how the FCC has contributed to public policy-making on the
issue of television violence beginning with its 1975 report on
televised
violence through the present.
BACKGROUND
Because this study seeks to determine the FCC's public policy regarding
television violence, a brief discussion of the term "public policy"
and
a model of broadcast policy-making provide necessary background and
a
framework for analysis. One political scientist, Thomas R. Dye, has
defined public policy as "whatever governments choose to do or not to
do."[9] Another scholar, James E. Anderson, defined the concept as
"a
purposive course of action followed by [a governmental] actor or set of
actors in dealing with a problem or matter of concern."[10]
Together these
definitions are useful for this study: FCC policy, then, is
whatever
the agency purposively does or refrains from doing with regard to
television violence over a period of time.
But, of course, the FCC alone does not make television violence public
policy. As noted in the introduction, the FCC is one player of
several
involved in the policy-making process. The other players in a
systems
model described by Erwin G. Krasnow, Lawrence D. Longley and Herbert
A.
Terry are the courts, White House, Congress, industry and
public.[11] The
six players and their interrelationships form what Krasnow, Longley
and
Terry called the "broadcast policy-making system."[12]
Policy decisions - known as policy outputs - emerge from the
interactions between some or all of the players.[13] Outputs include FCC
rules and regulations, decisions by the FCC not to act, court
decisions,
laws enacted by Congress, executive orders.[14] Thus, according to
this
model, analysis of FCC actions and inactions would reveal information
about a part of the entire broadcast policy-making system because
purposive FCC action and inaction occurs within the system of
interactions with the other policy players. But before this analysis is
presented, this paper first examines the published literature
relevant
to a study of the FCC's policy on television violence.
LITERATURE REVIEW
Although there has been much scholarship on the general issue of
violence on television, there has been little detailed scholarly
attention to the specific topic of this study. No articles or books in
the political science field focused on the FCC's policy-making role
with
respect to violence on television; Krasnow et al.'s book only
touched
on the specific topic. Law journal articles about violence in the
media
have mentioned to varying extents the actions or inactions of the
FCC in
this area. None of the literature reviewed focused on the FCC, and
none
sought to analyze the FCC's role in television violence
policy-making.
Some of the law journal articles reviewed were concerned primarily with
the responses of the legislative or judicial branches of government
to
television violence. For example, Stephen J. Kim devoted the major
portion of his 1993 article to describing, analyzing and arguing
against
recent attempts by Congress to control violence on television.[15]
Although
some of the congressional proposals Kim analyzed would involve FCC
action, Kim's article did not offer any discussion of what has been the
FCC's role up to the introduction of the proposals. Similarly, in
another recent article, Julia W. Schlegel focused on congressional
action. Schlegel's article concerned the Television Violence Act of
1990, which exempted the networks from antitrust laws for three years
to
allow them to develop joint guidelines for reducing the amount of
television violence.[16] Other legal scholars focused almost entirely on
the response of the courts to the issue of violence on
television.[17]
Some authors, including Schlegel, briefly discussed FCC action
regarding other types of broadcast content. Schlegel examined the FCC's
role in enforcing the Children's Television Act of 1990 in the
context
of looking generally at federal attempts to improve children's
television.[18] She noted that the FCC initially assumed that a broadcaster
was complying with the Act's educational programming requirement
unless
a formal complaint filed with the FCC challenged the broadcaster's
compliance. But later, in 1993, the FCC took action, announcing that
cartoons no longer counted as educational television and
intentionally
delaying license renewals of seven stations that had not
demonstrated to
the FCC's satisfaction that they were meeting the educational
television
requirement, Schlegel wrote.[19] Schlegel's analysis of FCC action
in
enforcing the educational television requirement may provide some clues
about how the FCC has responded in dealing with television violence.
Still, she did not discuss in any systematic way what the FCC has
done
about television violence.
Two articles considered whether the FCC may regulate violence on
television in the same way the agency has been empowered to regulate
indecent broadcasts. In one article, Emily Campbell argued that
because
television violence "has never been singled out as less valuable,
and
thus, less deserving of [First Amendment] protection," the FCC could
not
regulate violence as the agency regulates indecent expression to
protect
children.[20] Television violence was also different from indecent
expression because violence is "generally an integral part of the story
line" in television programming whereas indecent expression is not;
unlike removing indecent curse words considered, removing violent
scenes
or acts "would substantially alter the entertainment value of the
work,"
she wrote.[21] She added that violence was unlike indecency because
there
was no evidence that viewers had stopped watching television because
of
violent content. Campbell's discussion of FCC action in the area of
television violence consists of a single sentence: "The FCC has
refused
to act in the area of television violence because such depictions
'have
never been held to be profane or obscene . . . nor indecent. . .
.'"[22]
Offering better analysis than Campbell's article, the second article,
by E. Barrett Prettyman, Jr., and Lisa A. Hook, noted that the FCC
could
not regulate television violence as it does indecent expression
because
the Commission does not have the statutory authorization to regulate
violence, whereas a federal statute prohibits obscene, indecent or
profane language.[23] However, Prettyman and Hook suggested that the
rationale of protecting children "might allow for the constitutional
monitoring of excessively violent programming, especially during the
viewing hours most populated by children. Excessive violence, like
'indecent' language, might be appropriate at some times but not at
others."[24] But Prettyman and Hook concluded their brief discussion of
the
FCC and television violence by stating that the FCC was unlikely to
control or prohibit television violence without statutory
authorization.
The discussions in the two articles of whether FCC's regulation of
indecency offers a possible rationale for regulating television
violence
are useful. However, neither article focused on what FCC cases over
time revealed about the application of indecency standards or the
relevance of indecency regulation rationales to television violence.
A few authors explained the Family Viewing Policy as an action of the
FCC in the area of violent broadcast programming. Adopted by the
television networks and the National Association of Broadcasters
Television Code Review Board, the policy stated that programming
broadcast during the first hour of prime time should be appropriate for
viewing by the whole family unless the broadcaster aired warnings
that
some of the materials might be unsuitable for children.[25] Thomas
G.
Krattenmaker and L.A. Powe, Jr., wrote that in 1974 then-FCC Chairman
Richard Wiley "cajol[ed] and coerc[ed] the three networks to adopt a
policy of self-regulation that would both reduce sex and violence and
take the FCC off the congressional hook."[26] In 1976, a federal
district
court judge struck down[27] the policy as unconstitutional because
broadcasters adopted the policy only under great pressure from the FCC,
legal scholars have noted.[28] Krasnow et al. described the FCC's
actions
relative to the Family Viewing Policy as an example of how
Congress,
which controls the budget of the FCC, can put pressure on the FCC to
take action on an issue.[29] Prettyman and Hook noted that following
its
experience with the Family Viewing Policy, the FCC declared in a 1983
report that FCC regulation of violent programming was impermissible
under the First Amendment and Section 326 of the Communications Act,
whi
ch prohibits FCC censorship.[30] Thus, although, it appears that
legal
scholars have analyzed the FCC's role in the development of the Family
Viewing Policy, they have not analyzed the policy within the overall
framework of the FCC as a policy-maker on television violence or
discussed in detail the official response of the FCC to the Family
Viewing Policy controversy. Krattenmaker and Powe's article could not
include later developments regarding the Family Viewing Policy
because
it was published in 1978, before the story of the Family Viewing
Policy
was complete.
Some authors discussed the FCC's view of violent television programming
under the Fairness Doctrine, which required broadcast licensees to
provide balanced coverage of controversial issues of public importance
discussed in broadcasts by their stations.[31] For example, Emily
Campbell
wrote that the FCC "refused to find that violent programming
constituted
the presentation of one side of a controversial issue."[32]
Campbell cited
a 1972 FCC case to support her conclusion and gave no facts or other
details of the case. Prettyman and Hook discussed the same case, In
re
George D. Corey,[33] in detail and came to the same conclusion about
the
Fairness Doctrine's inapplicability to violent programming.[34]
Although
these legal scholars examined the FCC's consideration of the
applicability of the Fairness Doctrine to violent programs, they did no
more than cite and discuss one key case decided in 1972.
One article discussed the FCC's exercise of its licensing powers in
relation to program content. Prettyman and Hook outlined how the FCC
generally handles initial licensing of broadcasters and license
renewal.
They found that the FCC has never denied initial licensing or license
renewal on the basis of program content.[35] They listed in
footnotes
several cases in which the FCC did not deny renewal on the basis of
allegedly offensive programming, including violent programming.
However, they did not discuss these cases, and their cases were no more
recent than 1979.[36]
In sum, although some of the literature relevant to this study
discussed the FCC's contribution to television violence policy, the
literature did not focus on the FCC and television violence. Rather,
the bulk of the literature focused on the roles of other
policymakers,
such as Congress and the courts. The article by Prettyman and Hook
included a relatively broad look at FCC action in the area of violence
on television, but that study was published in 1987, did not offer
systematic analysis of the various types of FCC action over time and did
not examine FCC testimony at congressional hearings, as this paper
does.
Thus, the literature does not contain a comprehensive study of the
FCC's role in television violence policy-making. This study seeks to
fill that gap by determining in what ways and to what extent the FCC
has
been involved in policy-making on television violence.
METHODOLOGY
In order to determine in what ways and to what extent the FCC has been
involved in policy-making on television violence, this paper
examines
and analyzes three types of sources: FCC cases, testimony by FCC
commissioners at congressional hearings on television violence and
public speeches given by FCC commissioners in the last few years. Cases
decided and testimony given since the FCC's 1975 "Report on the
Broadcast of Violent, Indecent, and Obscene Material"[37] are examined.
Speeches made from 1992 through l994 are analyzed.
The FCC cases were identified by conducting several searches of the
"FCC" file in the "FEDCOM" library in the LEXIS electronic database;
by
reading the relevant literature; by reading cases; and by using
Shepard's Citations. The FCC testimony before congressional committees
was found by first identifying every congressional hearing about
violence in the media that took place during the relevant time period.
These hearings were found by searching the on-line catalog of
government
documents at the university library; by searching the Government
Publications Office index available on CD-ROM; and by checking for
citations to hearings in literature and cases. Once all congressional
hearings about television violence were identified and obtained from
the
federal documents depository at the library, FCC commissioners'
testimony at the hearings was found by manually examining each volume.[38]
The full text of commissioners' public speeches was found in the
"FCC"
file in the "FEDCOM" library on LEXIS.
FINDINGS
A recurring theme in the FCC's analysis of its own role in public
policy-making on television violence was the tension between two parts
of the federal Communications Act: the no-censorship provision and
the
public interest standard. Section 326 of the Communications Act
states,
"Nothing in this Act shall be understood or construed to give the
Commission the power of censorship" over broadcast communications and
"no regulation or condition shall be promulgated or fixed by the
Commission which shall interfere with the right of free speech" by
broadcast communications.[39] Section 307(a) of the Act states that
the
FCC may grant licenses provided that "the public convenience,
interest,
or necessity will be served thereby."[40]
The examination of congressional hearings on television violence held
during the relevant time period found that an FCC member testified
at
only one out of 11 hearings about televison violence.[41] This
finding is
in itself notable because, if they wanted to testify at
congressional
committee hearings, FCC commissioners certainly would be permitted to
do
so.[42] The paucity of FCC testimony suggests that the FCC
purposively has
chosen inaction on the issue, letting other players in the
policy-making
system take the lead.
The analysis of FCC cases, testimony at the single congressional
hearing and recent speeches yielded three ways in which the FCC has been
asked to play or has played a role in dealing with television
violence:
(1) creating new rules; (2) enforcing two existing provisions,
notably
the public interest standard and the ban on obscenity, indecency and
profanity;[43] and (3) urging industry self-regulation. This paper
now
examines the FCC's action or inaction in these three ways, focusing on
the FCC's reasons for action or inaction.
CREATING NEW RULES
Over the years, Congress and citizens have asked the FCC to consider
creating rules to regulate television violence through its formal
rulemaking procedures. For example, in its 1975 report, "The Report on
the Broadcast of Violent, Indecent, and Obscene Material," the FCC
mentioned that it had received petitions in the early 1970s asking that
it formulate rules to regulate violence on television, particularly
in
the interest of protecting children.[44] Four years later, the FCC
mentioned in another report that it had considered petitions for
rulemaking on television violence. The Commission reported that it was
denying a Freedom of Information Act request by the Council on
Children,
Media, and Merchandising for access to a one-page draft item and a
one-page cover memorandum from the chief of the Broadcast Bureau to the
Commission containing recommendations on the disposition of two
petitions for rulemaking on televised violence.[45] And at congressional
hearings in 1977, congressmen asked FCC Chairman Richard E. Wiley
about
the possibility of FCC rulemaking on television violence.[46] Thus,
the FCC
has been aware that people believe it ought to be writing and
enforcing
rules regulating television violence.
But, the FCC repeatedly has stated that it will not and cannot write
rules regulating television violence. In its 1975 report, the FCC
said
it declined to devise rules for two main reasons. One reason was
that
"the adoption of rules might involve the government too deeply in
programming content, raising serious constitutional questions."[47]
Rulemaking on television violence was restrained by Section 326 of the
Communications Act, which prohibits FCC censorship, the FCC
explained.[48]
The second reason the FCC could not consider creating television
violence rules was that any judgments on the suitability of programs for
children would be highly subjective, the FCC said. "As a practical
matter, it would be difficult to construct rules which would take into
account all of the subjective considerations involved in making such
judgments. We are concerned that an attempt at drafting such rules
could lead to extreme results which would be unacceptable to the
American public," the FCC wrote.[49]
These two reasons for not creating new rules to limit television
violence were echoed at the House hearing on sex and violence on
television two years later. A congressman asked FCC Chairman Wiley why
the Commission had not held open rulemaking hearings, which would
offer
everyone concerned a chance to be heard on the issue of television
violence. Wiley responded, "I really didn't think the Commission could
adopt [television violence] rules constitutionally or legally under
the
[Communications] act, and, accordingly, I thought that rulemaking
would
not be appropriate."[50]
Wiley also explained to the congressional subcommittee that writing
rules to reduce violence on television would be inappropriate and
impossible because perceptions of what constituted excessive violence
varied widely. He testified:
[W]e are dealing here with highly subjective values, ones which
vary from person to person. I do not believe that it would be
possible or advisable for the Commission to attempt to formulate
programing [sic] standards for the avoidance of "excessive"
viole
nce - nor do I think it appropriate to require the American
people
to accept the personal program preferences of FCC
Commissioners.
Such subjective decisionmaking should not be made by the
Government
but by the people for themselves.[51]
The FCC has also suggested that it could not make rules to protect
children from the possible effects of televised violence without also
affecting programming choices for adults. Rulemaking would be
difficult, the FCC said in its 1975 report, because it would mean
"finding an appropriate balance between the need to protect children
from harmful material and the adult audience's interest in diverse
programming."[52] A fourth reason the FCC cited for refusing to make
rules
to limit television violence was a fear that creating rules would
discourage creativity in television programming.[53]
The commission has been asked to create and enforce rules limiting
television violence in the context of considering other rules relating
to programming. In 1976, the FCC concluded an inquiry into the use
of
reruns by network television.[54] During the inquiry, the FCC said
it
received many letters from viewers asking the Commission to reduce
violence (and sex) on television as part of a limitation on reruns.
Ultimately, the Commission decided not to propose any rules or
policies
restricting the use of reruns.[55]
The possibility of rulemaking dealing with television violence was
raised again when the FCC was considering its rules and policies[56]
interpreting the requirement in the Children's Television Act of 1990
that stations must serve the "educational and informational
programming"
needs of children.[57] Among the many organizations offering
comment on the
interpretation of the Act was the National Coalition on Television
Violence, which urged the FCC to adopt a definition of educational and
informational programming that included specifically "programming
stressing non-violence and strong family and social bonding."[58] The
FCC
rejected NCTV's proposal as beyond the intent and purpose of the
Act.[59]
The legislative history of the Act indicated that legislators'
perspective had been "consistent with allowing sufficient breadth of
discretion for licensee creativity and sensitivity to community needs
to
develop."[60]
ENFORCING EXISTING PROVISIONS
From 1975 to the present, the FCC has been asked to regulate television
violence under two existing provisions: the public interest
standard
for licensing, and the law prohibiting obscene, indecent and profane
broadcasts.[61] The FCC also has declined to use either of these
provisions
to limit television violence.
Public interest standard
One way in which the FCC has been asked to limit television violence is
by enforcing what is known as the public interest standard. All but
one
of the cases in which the FCC was asked to take action under the
public
interest standard involved licensing. Most of the licensing cases
in
which television violence was an issue were license renewal cases.
Only
one case involved assignment of licenses.
When a broadcaster applies for assignment of a license, the FCC may
grant the license if "the public interest, convenience, and necessity
will be served thereby."[62] Similarly, when a broadcaster applies
for
renewal of his or her license, the FCC must examine the broadcaster's
performance and may grant a renewal "if the commission finds that
public
interest, convenience, and necessity would be served thereby."[63]
Denial
of license renewal is considered to be the FCC's most severe
sanction
and is called "the death penalty" in the broadcast industry.[64]
The Commission said in 1975 that it recognized it was required to
ensure that licensees served the public interest. "The Commission has
long maintained the policy that program service in the public
interest
is an essential part of a licensee's obligation. . . . We have also
made
it clear that broadcasters have particular responsibilities to serve
the
special needs of children," the FCC wrote.[65] Yet, in general,
regulating
television violence is constrained by Section 326 of the
Communications
Act and the First Amendment, the FCC said.[66] "In light of
constraints
placed on the Commission by the Constitution and section 326 of the
Communications Act, the Commission 'walks a tightrope between saying
too
much and saying too little' when applying the public interest
standard
to programming," the FCC wrote.[67]
In a 1975 review of its ruling on a citizens' group complaint, the FCC
reiterated that it would not apply the public interest standard to
punish a licensee for the broadcast of violent television content. An
organization calling itself The Polite Society, Inc., had filed a
complaint with the Commission in 1974 stating that the licensee of
WLS-TV in Chicago had violated its duty to operate the station in the
public interest by airing "excessive mayhem and violence, especially
during prime time viewing for children."[68] The society contended in
its
complaint that its members and other audience members had been
harmed by
WLS-TV's broadcasts, which presented "a false and meretricious
picture
of physical violence without . . . showing its damage to the human
spirit." The complaint further alleged that by implying that "mayhem
and violence are acceptable means of resolving conflicts among men,
licensee has desecrated certain fundamental principles and values
including that of respect for human life."[69]
In the complaint, the society asked the Commission to direct the
licensee of WLS-TV to show cause why the Commission should not issue a
cease and desist order requiring the station to stop broadcasting
programming that contained the following:
(A) Mayhem or violence that is used primarily to sell a program.
(B) Mayhem or violence that is unnecessary to the story or
inappropriate to other program content.
(C) Mayhem or violence that is used primarily to attract or hold an
audience.
(D) Mayhem or violence that is excessively or unnecessarily vividly
realistic.
(E) Mayhem or violence that is presented out of context, i.e.,
violence for the sake of violence.[70]
The Polite Society also asked the FCC to hold a public hearing,
preferably in Chicago, to determine whether WLS-TV's license should be
revoked.
In December 1974, the Broadcast Bureau of the FCC issued a ruling
denying the society's requests. The ruling stated that Section 326 of
the Communications Act prohibited the Commission from censoring
broadcast content and that "the Commission does not attempt to direct
its licensees to present or to refrain from presenting programs which
feature 'excessive mayhem.'"[71] After the Broadcast Bureau's ruling
went
against them, Polite Society members filed a lawsuit in federal
district
court, seeking preliminary and permanent injunctions on WLS-TV's
broadcasts of violence and mayhem. In May 1975, a district court judge
dismissed the lawsuit on jurisdictional grounds. The Polite Society
then filed an application requesting the FCC to review the Broadcast
Bureau's ruling. The FCC reviewed the society's application and
concluded the Bureau's ruling was correct because the FCC's authority to
regulate program content was limited by constitutional and statutory
mandates.[72]
During the 1970s, two organizations mounted repeated challenges under
the public interest standard to the renewal of licenses for two
television stations on opposite coasts of the nation. The National
Association for Better Broadcasting's challenges to a license renewal
for KCOP-TV in Los Angeles will be discussed first. Following that
will
be a discussion of the Washington Association for Television and
Children's challenge to a license renewal for WDCA-TV in Washington.
In a 1976 opinion, the FCC discussed NABB's petition to deny KCOP-TV's
license renewal application, which had been filed in 1974.[73] The
FCC
noted that NABB "urge[d] the Commission to consider alleged excessive
violence in KCOP's programming available for child viewing as a prime
factor in any decision on KCOP's license renewal application."[74]
NABB
supported its assertion that KCOP-TV's programming contained excessive
violence with a list of the violent activities shown on KCOP-TV
during
one selected week. Of KCOP-TV's total weekly programming time,
twenty-eight and one-half hours "dealt with excessive violence and is
reported to have been scheduled so as to capitalize on the maximum
availability of child viewers," NABB claimed.[75]
Although NABB found excessive violence overall in KCOP-TV's
programming,[76] NABB objected specifically to violence in two types of
program content. One type was the weekly airing of a program called
"Championship Wrestling," which NABB said contained crude and brutal
conduct. The program's "violent and brutal activity" had harmful
effects on both children and adults in the audience, NABB contended.[77]
The other type of programming NABB objected to was cartoons of an
allegedly violent nature.[78] To support its contentions that televised
violence had harmful effects on children, NABB cited social science
studies. NABB also found objectionable KCOP-TV's airing advertisements
for upcoming violent shows during children's programs.[79]
Therefore, NABB
argued, "programming of this nature, absent protective measures such
as
advance program screening,[80] raises serious questions as to the
qualifications of KCOP to operate in the public interest."[81]
In response, the FCC stated that Section 326 of the Communications Act
prohibited censorship by the Commission. "Thus, we believe that it
is
inappropriate for the Commission to enter into this sensitive area
of
licensee programming," the Commission wrote.[82] The FCC granted
KCOP-TV's
license renewal, concluding that NABB had not raised any substantial
and
material questions of fact to show that renewing KCOP-TV's license
would
not serve the public interest.[83]
The following month, NABB filed a petition for reconsideration of the
Commission's decision on KCOP-TV's license renewal. NABB argued
that
the FCC inadequately addressed NABB's allegations of excessive
violence
in KCOP-TV's programming.[84] The FCC affirmed its decision,
reiterating
that it would be inappropriate for the Commission to regulate a
licensee's programming.[85] Denying NABB's reconsideration petition, the
FCC said, "NABB has presented no persuasive argument as to why we
should
reconsider that position, and accordingly we decline to do so."[86]
NABB refused to give up. When KCOP-TV applied for license renewal
again, three years after the license renewal application discussed
above, NABB again petitioned the FCC to deny the license in large part
because of its perception that KCOP-TV's programs contained
excessive
violence.[87] NABB alleged that the station broadcast more violence
to more
children during its license period than any other television station
in
the country. KCOP-TV's entertainment programs were characterized by
crime, violence, horror and sadism,[88] and these programs "consumed
over
three million child viewing hours" during the license period, NABB
stated. The group claimed that violent shows were consistently
broadcast when children were likely to be in the viewing audience.[89]
Also
objectionable to NABB and related to the allegedly excessive violent
programming was KCOP-TV's broadcasts of horror movies.[90]
This time, NABB again called the FCC's attention to social science
research that allegedly indicated the negative effects of television
violence on children. The group asserted that establishing a definite
causal relationship between viewing violent acts on television and
children's violent actions was unnecessary for the Commission to take
action. "Once the Commission realizes that televised violence is an
issue of overriding public concern and that KCOP has been a leader in
presenting crime and brutality, it becomes obvious KCOP's license
should
not be renewed," NABB contended.[91]
In its response to NABB's petition, the FCC did not address how strong
social science evidence on the effects of televised violence had to
be
for the Commission to act against licensees who broadcast violent
programming. The Commission did make the surprising and unprecedented
suggestion that it might have the authority to regulate television
violence in the public interest provided there was a preexisting public
policy statement against television violence. The FCC wrote:
We decline to undertake the type of content-based regulation which
would be entailed by consideration of NABB's allegations.
While
our authority to regulate broadcast stations in the public
interest
may be sufficiently broad to encompass such regulation, the
approach contemplated by NABB would drastically increase the amount
of governmental involvement in an area traditionally left to
licensee discretion. Moreover, to adopt that approach [in this
case] would be clearly inappropriate absent a preexisting
statement
of public policy against the presentation of televised
violence.[92]
Unfortunately, the FCC did not explain who ought to make the
"preexisting statement of public policy." The FCC once again renewed
KCOP-TV's license, rejecting NABB's assertions as insufficient to
show
that renewal would be inconsistent with the public interest.[93]
At about the same time on the East Coast, WATCH was attempting to
convince the FCC that it ought to deny WDCA-TV's application for license
renewal.[94] WATCH's petition filed in 1978 complained primarily
about the
quality of the station's programming for children. WATCH claimed,
among
other assertions, that WDCA-TV's children's programming primarily
was
composed of "outdated animated cartoons that are replete with
violence."[95]
The Commission did not explain WATCH's complaints about television
violence beyond the above statement about cartoons and decided, without
responding to WATCH's complaints, that renewing WDCA-TV's license
would
indeed serve the public interest.[96]
About one month after the FCC thus rejected WATCH's concerns, WATCH
filed a petition asking the FCC to reconsider its license renewal
decision. In its petition, WATCH claimed the Commission "failed to
address the issue of whether Channel 20's children's entertainment
programming was excessively violent . . . ."[97] This time the FCC
responded specifically to WATCH's complaints about violence in programs.
Once again, the Commission said that Section 326 of the Communications
Act and the First Amendment prohibited FCC interference in a
licensee's
programming decisions.[98]
As noted previously, there was one license assignment case in which
television violence was an issue. In 1985, the National Coalition on
Television Violence, the Media Access Project and WATCH filed
separate
petitions to deny assignment of licenses for five television
stations to
News America Television Inc., owned by media mogul Rupert
Murdoch.[99] The
stations were in major markets - New York, Los Angeles, Dallas,
Houston
and Washington - and were controlled by Metromedia Radio &
Television,
Inc.
The three petitions by the three public interest groups presented
essentially identical objections to News America's acquisition of the
television stations, the FCC wrote. Among the groups' objections was
the assertion that "[t]he public interest will not be served by a
grant
of these applications to Murdoch because he will increase the amount
of
televised violent entertainment programming . . . ."[100] The FCC
rejected
the groups' assertion as irrelevant and immaterial to a grant of the
applications for assignment. The Commission said it declined to
impose
any limitations on the broadcast of violent programming and cited
Section 326 of the Communications Act.[101] "[A] licensee has editorial
control of programming and the Commission cannot direct a broadcaster
on
how its station shall be programmed," the FCC wrote.[102]
Ultimately, the
FCC concluded that the three groups' petitions "failed to raise any
substantial and material questions of fact to establish that a grant of
these applications would be inconsistent with the public
interest."[103] The
FCC denied the groups' petitions to deny assignment of the licenses.
The FCC licensing cases demonstrate very clearly that the Commission
has been unwilling to use the public interest standard as a mechanism
for regulating television violence. The Commission has argued
repeatedly that it viewed such regulation as both unconstitutional and
contrary to statutory provisions. Yet, in one case the FCC did
suggest
that its authority under the public interest standard might be broad
enough to include regulation of television violence provided there
existed a public policy statement against such content.
Obscene, indecent and profane expression
In one instance, the FCC was asked to limit violence under the federal
statute prohibiting obscene, indecent and profane expression in
broadcasting. In its 1974 complaint to the FCC about the broadcast of
violent content by Chicago station WLS-TV discussed above, The
Polite
Society argued that violent television content violated the ban on
obscene and profane expression. The Broadcast Bureau rejected this
argument, and the FCC affirmed the Bureau's ruling, noting that the
society had not identified any specific examples of obscene or profane
expression either in its original complaint or in its request for
review
of the Bureau's ruling. The FCC concluded, "Portrayals of mayhem
and
violence have never been held to be profane or obscene under the
standard enunciated by the United States Supreme Court . . ., nor have
mayhem and violence been held to be indecent under the definition
adopted by the Commission . . .."[104] Thus, the Commission dismissed
The
Polite Society's weak attempt to argue that televised violence, which
the Society claimed "desecrated certain fundamental principles and
values,"[105] constituted obscenity or profanity.
URGING OTHERS TO ACT
As the above discussion demonstrated, the FCC has refused to create new
rules or enforce existing provisions in order to limit television
violence. But this is not to say that the FCC has played no role in
regulating television violence. The way in which the FCC has chosen
to
act is by urging others - the broadcast industry, individual
broadcasters, citizens' groups and individual citizens - to take action.
In its 1975 report, "The Report on the Broadcast of Violent, Indecent,
and Obscene Material," the FCC noted that although researchers
continued
to study the effects of television violence, the evidence known at
the
time was "sufficient to justify consideration of changes in industry
practices."[106] Yet the FCC stated that broadcasting industry
self-regulation was preferable to the adoption and enforcement of
any
"rigid governmental standards."[107] In its response to the
complaint by The
Polite Society, the FCC referred to the above report and reiterated
that
the Commission supported "a policy of self-regulation with regard to
programming of sex and violence."[108]
At the congressional hearing in 1977, the FCC again emphasized its
position that the broadcast industry should regulate itself where
television violence was concerned. "Vigorous and effective
self-regulation simply must operate in this area," FCC Chairman Wiley
stated.[109] Echoing previous statements, Wiley noted that the
social
science evidence of the negative effects of television violence was not
very clear but said that "we know enough to suggest that this is a
matter in which broadcasters should take special care and caution -
especially, in my view, with the child viewer in mind."[110] However,
Wiley
said the primary responsibility for ensuring that children were not
harmed by television violence rested not with the broadcaster but with
parents. "[A]ll too often, in our contemporary society, parents are
delegating their traditional and fundamental obligations to
institutions
such as the school, the Government, and the media. This trend, I
hope,
can be arrested," Wiley testified.[111]
Wiley described some specific ways in which broadcast industry members
were addressing the issue of television violence: The National
Association of Broadcasters, the networks and Hollywood production
companies had discussed the issue together; television network
executives had informed their affiliates of a planned reduction in the
number of action programs in their 1977-1978 schedules; programs
edited
for syndication were being edited to remove excessive violence; and
leading advertisers and advertising agencies had announced policies
stating they would avoid sponsoring "heavily violent programs."[112]
Wiley argued that teachers, the American Medical Association, church
groups, consumer groups and individual citizens ought to play a role
in
industry self-regulation. He said he hoped that citizens and
citizens'
groups could work on industry self-reforms with the NAB.[113] The
FCC
supported a professional, industry-wide code because such a code would
assist the individual broadcaster, who otherwise would have to rely
solely on his or her own judgment.[114]
In a 1983 report, the FCC described informal actions that its former
chairman Wiley had taken in 1975 to address the issue of television
violence. Wiley had strongly urged industry officials to take action
to
self-regulate violence on television. His actions directed to
encouraging self-regulation consisted of five meetings between Wiley
and/or members of the Commission staff and industry representatives
about various proposals for dealing with sex and violence on
television;
three public speeches in which Wiley called for the industry to
regulate
itself lest the government step in to regulate; several telephone
conversations between Wiley and various network executives; and
suggestions by Wiley to NAB representatives to hasten their
consideration of a proposal for an amendment to the NAB Television Code.[115]
In congressional testimony, Wiley said that his discussions with
industry representatives were not unprecedented: Other FCC chairmen
before him had held such discussions.[116]
Following Wiley's initial encouragement of industry self-regulation,
CBS proposed that the NAB Television Code, which had existed since
1952,
be modified to state that the first hour of network prime time would
not
contain any program unsuitable for the whole family to watch. ABC
and
NBC then announced that they would adopt policies similar to CBS's
idea.
In April 1975, the NAB Television Board of Directors formally adopted
CBS's proposal, which was known as the family viewing
amendment.[117]
Wiley's urging of industry self-restraint was controversial. Some
members of the industry believed that Wiley had done more than simply
encourage industry officials to take action; some critics believed
that
Wiley had coerced, threatened or intimidated industry officials into
adopting the family viewing amendment and sued the FCC in federal
court.[118]
Although a federal district court found that Wiley's actions had been
coercive, that ruling was later vacated on appeal by the Ninth
Circuit
court, which said issues raised by the case were properly heard and
handled by the FCC.[119]
In its review of Wiley's actions, the Commission found nothing improper
or coercive. Aware that formal FCC action to regulate violence on
television was of doubtful validity under the First Amendment and
Section 326 of the Communications Act, Wiley simply took informal
actions.[120] "Chairman Wiley did little more than point out that if the
industry did not engage in effective self-regulation, the FCC might be
forced by the pressure of Congress and of public opinion to consider
some action such as an administrative inquiry," the FCC said.[121] He
sought
only to convince the industry to take voluntary action and reminded
broadcasters of their responsibilities to the public, according to the
FCC report on Wiley's actions.[122]
Testifying at the 1977 hearing, Wiley said there were limits on the
FCC's proper and legal role where an industry code was concerned.
Discussions between the FCC and industry representatives were
appropriate, but he refused to get the FCC involved in implementing or
enforcing any industry code.[123] "[T]he Commission is not a
guarantor for
the industry's good faith and responsible action," Wiley said.[124]
When a
congressman asked Wiley for his definition of violence, Wiley
refused to
suggest any definition. He said it would be inappropriate for him
as
FCC chairman to even try to define violence.[125]
The FCC has also found it unacceptable for a citizens' group and a
broadcaster to create an agreement in which the broadcaster agreed not
to televise violent programming if the agreement potentially
implicated
the FCC in enforcement.[126] NABB and Metromedia, the licensee of
KTTV in
Los Angeles, reached a mutually satisfactory agreement after NABB
filed
a petition to deny Metromedia's license. The agreement stated,
among
other provisions, that 40 cartoon series were not suitable for
broadcast
and would not be purchased or televised by KTTV and would be removed
from the station's program inventory if the programs had been
purchased
already.[127] After reaching the accord with Metromedia, NABB filed
a
petition withdrawing its original petition to deny and submitted the
agreement to the FCC. The motion for withdrawal of the petition to
deny
noted that the withdrawal was predicated on the filing of the
agreement
with the FCC and on Metromedia's adherence to the terms of the
agreement.[128]
In 1975, the Commission informed NABB that its agreement with
Metromedia might "operate to improperly curtail the licensee's ultimate
responsibility to operate the station in the public interest."[129]
The
Commission objected to language in the agreement that appeared to bind
Metromedia to fixed types and amounts of programming, which
improperly
infringed on Metromedia's own responsibility regarding
programming.[130]
Because the agreement contained a promise that Metromedia would be
bound
by the programming restrictions, the Commission was concerned that
"approval [of the agreement] would place the Commission in the role of a
censor of the programs listed . . .."[131] The FCC decided that the
agreement had no force or effect before the Commission. Only after NABB
and Metromedia submitted an agreement that had been amended to allay
the
FCC's concerns did the FCC dismiss NABB's original petition to deny
and
renew Metromedia's license. "[T]he amended Agreement recognizes the
licensee's responsibility to operate its station in the public
interest,
and the necessity to permit the station a certain amount of
flexibility
within which to fulfill that obligation," the FCC wrote.[132] The
FCC found
the amended agreement consistent with its own policy, it said. In
other
words, the amended agreement did not have the potential of involving
the
FCC in enforcing the agreement.
Thus, the analysis of FCC cases and testimony showed that the
Commission has taken action on the issue of television violence by
asking others to act. This conclusion is supported by an examination of
recent speeches by FCC commissioners. In a speech before the
American
Psychological Association's Annual Convention in August 1994, FCC
Chairman Reed E. Hundt said it was "very important for broadcasters,
programmers, and others to address the issue of television violence."
But the best advocates of change were likely to be audience members,
he
added. Hundt told the APA members that they could have a
significant
impact on reducing television violence by analyzing, reporting on and
speaking out against it.[133] In a speech in February 1994, FCC
Commissioner
James H. Quello said that television broadcasters could not take all
of
the blame for what he called an epidemic of violence in the country.
"But broadcasters who are licensed to serve the public interest
cannot
stand by, doing nothing to help combat America's most pernicious
problem. TV is the most influential and pervasive of all media. Public
trustees should volunteer to use it for the public good," Quello
said.[134]
In three speeches, FCC members went beyond urging others to act and
warned that if the television industry did not voluntarily reduce
violence on television, the government would take action. In one
speech, addressing a television industry group in 1994, Hundt asked
broadcasters to accept that television violence has a negative effect
on
children.[135] He urged them not to seek out lobbyists and lawyers
for
advice on determining the minimum the industry had to do to avert
legislation. Then came Hundt's warning:
[E]ven if Congress did pass legislation, you could challenge it in
court. You could throw the issue of TV violence to our judges
who
would have to weigh the interaction between the First Amendment
and
TV's undeniable impact on children. I want you to know that if
Congress passes legislation concerning TV violence, and if the
FCC
has a role in implementing that legislation, we will do
whatever we
can to win those lawsuits for the government. And we would
have
strong arguments.[136]
Hundt then specified some of those arguments. The FCC might argue that
the U.S. Supreme Court's ruling in Red Lion Broadcasting Co. v.
FCC[137] that
the interests of television viewers are paramount justified
legislation
protecting children from television violence, Hundt said. Another
possible argument comes from the Court's ruling in FCC v. Pacifica
Foundation:[138] Claiming the solution to the problem of television
violence
was turning off a show was as unpersuasive as saying the remedy for
assault was running away after the first blow, he suggested.[139] The
FCC
might also argue that "just as courts have upheld laws to protect
children from 'attractive nuisances' like unfenced swimming pools, so
courts should uphold laws that protect children from copying the
violence they see on TV."[140] For his final argument, Hundt made a poor
analogy and a mistake in alluding to a famous statement from a Supreme
Court opinion. He said that "just as courts have found that the
First
Amendment does not permit a person to avoid punishment for shouting
fire
in a crowded theater, so it does not preclude Congress from
protecting
children from programming that inflames young minds."[141] Hundt
failed to
note that in Schenck v. United States, Justice Holmes said the First
Amendment would not protect a person "falsely shouting fire."[142]
After
listing the FCC's possible arguments, Hundt said he hoped the problem
of
television violence never had to be solved in court. "I am
interested
in challenging not your willingness to pay for lawyers but your
capability for creative and caring action," he told the industry
representatives in his audience.[143]
The two other speeches did not focus on the issue of television
violence as Hundt's speech above did. But they both contained warnings
to the television industry to take action - or else - an example of
what
has been termed the FCC's "raised eyebrow" approach to
regulation.[144] In a
speech in 1993, then-FCC Commissioner Ervin S. Duggan said: "If
[the
broadcasting and programming] communities mire themselves in a sort
of
sterile, unimaginative free-market fundamentalism and fail to
respond to
repeated calls for voluntary action, the Congress is not likely to
ignore the vacuum that results. Its recourse may well be to impose a
vision of the public interest on those who cannot or will not devise
a
worthwhile vision of their own."[145]
In the other speech, Quello said the country's epidemic of violence had
to be brought under control. "[R]esponsible TV and cable executives
and
program producers must take the lead or Congress might," Quello
warned.[146]
Government regulation of television violence had troublesome First
Amendment implications, he acknowledged. "But if the First Amendment
conflicts with outrageous programs that can be justifiably charged
with
violating the public interest, then the public interest must
prevail,"
Quello concluded.[147]
In sum, during the period of time from 1975 to the present, the FCC has
not created any new rules to regulate television violence. The
Commission's arguments against rulemaking have been that the
Constitution and the Communications Act prohibit rulemaking; that
rulemaking would be difficult or impossible because perception of what
constituted excessive violence was highly subjective; and that
creating
rules would discourage creativity in television programming.
The FCC also has declined to issue any cease and desist orders, revoke
licenses, deny assignment of licenses or deny license renewals under
the
public interest standard. This is true despite the fact the FCC has
said its authority to regulate broadcasting in the public interest
might
be broad enough to encompass regulation of violent content. The
Commission also has not restricted violence under the ban on obscenity,
indecency and profanity in broadcasting.
The FCC has exercised a policy of urging others to take action on the
issue of television violence. The FCC has asked individual
broadcasters
and broadcasters as a group to engage in self-regulation. The
Commission has asked parents to be responsible for monitoring what and
how much television violence their children watch. The FCC has
asked
citizens' groups to help broadcasters know what programming best
serves
the public interest. But the FCC had objected to citizens' groups
extracting agreements from broadcasters to limit violent programming
that would place the FCC in the position of enforcing the agreements.
In recent speeches, FCC commissioners have stated that something
must be
done to reduce violence on television, and they have repeated that
it
should be broadcasters, program producers, social scientists and
general
television audience members who take action in reducing the
violence.
The commissioners have also warned that if the industry does not
voluntarily regulate violence on television, then Congress very likely
would step in to create regulations. Furthermore, Chairman Hundt
has
stated that the FCC would fight to support any television violence
regulations Congress were to create.
CONCLUSION
The FCC's television violence policy was defined in this paper as
whatever the agency purposively does or refrains from doing about the
issue of television violence over a period of time. An analysis of
FCC
decisions and statements on the issue over nearly 20 years showed
that
the FCC's policy consists of formal purposive inaction in the
exercise
of the FCC's authority and informal purposive action in the
Commission's
urging of others to act. In other words, the FCC, at least to some
extent, has chosen to play a weak role in television violence
policy-making. The Commission has acknowledged that the public interest
standard for licensing might be broad enough to permit FCC
regulation of
television violence and has decided not to regulate.
The Commission's assertion that the absence of statutory authorization
and the existence of the First Amendment and Section 326 prevent the
FCC
from regulating television violence is rather disingenuous in light
of
the agency's past content regulation - without statutory
authorization -
in other areas. For example, the FCC did not require specific
statutory
authorization for enforcing the Fairness Doctrine for nearly forty
years. Similarly, from 1970 to 1984, the FCC regulated children's
programming and advertising under no specific statutory authority.[148]
Apparently, neither the First Amendment nor Section 326 stopped the FCC
from exercising policies of purposive action in these two areas.
Contrasting the FCC's television violence policy with these other
policies begs an honest explanation D perhaps the powerful influence of
another player in the policy-making system, the television industry
D
for the FCC's purposive inaction on television violence.
In addition, it will be interesting to observe whether Chairman Hundt
will articulate his arguments justifying limitations on television
violence in testimony before future congressional committees, or in any
other official capacity. FCC commissioners have spoken quite
passionately against television violence in recent speeches. Yet,
curiously, they have not offered their opinions at the several
congressional committee hearings on the issue of television violence
that have taken place during the past few years.
[1] See, FCC Fines Sta
tion; Voids 4 Complaints, News Media & L. 53-54 (Summer 1988);
Racial, Indecent Broadcasts Before FCC, News Media & L. 42-44 (W
inter 1990); Groups
Challenge FCC Indecency Penalties,
News Media & L. 18 (Spring 1993); Court Upholds FCC
E
nforcement Procedure, News Media & L. 27 (Summer 1993); FCC Fines Infinit
y for Stern
Broadcasts, News Media & L. 50 (Fall 1993)
; Broadcaster Fined $600,000 for Stern Shows,
News Media & L. 27 (Winte
r 1993); Station Settles Indecency Case with FCC, News Media
& L. 24 (Spring 1994). The total amount of fines for indecency rep
resents fines
initially imposed by the FCC during the
time period and does not take into account
later reduc
tions or dismissals of fines.
[2] Erwin G. Krasnow, Lawrence D. Longley
& Herbert A. Terry, The Politics of
Broadcast Regulat
ion 9 (1982).
[3] 47 U.S.C. __ 151, 303 (1994).
[4] H.R. Rep. No. 113
9, 93rd Cong., 2nd Sess. 15 (1974); S. Rep. No. 1056, 93rd Cong.,
2nd S
ess. 17 (1974).
[5] Television and Growing Up: The Impact of Televised
Violence, A Report to the
Surgeon General from the Sur
geon General's Scientific Advisory Committee on Television
and Violence, (1972).
[6] Report on the Broadcast of Violent, Inde
cent, and Obscene Material, 51 F.C.C. 2d
418 (1975).
[7] Id.
[8] Bills Open Some Records, Close Others, 18 News Media & L.
2 (Spring 1994); Sandra
D. Scott, Beavis & Butthead: W
e Didn't Start the Fire, 21 Media L. Notes 7 (Spring
1994).
[9] Thomas R. Dye, Understanding Public Policy 1 (1975).
[10]
James E. Anderson, Public Policy-Making 3 (1984).
[11] Krasnow et al.,
supra note 2, at 9.
[12] Id. at 135.
[13] Id. at 136.
[14] Id. at
136-137.
[15] Stephen J. Kim, "Viewer Discretion is Advised": A Structu
ral Approach to the
Issue of Television Violence, 142
U. Pa. L. Rev. 1383, 1387 (1994).
[16] Julia W. Schlegel, The Televisio
n Violence Act of 1990: A New Program for
Government C
ensorship? 46 Fed. Com. L. J. 187, 194 (1993).
[17] See, e.g., Laura W.
Brill, The First Amendment and the Power of Suggestion:
Protecting "Negligent" Speakers in Cases of Imitative Harm, 94 Colum.
L. Rev. 984
(1994); Thomas G. Krattenmaker & L.A. Powe
, Jr., Televised Violence: First Amendment
Principles
and Social Science Theory, 64 Va. L. Rev. 1123 (1978).
[18] Schlegel,
supra note 16, at 189.
[19] Id. at 196-197.
[20] Emily Campbell, Tele
vision Violence: Social Science vs. the Law, 10 Loyola Ent.
L. J. 413, 457 (1990).
[21] Id.
[22] Id. (citing Report on the
Broadcast of Violent, Indecent, and Obscene Material,
51 F.C.C. 2d 418 (1975)).
[23] E. Barrett Prettyman, Jr., & Lisa A. Hoo
k, The Control of Media-Related Imitative
Violence, 38 Fed. Com. L. J.
317, 344 (1987).
[24] Id. at 343. (citing National Association for Bett
er Broadcasting, 591 F.2d 812
(D.C. Cir. 1978)).
[25]
Krasnow et. al, supra note 2, at 98.
[26] Krattenmaker & Powe, supra
note 17, at 1129.
[27] Writers Guild of America West v. FCC, 423 F. Supp
. 1064 (C.D. Cal. 1976), vacated
609 F.2d 355 (9th Cir. 1979), cert. d
enied, 449 U.S. 824 (1980).
[28] Krattenmaker & Powe, supra note 17, at
1267; Campbell, supra note 20, at 458.
[29] Krasnow et. al, supra note
2, at 96.
[30] Prettyman & Hook, supra note 23, at 338.
[31] Donald
Gillmor et al., Mass Communication Law: Cases and Comment 715, 793 (1990)
.
[32] Campbell, supra note 20, at 456.
[33] 37 F.C.C.2d 641 (1972).
[34] Prettyman & Hook, supra note 23, at 341.
[35] Id. at 335-336.
[36] Id. at 336-337.
[37] 51 F.C.C.2d 418 (1975).
[38] Telephone cal
ls to the FCC's public information department and library confirmed
only that FCC commissioners had not testified at television
violence hearings held in
1993. No one at the FCC was
able or willing to identify instances in which
commis
sioners had testified at television violence hearings in previous years.
[39] 47 U.S.C. _ 326 (1994).
[40] 47 U.S.C. 307(a) (1994).
[41] The
hearing at which an FCC commissioner testified was Sex and Violence on T
V:
Hearing Before the Subcomm. on Communications of th
e House Comm. on Interstate and
Foreign Commerce, 95th
Cong., 1st Sess. (1977). Hearings on television violence at
which FCC commissioners did not testify include: Violence on Telev
ision, Hearings
Before the Subcomm. on Telecommunicati
ons and Finance of the House Comm. on Energy and
Comme
rce, 103rd Cong., 1st Sess., May 12, June 25, July 1, 29, and Sept. 15, 1
993;
Television Violence Act of 1989, Hearing Before t
he Subcomm. on Economic and Commerical
Law of the House Comm. on the Ju
diciary, 101st Cong., 1st Sess., on H.R. 1391, May 10,
1989; Television
Violence Act of 1988, Hearing Before the Subcomm. on Monopolies and
Commercial Law of the House Comm. on the Judiciary, 100th
Cong., 2nd Sess., on H.R.
3848, Oct. 5, 1988; Media Vi
olence, Hearing Before the Subcomm. on Juvenile Justice of
the Senate Comm. of the Judiciary, 98th Cong., 2nd Sess., Oct. 25, 1
984; Crime and
Violence in the Media, Hearing Before t
he Subcomm. on Crime of the House Comm. on the
Judicia
ry, 98th Cong., 1st Sess., April 13, 1983.
[42] Telephone interview wit
h Dr. Richard Richardson, Professor of Political Science,
University of North Carolina, Chapel Hill, N.C. (Dec. 5, 1994). Rich
ardson said that
generally witnesses are either invite
d or subpoenaed to testify at congressional
committee
hearings. However, government officials, such as FCC commissioners,
doubtlessly would be given access to the hearings, Richard
son said.
[43] The FCC has been asked to apply the Fairness Doctrine to
depictions of violence
on television but not during t
he period of time under study in this paper. See In Re
Complaint by George D. Corey, 37 F.C.C.2d 641 (1972). The FCC's refusal
to apply the
Fairness Doctrine in this case is worthy
of note, but it is less significant today in
light of
the FCC's abandonment of the Doctrine in 1987. Gillmor et al., supra note
31,
at 793.
[44] 51 F.C.C.2d 418, 419 (1975).
[45]
In the Matter of Council on Children, Media, and Merchandising, 71 F.C.
C.2d 44,
47 (1979).
[46] Sex and Violence on TV, sup
ra note 41, at 169.
[47] 51 F.C.C.2d 418, 419 (1975).
[48] Id. at 420
.
[49] Id. at 419.
[50] Sex and Violence on TV, supra note 41, at 169
.
[51] Id. at 166.
[52] 51 F.C.C.2d at 420.
[53] Id.
[54] The FCC
defined reruns as "programs presented a second time during the same
broadcast year." 61 F.C.C.2d 946 (1976).
[55] Id. at 946
, 954.
[56] In the Matter of Policies and Rules Concerning Children's T
elevision Programming,
6 F.C.C.R. 2111 (1991).
[57] 47 U.S.C. _ 73 (1
991).
[58] 6 F.C.C.R. at 2125 n.81.
[59] Id.
[60] Id. at 2114.
[61
] 18 U.S.C. _ 1464; 47 U.S.C. _ 503(b)(2) (1994).
[62] 47 U.S.C. _ 307
(a).
[63] 47 U.S.C. _ 307(d).
[64] Gillmor et al., supra note 31, at
715.
[65] 51 F.C.C.2d at 420.
[66] Id.
[67] Id. (quoting from Banza
f v. FCC, 405 F.2d 1082, 1095 (D.C. Cir. 1967)).
[68] In Re Complaint o
f The Polite Society, Inc., 55 F.C.C.2d 810 (1975).
[69] Id.
[70] Id.
[71] Id. at 811.
[72] Id.
[73] In Re Application of KCOP Televisio
n, Inc., 59 F.C.C.2d 1321 (1976), recons.
denied, 62 F
.C.C.2d 93 (1977).
[74] 59 F.C.C.2d at 1326.
[75] Id.
[76] NABB als
o attacked the station for not providing balanced religious programming,
for low-quality children's programming, for its lack o
f service to minorities in the
audience and for its us
e of lotteries to attract audiences. Id. at 1321 (1976).
[77] Id.
[78]
Id. at 1326.
[79] Id.
[80] The FCC opinion did not explain what NAB
B meant by "advance program screening."
[81] 59 F.C.C.2d at 1326.
[82]
Id.
[83] Id. at 1333.
[84] In Re Application of KCOP Television, In
c., 62 F.C.C.2d 93 (1977).
[85] Id. at 94.
[86] Id.
[87] In Re Appl
ication of KCOP Television, Inc., 71 F.C.C.2d 1430 (1979).
[88] Accordi
ng to NABB, programs characterized by such content included "Batman,"
"Superman," "Aquaman," "Mighty Hercules," "Speed Racer,"
"Magilla Gorilla," "Amazing
Three," "The Three Stooges
," "Mod Squad," "The FBI," "Adam 12," "Alias Smith and Jones"
and "The
Rookies." Id. at 1431 n.3.
[89] Id. at 1431.
[90] Id. at 1430-1431.
[91] Id. at 1432.
[92] Id. (citation omitted) (emphasis added).
[93]
Id. at 1445.
[94] In Re Application of Channel 20, Inc., 70 F.C.C.2d 1
770 (1979), recons. denied,
78 F.C.C.2d 648 (1979).
[
95] 70 F.C.C.2d at 1772.
[96] Id. at 1774.
[97] In Re Application of
Channel 20, Inc., 78 F.C.C.2d 648, 649 (1979).
[98] Id. at 651.
[99]
In Re Applications of Metromedia Radio & Television, Inc., 102 F.C.C.2d
1334
(1985).
[100] Id. at 1339.
[101] Id. at 1344.
[102] Id. at 1343.
[103] Id. at 1352.
[104] 55 F.C.C.2d at 813.
[
105] Id. at 810.
[106] 51 F.C.C.2d at 418.
[107] Id. at 419.
[108]
55 F.C.C.2d at 811.
[109] Sex and Violence on TV, supra note 41, at 16
6.
[110] Id. at 165.
[111] Id. at 166.
[112] Id. at 167.
[113] Id
. at 167-168.
[114] Id. at 182.
[115] In the Matter of Primary Jurisd
iction Referral of Claims Against Government
Defendant
Arising From the Inclusion in the NAB Television Code of The "Family Vie
wing
Policy," 95 F.C.C.2d 700, 705 (1983).
[116] Sex
and Violence on TV, supra note 41, at 169.
[117] 95 F.C.C.2d at 704. T
he family viewing amendment to the NAB Code stated:
"A
dditionally, entertainment programming inappropriate for viewing by a ge
neral family
audience should not be broadcast during the first hour of
network entertainment
programming in prime time and in
the immediately preceding hour. In the occasional case
when an enterta
inment program in this time period is deemed to be inappropriate for
such an audience, advisories should be used to alert viewe
rs. Advisories should also be
used when programs in later prime time pe
riods contain material that might be
disturbing to sig
nificant segments of the audience.
"These advisories should be presente
d in audio and video from the beginning of the
program
and when deemed appropriate at a later point in the program. Advisories
should
also be used responsibly in promotional materi
al in advance of the program. When using
a [sic] advisory, the broadcas
ter should attempt to notify publishers of television
program listings.
"Special care must of taken with respect to the conte
nt and treatment of audience
advisories so that they d
o not disserve their intended purpose by containing material
that is promotional, sensational or exploitative. Promotional anno
uncements for program
s that include advisories should
be scheduled on a basis consistent with the purpose of
the advisory." N
AB Television Code, 18th ed. (June 1975). The whole NAB Television
Code was eliminated in January 1983. See, Broadcasting, Jan.
24, 1983, at 39.
[118] See, Writers Guild of America West v. FCC, 423
F. Supp. 1064 (C.D. Cal. 1976),
vacated 609 F.2d 355
(9th Cir. 1979), cert. denied, 449 U.S. 824 (1980).
[119] 609 F.2d 355.
[120] 95 F.C.C.2d at 703
[121] Id. at 705.
[122] Id. at 703.
[123
] Sex and Violence on TV, supra note 41, at 168.
[124] Id.
[125] Id.
at 173.
[126] In Re Petition by National Association for Better Broadc
asting, 55 F.C.C.2d 800
(1975), recons., 58 F.C.C.2d 9
66 (1976); In Re Application by Metromedia, Inc., 60
F
.C.C.2d 888 (1976).
[127] In Re Application by Metromedia, Inc., 60 F.C
.C.2d 888, 889 (1976).
[128] In Re Petition by National Association for
Better Broadcasting, 55 F.C.C.2d 800
(1975).
[129]
Id.
[130] 60 F.C.C.2d at 889-890.
[131] Id. at 890.
[132] Id.
[133
] Reed E. Hundt, Speech Before the American Psychological Association's
Annual
Convention (Aug. 15, 1994) in 1994 FCC LEXIS 40
55 at 18.
[134] James H. Quello, Remarks Before the National Religious
Broadcasters Association
(Feb. 1, 1994) in 1994 FCC LE
XIS 462 at 5.
[135] Reed E. Hundt, Speech Before NATPE/INTV Convention
(Jan. 24, 1994) in 1994 FCC
LEXIS 326 at 11.
[136] I
d. at 12. (emphasis added)
[137] 395 U.S. 367 (1969).
[138] 438 U.S.
726 (1978).
[139] Reed E. Hundt, Speech Before NATPE/INTV Convention at
12.
[140] Id. at 12-13.
[141] Id. at 13.
[142] 249 U.S. 47 (1919).
(emphasis added)
[143] Reed E. Hundt, Speech Before NATPE/INTV Convent
ion at 13.
[144] See, Kent R. Middleton & Bill F. Chamberlin, The Law o
f Public Communication 510
(1994).
[145] Ervin S. Duggan, Remarks Bef
ore the ICA Panel on the Public Interest (May 28,
1993
) in 1993 FCC LEXIS 2734 at 8-9.
[146] James H. Quello, Remarks Before
the Wertheim/Variety Seminar (March 23, 1993) in
1993 FCC LEXIS 1346 at
19.
[147] Id.
[148] Gillmor et al., supra note 31, at 842.
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