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   104th Congress 1st            SENATE                 Report
         Session
                                                       104-171
_______________________________________________________________________



                                                       Calendar No. 229



 
       CHILDREN'S PROTECTION FROM VIOLENT PROGRAMMING ACT OF 1995

                               __________

                              R E P O R T

                                 of the

                  COMMITTEE ON COMMERCE, SCIENCE, AND
                             TRANSPORTATION


                             together with


                     ADDITIONAL AND MINORITY VIEWS

                                   on

                                 S. 470




                November 9, 1995.--Ordered to be printed
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                      one hundred fourth congress
                             first session

  LARRY PRESSLER, South Dakota, 
             Chairman
ERNEST F. HOLLINGS, South Carolina   BOB PACKWOOD, Oregon
DANIEL K. INOUYE, Hawaii             TED STEVENS, Alaska
WENDELL H. FORD, Kentucky            JOHN McCAIN, Arizona
J. JAMES EXON, Nebraska              CONRAD BURNS, Montana
JOHN D. ROCKEFELLER IV, West VirginiaSLADE GORTON, Washington
JOHN F. KERRY, Massachusetts         TRENT LOTT, Mississippi
JOHN B. BREAUX, Louisiana            KAY BAILEY HUTCHISON, Texas
RICHARD H. BRYAN, Nevada             OLYMPIA SNOWE, Maine
BYRON L. DORGAN, North Dakota        JOHN ASHCROFT, Missouri
  Patric G. Link, Chief of Staff
Kevin G. Curtin, Democratic Chief 
    Counsel and Staff Director
                                                       Calendar No. 229
104th Congress                                                   Report
                                 SENATE

 1st Session                                                    104-171
_______________________________________________________________________


       CHILDREN'S PROTECTION FROM VIOLENT PROGRAMMING ACT OF 1995
                                _______


                November 9, 1995.--Ordered to be printed

_______________________________________________________________________


      Mr. Pressler, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 470]

    The Committee on Commerce, Science, and Transportation to 
which was referred the bill to amend the Communications Act of 
1934 to prohibit the distribution to the public of violent 
video programming during hours when children are reasonably 
likely to comprise a substantial portion of the audience, 
having considered the same, reports favorably thereon without 
amendment and recommends that the bill joint 
resolution deg. do pass.

                          Purpose of the Bill

    The purpose of the bill is to protect all children, 
supervised and unsupervised, from the harm caused by viewing 
violence on television.

                          Background and Needs

                               I. Summary

    Each year, over 20,000 people are murdered in the U.S.--one 
person is killed every 22 minutes. While France has a murder 
rate of two homicides per 100,000 people; the U.S. has 9.4. The 
U.S. murder rate is four times the rate of Europe and 11 times 
higher than that of Japan. The U.S. homicide rate is rising 6 
times faster than the population. Violence is the second 
leading cause of death for Americans between the ages of 15 and 
24, and is the leading cause of death for African-Americans of 
that age group.
    The growth of violence in our society has prompted Congress 
to look for as many solutions as possible to reduce the extent 
of this problem. Congress first began to examine the link 
between television and violence with hearings in the 1950's. 
Concern arose again in the late 1960's and early 1970's after 
the wave of urban unrest caused some to question the effect of 
television on violent behavior. In 1972, the Surgeon General 
released a study demonstrating a correlation between television 
violence and violent behavior and called for Congressional 
action.
    Each time the issue was raised in Congress, however, the 
industry continually promised to regulate itself while at the 
same time urging against Congressional action. In 1975, Richard 
Wiley, Chairman of the Federal Communications Commission (FCC), 
announced that he had reached an agreement with the 
broadcasters that made Congressional action unnecessary. This 
agreement provided that the television industry would 
voluntarily restrict the showing of violent shows during the 
``family hour.''
    During the 1980's, the amount of violence on television 
increased substantially. One study found up to 32 acts of 
violence on television on children's programming. The increase 
in violence coincides with an increase in the amount of time 
children spend watching television. Children spend, on average, 
28 hours per week watching television, which is more time than 
they spend in school.
    Between 200 and 3000 independent research studies have now 
been conducted that demonstrate a causal link between viewing 
violent programming and aggressive behavior. Several national 
organizations, including the National Institutes for Mental 
Health, the American Psychological Association, and the 
National Parent-Teacher Association, believe that legislation 
is necessary to help parents protect their children and to 
protect unsupervised children from the negative effects of 
television violence.
    S. 470, the ``Children's Protection from Violent 
Programming Act of 1995'', adopts the same approach to 
television violence that the courts recently upheld for 
broadcast ``indecency''. S. 470 prohibits the distribution of 
violent video programming during hours when children are 
reasonably likely to comprise a substantial portion of the 
audience. The provisions apply to broadcast television, cable 
television (except for premium channels or pay-per-view 
programs), and other distribution media such as satellite 
television.
    This ``safe harbor'' is necessary because other approaches 
may not be successful in protecting all children from the 
effects of violent television. Other measures, such as program 
blocking technologies, parental educational efforts, and 
warning labels, may be helpful to children whose parents take 
an active role in supervising the children's television viewing 
habits. Many children, however, are not supervised when 
watching television. The ``safe harbor'' approach is thus the 
least restrictive means that would actually accomplish the goal 
of protecting children from violent programming. The bill thus 
meets the ``strict scrutiny'' test set down by the Supreme 
Court for ``content-based'' regulation.

                  ii. history of congressional concern

    Congress has expressed concern over the amount of violence 
on television for over forty years. Studies conducted in the 
1950s showed that violent crime increased significantly early 
in that decade, and some researchers believed that the spread 
of television was partly to blame. In response, Congress held 
hearings concerning violence in radio and television and its 
impact on children and youth in 1952 and 1954. In 1956, one of 
the first studies of television violence reported that 4-year-
olds who watched the ``Woody Woodpecker'' cartoon were more 
likely to display aggressive behavior than children who watched 
the ``Little Red Hen.'' After the broadcast industry pledged to 
regulate itself, and after the FCC testified against 
censorship, no action was taken.
    The urban riots of the 1960's again raised concern about 
the link between television violence and violent behavior. In 
response to public concern, President Lyndon B. Johnson 
established the National Commission on the Causes and 
Prevention of Violence. The Commission's Mass Media Task Force 
looked at the impact of violence contained in entertainment 
programs aired on television and concluded that (1) television 
violence does have a negative impact on behavior and (2) 
television violence encourages subsequent violent behavior and 
``fosters moral and social values about violence in daily life 
which are unacceptable in a civilized society.'' \1\
    \1\ U.S. National Commission on the Causes and Prevention of 
Violence. To Establish Justice, To Insure Domestic Tranquility. Final 
Report of the National Commission on the Causes and Prevention of 
Violence. Washington, U.S. Govt. Print. Off., December 1969, p. 199.
---------------------------------------------------------------------------
    In 1969, Senator John Pastore, Chairman of the Senate 
Subcommittee on Communications of the Committee on Commerce, 
petitioned the Surgeon General to investigate the effects of TV 
violence. In 1972, Surgeon General Jessie Steinfeld released a 
study \2\ demonstrating a correlation between television 
violence and violent behavior and called for Congressional 
action. The five-volume report concluded that there was a 
causal effect from TV violence, but primarily on children 
presupposed to be aggressive. The then-FCC Chairman, Dean 
Burch, declined to regulate violence, saying that the FCC 
should not ``make fundamental programming judgments.''
    \2\ U.S. Dept. of Health, Education, and Welfare. The Surgeon 
General's Scientific Advisory Committee on Television and Social 
Behavior. Television and Growing Up: The Impact of Televised Violence. 
Report to the Surgeon General. U.S. Public Health Service. Washington, 
U.S. Govt. Print. Off., 1972, p. 279.
---------------------------------------------------------------------------
    Several more hearings were held after the release of the 
Surgeon General's report in the 1970s. Despite studies showing 
an increase in violent programming, little regulatory or 
Congressional action was taken. Discussions continued regarding 
the relationship between violence in society and what was shown 
on television. The continued concerns prompted Congress to 
request the FCC to study possible solutions to the problems of 
television violence and sexually-oriented materials.
    On February 20, 1975, under the direction of then-Chairman 
Wiley, the FCC issued its Report on the Broadcast of Violent 
and Obscene Material. The report recommended statutory 
clarification regarding the Commission's authority to prohibit 
certain broadcasts of obscene and indecent materials. However, 
with regard to the issue of television violence, the FCC did 
not recommend any congressional action because the industry had 
recently adopted a voluntary ``family viewing'' period.\3\ The 
Television Code, however, fell out of use in the 1980s.
    \3\ On February 4, 1975, the National Association of Broadcasters 
(NAB) Television Code Review Board adopted a code implementing a family 
viewing period between 7 to 9 p.m., viewer advisories, and warnings to 
publishers of the advisories.
---------------------------------------------------------------------------
    Since the early 1960s, the Committee has held eighteen 
hearings on the subject of television violence.\4\ Not a single 
piece of legislation was reported out of the Committee.
    \4\ S. Hrng. 91-6 (March 12, 19, and 20, 1969); S. Hrng. 92-32 
(September 28, 1971); S. Hrng. 92-52 (March 21, 22, 23, and 24, 1972); 
S. Hrng. 93-76 (April 3, 4, and 5, 1974); S. Hrng. 94-62 (February 13, 
1976); S. Hrng. 95-60 (May 9, 10 and 11, 1977); S. Hrng. 101-221 (June 
12, 1989); S. Hrng. 103-852 (October 20, 1993); and S. Hrng. 104-- 
(July 11, 1995).
---------------------------------------------------------------------------

                      iii. research on tv violence

    Research has consistently shown a link between viewing 
violence on television and violent behavior. Following the 
Surgeon General's 1972 report, significant research was 
conducted detailing the correlation between viewing violent 
television and later aggressive behavior. Several of the 
leading medical associations published similar conclusions, 
including the American Medical Association, the American 
Psychological Association, the American Pediatric Association, 
and the American Academy of Pediatrics.\5\
    \5\ Centerwall, Brandon S., Television and Violence: The Scale of 
the Problem and Where to Go From Here. JAMA, v. 267, no. 22, June 10, 
1992, p. 3059.
---------------------------------------------------------------------------
    For instance, a study by Tanis Williams supports the 
conclusion that there is a direct correlation between 
television violence and aggressive behavior in children. 
Williams, a researcher at the University of British Columbia, 
studied the impact of television on a small rural community in 
Canada that received television signals for the first time in 
1973. The researchers observed forty-five first and second 
graders for signs of inappropriate aggressive behavior. Two 
years later, the same group was observed and it was found that 
the aggressive behavior in the children increased by 160 
percent as compared to a control group that saw no noticeable 
increase in aggressive behavior.\6\
    \6\ Centerwall, Brandon. Television and Violent Crime, Public 
Interest, No. 111, Spring 1993. p.56.
---------------------------------------------------------------------------
    In 1982, the National Institute of Mental Health (NIMH) 
produced a new report entitled Television and Behavior: Ten 
Years of Scientific Progress and Implications for the Eighties. 
In contrast to the Surgeon General's 1972 report, the NIMH 
concluded that TV violence affects all children, not just those 
predisposed to aggression. The 1982 report reaffirmed the 
conclusions of the earlier studies stating:

          After 10 more years of research, the consensus among 
        most of the research community is that violence on 
        television does lead to aggressive behavior by children 
        and teenagers who watch the programs. This conclusion 
        is based on laboratory experiments and on field 
        studies. Not all children become aggressive, of course, 
        but the correlations between violence and aggression 
        are positive. In magnitude, television violence is as 
        strongly correlated with aggressive behavior as any 
        other behavioral variable that has been measured. The 
        research question has moved from asking whether or not 
        there is an effect to seeking explanations for the 
        effect.\7\
    \7\ The NIMH Report, p. 6.

    Not all research, though, supported this conclusion. In 
1982, NBC sponsored a study of the issue and reported there was 
no correlation. In addition, a 1984 analysis of all the 
available studies by Jonathan L. Freedman, of the Department of 
Psychology at the University of Toronto, concluded that the 
published studies did not support the hypothesis that viewing 
habits of children resulted in subsequent changes in behavior 
in children.\8\
    \8\ An analysis by the Congressional Research Service (CRS) 
questioned the conclusions of these studies. According to CRS, a re-
analysis of the NBC study revealed a direct correlation between viewing 
violence and harmful behavioral changes in children. Television 
Violence: A Survey of Selected Social Science Research Linking Violent 
Program Viewing With Aggression in Children and Society, Report by 
Edith F. Cooper, Congressional Research Service, May 17, 1995, p. 1.
---------------------------------------------------------------------------
    More recent research adds credibility to the findings of 
the NIMH. Two of the most widely publicized empirical studies 
adopt two different methodologies, but arrive at the same 
result. In one of the studies, Dr. Leonard Eron followed a 
group of children in upstate New York State and examined them 
at ages 8, 19 and 30. The study found that the more the 
participants watched TV at age 8, the more serious were the 
crimes of which they were convicted by age 30, the more 
aggressive was their behavior when drinking, and the harsher 
was the punishment which they inflicted on their own children. 
Similar experiments were conducted in Australia, Finland, 
Israel, and Poland, and the outcome was the same in each 
experiment.
    Another study was conducted by Dr. Brandon Centerwall, a 
Professor of Epidemiology at the University of Washington. He 
studied the homicide rates in South Africa, Canada and the 
United States in relation to the introduction of television. In 
all three countries, Dr. Centerwall found that the homicide 
rate doubled about 10 or 15 years after the introduction of 
television. According to Dr. Centerwall, the lag time in each 
country reflects the fact that television exerts its behavior-
modifying effects primarily on children, whereas violent 
activity is primarily an adult activity. Dr. Centerwall 
concludes that ``long-term childhood exposure to television is 
a causal factor behind approximately one-half of the homicides 
committed in the United States.'' This report \9\ concerning 
the harmful impact of viewing television violence on 
preadolescent children found that extensive exposure to 
television violence could lead to chronic effects extending 
into later adolescence and adulthood.
    \9\ Centerwall, p. 3059-3063.
---------------------------------------------------------------------------
    These studies explore the link between violent television 
and violent behavior. However, violent behavior may not be the 
only harm caused by television violence. The American 
Psychological Association believes that the harm caused by 
violent television is broader and includes fearfulness and 
callousness:
          Viewing violence increases fear of becoming a victim 
        of violence, with a resultant increase in self-
        protective behaviors and increased mistrust of others;
          Viewing violence increases desensitization to 
        violence, resulting in calloused attitudes toward 
        violence directed at others and a decreased likelihood 
        to take action on behalf of the victim when violence 
        occurs (behavioral apathy); and
          Viewing violence increases viewers' appetites for 
        becoming involved with violence or exposing themselves 
        to violence.

          iv. anecdotal evidence of the effect of tv violence

    In addition to the research, there are several compelling 
examples of the effects of television on children. In May 1979, 
Johnny Carson used a professional stuntman to ``hang'' Carson 
on stage. After a ``noose'' was placed around Carson's neck, he 
was dropped through a trap door and emerged unharmed. The next 
day, a young boy, Nicholas DeFilippo, was found dead with a 
rope around his neck in front of a TV set tuned to NBC. The 
parents of the child sued NBC for negligence, but lost their 
suit. Twenty-six people died from self-inflicted gunshot wounds 
to the head after watching the Russian Roulette scene in the 
movie ``The Deer Hunter'' when it was shown on national TV.

                      v. the growth of tv violence

    According to several studies, television violence increased 
during the 1980s both during prime-time and during children's 
television hours. Children between the ages of 2 and 11 watch 
television an average of 28 hours per week. According to a 
University of Pennsylvania study, in 1992 a record 32 violent 
acts per hour were recorded during children's shows. The 
American Psychological Association estimates that a typical 
child will watch 8,000 murders and 100,000 acts of violence 
before finishing elementary school.
    A similar story exists for prime-time programming. The 
National Coalition on Television Violence (NCTV), a monitoring 
and advocacy group, found that 25 percent of the prime-time 
shows in the 1992 fall season contained ``very violent'' 
material.
    In August 1994, the Center for Media and Public Affairs 
released the results of a new survey showing an increase in the 
amount of violence on a single day of television in Washington, 
D.C. As it did in 1992, the Center monitored 10 channels of 
programming (six broadcast channels and 4 cable programs) on a 
single day in April. The Center found a 41% increase in 
television violence over the findings of its 1992 study. The 
Center counted 2605 violent scenes in that day, an average of 
almost 15 scenes of violence per channel per hour. Life-
threatening violence increased by 67% and incidents involving 
gun play rose 45%. The Center found that the greatest sources 
of violence on television came from ``promos'' for upcoming 
shows and movies, which were up 69% from 1992. Only toy 
commercials saw a reduction in violence; violence in toy 
commercials dropped 85%.
    Sponsors of these studies believe that there are several 
reasons for this increased TV violence. One cause is the 
increase in ``reality shows'', such as Top Cops, Hard Copy, and 
A Current Affair. These shows describe or provide tape footage 
from actual police activity, including efforts to subdue 
suspects resisting arrest. Another reason is the increase in 
violence shown on the nightly news programs, which may in part 
result from the increase in violent acts in society. A very 
significant factor is the increase in cable programming that 
seeks smaller, niche audiences. According to one study, 3 of 
the top 4 most violent channels were cable channels, while the 
three major network affiliates and the public broadcasting 
affiliate were at the bottom of the list--the 144 music videos 
on MTV included almost as much violence as the three network 
affiliates combined.
    Some believe that the most violent programs are cartoons. 
The inclusion of fantasy or animated characters in the 
compilation of violent programming is controversial. Some 
observers believe that cartoon violence should be distinguished 
from ``real-life'' violence that may glamorize violence. Many 
child psychologists, however, believe that young children are 
especially vulnerable to violent programs because they are 
unable to distinguish between fantasy and reality.
    An example of this problem involved MTV's cartoon, ``Beavis 
and Butthead'', which used to air every day at 7:00 p.m. The 
cartoon is a parody of two young teenagers and their view of 
daily life. The two characters engage in what some observers 
view as irresponsible activity, including cruelty to animals. 
In particular, the show occasionally has the two characters 
suggesting that setting objects on fire is ``cool''. It has 
been alleged that the cartoon's depiction of unsafe fireplay 
led one 5-year old in Ohio to set his family's mobile home on 
fire, causing the death of his 2-year-old sister in 1993. 
Although MTV denies any connection, it has removed all 
references to fire for future episodes, and has rescheduled the 
program to 10:00 p.m.

                vi. response by the television community

    Although the broadcast community now admits that there is 
some link between violent television and violent behavior, the 
broadcasters join with the other sectors of the industry in 
believing that these findings exaggerate the importance of 
television violence. They argue, for instance, that the Eron 
and Centerwall studies contain methodological problems because 
they fail to take into account other factors that may 
contribute to the violent behavior. They argue that income 
level, socioeconomic status, and especially the amount of 
supervision by parents have a greater impact on violent 
behavior than television. One study noted that an increase in 
violent behavior by children also was found after children 
watched Sesame Street, perhaps the most successful educational 
television show. They note that the homicide rate for white 
males in the U.S. and Canada stabilized 15 years after the 
introduction of television and did not increase in the 1980s 
despite the increase in the amount of television violence.

A. Public service announcements

    Other efforts being undertaken include a series of public 
service announcements. For example, in November 1993, NBC 
launched a campaign called ``The More You Know'' focusing on 
teenage violence and conflict resolution.

B. Common television code

    In an effort to address the increase of television violence 
during the 1980s, Congress passed legislation proposed by 
Senator Simon providing the television industry a three-year 
exemption from the antitrust laws to give it an opportunity to 
develop common standards to reduce violent programming. In 
December 1992, three networks (ABC, NBC, and CBS) adopted a 
common set of ``Standards for the Depiction of Violence in 
Television Programs.'' Some observers have criticized these 
efforts because the standards adopted by the networks appear 
weaker than the networks' own standards.

C. Warning labels

    In June 1993, the networks also decided voluntarily to 
place ``warning'' labels before any show which the networks 
believed to contain violent material. The three networks 
committed that, before and during the broadcasting of various 
series, movies, made-for-TV movies, mini-series and specials 
that might contain excessive violence, the following 
announcement would be made: ``Due to some violent content, 
parental discretion is advised.'' The warning label has been 
tested for the past two years. The warning is also included in 
advertising and promotional material for certain programs and 
is offered to newspapers and magazines that print television 
viewing schedules.
    A similar advisory program was adopted by the Independent 
Television Association (INTV--the trade group representing many 
of the 350 television stations not affiliated with one of the 
three networks). All the station members of INTV have adopted 
this voluntary code.

D. Industry monitors and studies

    In January 1994, both broadcast network and cable 
television executives announced that they would hire 
independent monitors to assess the amount of violence on 
television. The cable television industry chose Mediascope, a 
non-profit California-based group, to monitor its programming 
for violent content and provide a report for the public that is 
expected in the spring of 1996. On June 29, 1994, the four 
broadcast networks (ABC, NBC, CBS, and Fox) selected the 
University of California at Los Angeles (UCLA) Communication 
Policy Center to analyze, assess, and report on television 
violence.
    In February 1994, the National Cable Television Association 
(NCTA) adopted an industry policy called ``Voices Against 
Violence.'' The cable industry agreed to reduce and eliminate 
the gratuitous use of violence, implement a parental advisory 
system, and develop, in cooperation with broadcasters, a 
violence ratings system that endorses viewer discretion 
technology.

                    VII. Actions in other countries

    In 1994, the Canadian broadcasters, under pressure from the 
Canadian Government, instituted a new voluntary Code Against 
Violence for television that took effect this year. The code 
bans shows with gratuitous violence and limits those shows that 
include scenes of violence suitable for adults only to the 
hours after 9 p.m. The code places limits on children's shows 
by requiring that violence not be a central theme. Also, it 
stipulates that, in children's programs, violence not be shown 
as a preferred way of solving problems and that the 
consequences of violence be demonstrated. Similar measures have 
also been adopted by the United Kingdom, France, Belgium, New 
Zealand, Australia, and Colombia.

                     VIII. Constitutional analysis

    Some have questioned whether limiting the distribution of 
violent programming to certain hours of the day would be 
consistent with the First Amendment of the Constitution. 
Attorney General Janet Reno responded to some of these 
questions when she testified in October 1993 that the safe 
harbor approach in S. 1383 (the predecessor to S. 470) and the 
other bills before the Committee at that time were 
constitutional.\10\
    \10\ Testimony of Attorney General Janet Reno, Hearing on S. 1383, 
the Children's Protection from Violent Programming Act of 1993, et al., 
before the Senate Committee on Commerce, Science and Transportation, 
October 20, 1993, pp. 30, 42.
---------------------------------------------------------------------------
    There are several exceptions to the First Amendment. 
According to a study by the Congressional Research Service 
(CRS),\11\ the Supreme Court has allowed Government regulation 
of obscenity, child pornography, and speech that creates a 
``clear and present danger''. In addition, CRS notes that the 
courts provide only limited First Amendment protection to 
commercial speech, to defamation, and to speech that can be 
harmful to children. CRS further notes that ``even speech that 
enjoys the most extensive First Amendment protection may be 
restricted on the basis of its content if the restriction 
passes `strict scrutiny' ''.\12\ Finally, CRS notes that the 
courts will allow certain time, place and manner restrictions.
    \11\ ``Freedom of Speech and Press: Exceptions to the First 
Amendment'', Henry Cohen, American Law Division, Congressional Research 
Service, April 7, 1992, Revised July 6, 1993.
    \12\ ``Strict scrutiny'' requires the government to show that the 
restriction serves to promote a compelling Governmental interest and is 
the least restrictive means to further the articulated interest. See, 
Sable Communications of California v. Federal Communications 
Commission, 492 U.S. 115, 126, (1989) (Sable).
---------------------------------------------------------------------------
    While no court has ruled specifically on the 
constitutionality of the approach taken by S. 470, there appear 
to be many lines of decisions that would support the 
constitutionality of the ``safe harbor'' approach to television 
violence. S. 470 could fall within the ambit of the clear and 
present danger exception, the limitations on commercial speech 
and speech harmful to children, the strict scrutiny test, and/
or a regulation of time, place and manner. The following 
discussion focuses on the recent opinion concerning broadcast 
indecency and the ``strict scrutiny'' test as examples of the 
lines of analysis that appear to support the constitutionality 
of the ``safe harbor'' approach. This discussion is not 
exhaustive, and there may well be arguments to justify the 
legislation which do not appear below.

A. Broadcast indecency and the ACT IV case

    A recent Court of Appeals decision upholding the ``safe 
harbor'' for broadcast indecency provides, perhaps, the best 
indication that the courts would uphold the ``safe harbor'' 
approach for television violence.
    In 1992, Congress enacted legislation sponsored by Senator 
Robert Byrd to prohibit the broadcast of indecent programming 
during certain hours of the day. The Byrd amendment allowed 
indecent broadcasts between the hours of midnight and 6 a.m., 
except that public broadcast stations that go off the air at 
midnight or before were permitted to air indecent broadcasts 
between the hours of 10 p.m. and 6 a.m.\13\
    \13\ Congress had already prohibited obscene and indecent 
broadcasts many years earlier. Section 1464 of Title 18 of the U.S. 
Code prohibits the broadcast of any obscene, indecent, or profane 
language by means of radio communication. This section was enacted as 
part of Section 326 of the Communications Act of 1934 and was moved 
into Title 18 in 1948.
---------------------------------------------------------------------------
    On June 30th, 1995, the U.S. Court of Appeals for the 
District of Columbia Circuit, sitting en banc, upheld the 
constitutionality of the Byrd amendment in Action for 
Children's Television, et al. v. FCC.\14\ The court found, in a 
7 to 4 opinion, that the ``safe harbor'' approach, also called 
``channeling'', satisfied the two-part ``strict scrutiny'' 
test.\15\
    \14\ Slip Opinion No. 93-1092 (ACT IV).
    \15\ While the court upheld the ``safe harbor'' approach 
implemented by the Byrd amendment, it found that the different 
treatment of certain public broadcast stations and other stations was 
unjustified. The court thus directed the FCC to modify its rules to 
apply a consistent ``safe harbor'' of 6 a.m. to 10 p.m. for all 
broadcast stations.
---------------------------------------------------------------------------
    The court found that the Government met the first prong of 
the test by establishing that the Government had a ``compelling 
governmental interest'' in protecting children from the harm 
caused by indecency. The court found two compelling 
governmental interests, and left open the possibility of a 
third.\16\ First, the court found that ``the Government has a 
compelling interest in supporting parental supervision of what 
children see and hear on the public airwaves.'' \17\ The court 
cited Ginsberg v. New York, 390 U.S. 629, 638, for the 
proposition that Government has a ``fundamental interest in 
helping parents exercise their `primary responsibility for 
[their] children's well-being' with `laws designed to aid [in 
the] discharge of that responsibility'.'' \18\ Second, the 
court found that ``the Government's own interest in the well-
being of minors provides an independent justification for the 
regulation of broadcast indecency.'' It quoted the Supreme 
Court again in New York v. Ferber, 458 U.S. 747, 756-57 (1982) 
for the proposition that
    \16\ The court found it unnecessary to address the FCC's contention 
that there is also a compelling Governmental interest in protecting the 
home against intrusion by offensive broadcasts. ACT IV, at 13.
    \17\ ACT IV, at 13.
    \18\ ACT IV, at 13.

          * * * State's interest in safeguarding the physical 
        and psychological well-being of a minor is compelling. 
        A democratic society rests, for its continuance, upon 
        the healthy, well-rounded growth of young people into 
        full maturity as citizens. Accordingly, we have 
        sustained legislation aimed at protecting the physical 
        and emotional well-being of youth even when the laws 
        have operated in the sensitive area of constitutionally 
        protected rights.\19\
    \19\ ACT IV, at 13.

    The court found that the legislation met the second prong 
of the test because it uses the ``least restrictive means'' to 
accomplish that governmental interest. Here, the court noted 
that, in choosing the hours during which indecency would be 
banned, the Government must balance the interests of protecting 
children with the interests of adults: ``The question, then, is 
what period will serve the compelling governmental interests 
without unduly infringing on the adult population's right to 
see and hear indecent material.'' \20\
    \20\ ACT IV, at 21.
---------------------------------------------------------------------------
    After reviewing the evidence compiled by the FCC, the court 
upheld the determination that a ban on indecent programming 
during the hours of 6:00 a.m. to 10:00 p.m. satisfied the 
balance and was the least restrictive means. The court noted 
that, to the extent that such a ban affected the rights of 
adults to hear such programming, ``adults have alternative 
means of satisfying their interest in indecent material at 
other hours in ways that pose no risk to minors [such as 
renting videotapes, computer services, audio tapes, etc.].'' 
\21\ The court stated further that, ``Although the restrictions 
burden the rights of many adults, it seems entirely appropriate 
that the marginal convenience of some adults be made to yield 
to the imperative needs of the young.'' \22\
    \21\ ACT IV, at 23.
    \22\ Slip Opinion, at 25.
---------------------------------------------------------------------------
    The reasoning of the court in ACT IV appears to apply 
equally to S. 470. As with indecency, the Government has a 
compelling interest in protecting the moral and psychological 
well-being of children against the harm of viewing television 
violence. Also as with indecency, restricting television 
violence to certain hours of the day balances the rights of 
adults to watch violent programming with the interests of 
protecting children. Adults have other ways of obtaining access 
to violent programming just as they have other ways of 
obtaining indecent materials. Thus, the decision upholding the 
``safe harbor'' for indecency appears to provide strong support 
for finding a ``safe harbor'' for violence to be 
constitutional.

B. The strict scrutiny test

    As noted above, several lines of exceptions and limitations 
to the First Amendment could provide a basis for finding the 
provisions of S. 470 constitutional. One of the most difficult 
of these tests, if not the most difficult, is the strict 
scrutiny test. The following discussion assesses the ``safe 
harbor'' approach under strict scrutiny, not because of the 
certainty that this is the test that will be applied, but 
because, if the ``safe harbor'' approach can pass the strict 
scrutiny test, it could certainly pass any lesser standard of 
review.
    There is good reason to believe that S. 470 would pass the 
``strict scrutiny'' test, and not just because of the 
similarity to the analysis under the ACT IV case. In some 
respects, the constitutionality of a ``safe harbor'' approach 
for violence could be easier to sustain than for indecency. As 
opposed to the indecency issue, Congress has developed a long 
and detailed record to justify the legislation. Congress has 
held hearings to explore various approaches to television 
violence in every decade since the 1950s. This Committee alone 
has held 18 days of hearings over the past three decades on 
this topic, including two hearings specifically on the ``safe 
harbor'' approach. The Committee has laid an extensive 
groundwork for considering the least restrictive means of 
protecting children from violence on television. By contrast, 
the Byrd amendment was adopted on the Senate floor without any 
Committee hearings. Furthermore, as Chief Judge Edwards of the 
D.C. Circuit has acknowledged twice, there is much stronger 
evidence that viewing violence on television causes harm to 
children than any proposed harm caused by indecency.\23\
    \23\ ``There is significant evidence suggesting a causal connection 
between viewing violence on television and antisocial violent behavior 
. . .'' (emphasis in original) ACT IV, Edwards, C.J., dissenting, at 3. 
[Footnotes omitted].
---------------------------------------------------------------------------

                1. The Compelling Governmental Interest

    The Government has several compelling interests in 
protecting children from the harmful effects of viewing 
violence: an interest in protecting children from harm, an 
interest in protecting society in general, an interest in 
helping parents raise their children, and an interest in the 
privacy of the home. Each of these are discussed below.

                          a. Harm to Children

    Government has a compelling interest in protecting children 
from the harm caused by television violence. As several 
witnesses testified, there is little doubt that children's 
viewing of violence on television encourages them to engage in 
violent and anti-social behavior, either as children or later 
as adults. Somewhere between 200 and 3000 independent studies 
demonstrate a causal connection between viewing violence and 
violent behavior.\24\ These studies have included ``field'' 
studies of the effect of television on persons in real life and 
laboratory studies. While the studies concluded in 1972 by the 
NIMH concluded that there was a causal relationship between 
viewing violence and behavior primarily among those children 
predisposed to violence, more recent research demonstrates that 
violent television affects almost all children. Dr. Eron stated 
in his testimony before the Committee as follows:
    \24\ Among these are studies conducted by the American Medical 
Association, the American Psychological Association, the National 
Institute of Mental Health, the Center for Disease Control, and 
numerous studies by individual researchers. The Committee is aware of 
one observer who has called into question the conclusions of these 
studies. See Testimony of Jonathan Freedman, Professor of Psychology, 
Department of Psychology, University of Toronto, Ontario, Canada, 
Hearing on Television Violence before the Senate Committee on Commerce, 
Science, and Transportation, July 12, 1995.

          One of the places violence is learned is on 
        television. Over 35 years of laboratory and real-life 
        studies provide evidence that televised violence is a 
        cause of aggression among children, both 
        contemporaneously, and over time. Television violence 
        affects youngsters of all ages, both genders, all 
        socio-economic levels, and all levels of intelligence. 
        The effect is not limited to children who are already 
        disposed to being aggressive, and it is not restricted 
        to the United States.\25\
    \25\ Oral Testimony of Dr. Leonard Eron on behalf of the American 
Psychological Association, Institute for Social of Michigan before the 
Senate Committee on Commerce, Science and Transportation, 
Communications Subcommittee, July 12, 1995. (Testimony of Dr. Eron).

    While it is perhaps axiomatic that children who become 
violent because of television suffer harm, it is worth noting 
that such children suffer harm in many ways. For example, they 
can become anti-social, distant from others, and unproductive 
members of society, especially if their actions arouse fear in 
other people. They can suffer from imprisonment or other forms 
of criminal punishment if their violence leads to illegal 
behavior.
    Violent behavior may not be the only harm caused by viewing 
violent television. According to the American Psychological 
Association, viewing violence can cause fearfulness, 
desensitization, or an increased appetite for more 
violence.\26\ In other words, as with ``obscenity'' and 
``indecency'', the harm from television violence may result 
simply from viewing violent material, even if no violent 
behavior follows such viewing.
    \26\ See, Testimony of Shirley Igo.
---------------------------------------------------------------------------

                           b. Harm to Society

    A related compelling Governmental interest is the need to 
protect society as a whole from the harmful results of 
television-induced violent behavior. A child who views 
excessive amounts of television violence is not the only person 
who suffers harm. As Dr. Eron testified, children who watch 
excessive amounts of television when they are young are more 
``prone to be convicted for more serious crimes by age 30; more 
aggressive while under the influence of alcohol; and, harsher 
in the punishment they administered to their own children.'' 
\27\
    \27\ Written Testimony of Dr. Eron, p. 2. Dr. Eron further warns 
that ``* * * like secondary smoke effects, * * * don't think that just 
because you have protected your child from the effects of television 
violence that your child is not affected. You and your child might be 
the victims of violence perpetrated by someone who as a youngster, did 
learn the motivation for and the techniques of violence from 
television.'' Written Testimony of Dr. Eron.
---------------------------------------------------------------------------

              c. Helping parents supervise their children

    In addition to the Governmental interests in protecting 
children and society from harm, the courts have also recognized 
a compelling governmental interest in helping parents supervise 
what their children watch on television. In Ginsberg, the 
Supreme Court upheld a New York statute making it illegal to 
sell obscene materials to children. The Court noted that it was 
proper for legislation to help parents exercise their ``primary 
responsibility for [their] children's well-being'' with laws 
designed to aid [in the] discharge of that responsibility.\28\
    \28\ Ginsberg v. New York, 390 U.S. 629,639 (1968).
---------------------------------------------------------------------------

                         d. Privacy of the home

    The Government's interest in protecting the privacy of the 
home from intrusion by violent programming may provide a fourth 
compelling Governmental interest. The Supreme Court has 
recognized that ``in the privacy of the home * * * the 
individual's right to be left alone plainly outweighs the First 
Amendment rights of an intruder''.\29\ The right to privacy in 
one's home was recently used to uphold legislation limiting 
persons from making automated telephone calls to residences and 
small businesses.\30\ Just as subscribers to telephones do not 
give permission to telemarketers to place automated telephone 
calls, the ownership of a television does not give programmers 
permission to broadcast material that is an intrusion into the 
privacy of the home.
    \29\ FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978).
    \30\ See, Moser v. FCC, 46 F. 3d 970 (9th Cir. 1995), cert, denied 
by Supreme Court on June 26, 1995.
---------------------------------------------------------------------------

                     2. The Least Restrictive Means

    Opponents of the legislation argue that the ``safe harbor'' 
approach to television violence is not the least restrictive 
means of accomplishing the goals of reducing the exposure of 
children to television violence. Some in the broadcast 
industry, for instance, argue that the industry should be 
trusted to regulate itself to reduce the amount of violence. 
Parents should bear the primary responsibility for protecting 
their children, according to some observers. Others say that 
the warnings and advisories that many programmers now add to 
certain shows are a lesser restrictive means of protecting 
children. Finally, some believe that parental control 
technologies, such as the so-called ``V-chip'' technology, 
would protect children without imposing as much of a burden on 
the First Amendment rights of the television industry.
    While these ideas may, indeed, be less restrictive than the 
``safe harbor'' approach, they may not accomplish the goal of 
protecting children from violent television. In each case, the 
approaches mentioned above require that parents take an active 
role in supervising the television that their children watch or 
purchase certain technologies. Many children, however, do not 
have the benefit of parents willing and able to engage in these 
functions. According to William Abbott of the Foundation to 
Improve Television, ``millions of children watch television 
unsupervised--\1/4\ of our children have but a single parent 
(the latch-key kids)''.\31\
    \31\ Testimony of William Abbott, President, Foundation to Improve 
Television, before the Committee on Commerce, Science and 
Transportation, Hearing on Television Violence, July 12, 1995.
---------------------------------------------------------------------------
    The problem of unsupervised children is especially acute 
for residents of inner city neighborhoods. According to Gael 
Davis of the National Council of Negro Women, who herself was 
the victim of a random gunshot by an urban youth,

          Violence is the No. 1 cause of death in the African-
        American community. * * * [I]n south central [Los 
        Angeles], * * * [t]he environment is permeated with 
        violence. It is unsafe for children to walk to and from 
        school. We have 80 percent latchkey children, where 
        there will be no parent in the home during the 
        afterschool hours when they are viewing the television. 
        The television has truly become our electronic 
        babysitter.\32\
    \32\ Testimony of Gael T. Davis, President, East Side Section, 
National Council of Negro Women, Hearing on S. 1383, the Children's 
Protection from Violent Programming Act of 1993, et al. before the 
Senate Committee on Commerce, Science and Transportation, October 20, 
1993.

    Even when parents are available and concerned about the 
television programs that their children watch, they may not be 
able to monitor their children's television viewing habits at 
all times. According to a recent survey, 66% of homes have more 
than 3 or more television sets, and 54% of children have a TV 
set in their own bedrooms. Further, 55% of children usually 
watch television alone or with friends, but not with their 
families.\33\
    \33\ Testimony of William Abbott.
---------------------------------------------------------------------------
    The approaches discussed below may be helpful to children 
with parents or supervisors who can take advantage of them, but 
the parents who take advantage of these products and warnings 
are also likely to be the parents who are already taking 
responsibility to monitor the programs that their children 
watch.\34\ Congress cannot forsake the needs of the millions of 
children whose parents will not be able to take an active role 
in supervising the television that they watch.
    \34\ According to Ed Donnerstein, ``* * * it is going to be those 
parents who use the advisories, it is going to be those parents who 
might use the V-chip, it is going to be those parents who sit down with 
their child and discuss violence, who are probably not the parents and 
children we are most concerned about.'' Testimony of Ed Donnerstein, 
Professor, Department of Communications, University of California, 
Hearing on S. 1383, the Children's Protection from Violent Programming 
Act of 1993, et al., before the Senate Committee on Commerce, Science, 
and Transportation, October 20, 1993, p. 84.
---------------------------------------------------------------------------
    According to the ``strict scrutiny'' test, a regulation 
that limits freedom of speech based on the content must use 
``the least restrictive means to further the articulated 
interest.'' \35\ As the following discussion explains, the 
``safe harbor'' approach is the only approach that has a 
significant chance of furthering the compelling governmental 
interest in protecting all children, supervised and 
unsupervised, from the impact of television violence.
    \35\ Sable, at 126.
---------------------------------------------------------------------------

                      a. Industry Self-Regulation

    As discussed earlier, the television industry has been told 
to improve its programming by Congress for over 40 years. The 
first Congressional hearings on television violence were held 
in 1952. Hearings were held in the Senate in 1954 and again in 
the 1960s, the 1970s, and 1980s. At each hearing, 
representatives of the television industry testified that they 
were committed to ensuring that their programming was safe and 
appropriate for children. In 1972, the Surgeon General called 
for Congressional action, but this call was ignored after the 
broadcast industry reached an agreement with the FCC to 
restrict violent programs and programs unsuitable for children 
during the ``family hour''.
    There is substantial evidence, however, that, despite the 
promises of the television industry, the amount of violence on 
television is far greater than the amount of violence in 
society and continues to increase. According to one study, 
``[s]ince 1955, television characters have been murdered at a 
rate one thousand times higher than real-world victims. Indeed, 
television violence has far outstripped reality since the 
1950s.'' \36\ As noted earlier, the American Academy of 
Pediatrics recorded a threefold increase in the amount of 
violence on television during the 1980s. The most recent survey 
of television in one city found a 41% increase in two years.
    \36\ S. Robert Lichter, Linda S. Lichter and Stanley Rothman, Prime 
Time: How TV portrays American Culture (Regnery Publishing, Inc., 
Washington, D.C., 1994), p. 275.
---------------------------------------------------------------------------
    As Shirley Igo noted in her testimony before the Committee 
on behalf of the National Parent-Teachers Association, the 
broadcast networks have drastically reduced the amount of 
educational programming for children:

          * * * it was found that in 1980, the three major 
        networks combined were showing 11 hours of educational 
        shows per week, but by 1990 such programming had 
        diminished to less than two hours per week. Yet, there 
        was more noneducational programming targeted at 
        children than ever before. * * * It is clear to the 
        National PTA and should be clear to members of this 
        Committee that if our collective goal is to reduce 
        violence on television, voluntary efforts by the 
        industry will not get our nation to achieving that 
        goal.\37\
    \37\ Testimony of Shirley Igo, National PTA Vice-President for 
Legislation, before the Senate Committee on Commerce, Science, and 
Transportation, July 12, 1995.

    The incentives of the television industry can be 
illustrated by a quote from a memo giving directions to the 
---------------------------------------------------------------------------
writers of the program ``Man Against Crime'' on CBS in 1953:

          It has been found that we retain audience interest 
        best when our stories are concerned with murder. 
        Therefore, although other crimes may be introduced, 
        somebody must be murdered, preferably early, with the 
        threat of more violence to come.\38\
    \38\ Quoted in Eric Barnouw, The Image Empire: A History of 
Broadcasting in the United States, Vol. III, p. 23.

    The latest attempt to allow the industry to regulate itself 
came in 1990, when Senator Paul Simon authored legislation to 
give the television industry a three-year exemption from the 
antitrust laws to develop a common code to limit television 
violence. In December 1992, the four broadcast networks 
released a common code of conduct that many criticized for 
being weaker than the networks' own code of practices. In any 
case, the code appears to have had little effect on the amount 
of violence on television.

                           b. Warning Labels

    Some observers argue that a requirement to put warnings or 
parental advisories before certain violent programs would be a 
less restrictive means of satisfying the Government's interest 
in protecting children. The Committee has received no evidence, 
however, that such warnings accomplish the purpose of 
protecting children.\39\ Despite the industry's efforts to air 
such advisories on their own initiative over the past two 
years, the National Parent-Teachers Association and the 
Foundation to Improve Television support S. 470 as a more 
effective approach. Indeed, there is some reason to believe 
that advisories may increase the amount of violence on 
television, if the television industry believes that it has 
provided notice to parents to protect itself from criticism. 
Some observers believe that programmers may want a warning 
label to be placed on a program in order to attract 
viewers.\40\
    \39\ The Committee notes that it has received no evidence 
indicating that the warning labels on music records and compact discs 
has reduced the exposure of children to inappropriate lyrics.
    \40\ For example, Ms. Lindsay Wagner, a television actress, 
testified in 1993 that filmmakers sometimes lobby to get an ``R'' 
rating. ``We now have a couple of generations that have been reared on 
violence for fun and many flock to the films with warnings.'' Testimony 
of Ms. Lindsay Wagner, Hearing on S. 1383, the Children's Protection 
from Violent Programming Act of 1993, before the Committee on Commerce 
Science and Transportation, p. 81.
---------------------------------------------------------------------------
    As with the V-chip, discussed below, the warning labels are 
only likely to be effective if parents are willing and able to 
monitor the television programs that their children are 
watching. Without parental supervision, such warning labels may 
have the opposite effect of increasing the appetite of children 
for these shows. Further, it is difficult to believe that such 
warnings would be effective in the age of ``channel surfing''. 
Warnings that appear once at the very beginning of a program 
may not be seen by a viewer who does not see the beginning of a 
program.

                    c. Parental Control Technologies

    Some observers believe that a variety of technologies that 
are now available to television consumers can assist parents in 
controlling the programs that their children watch. The 
Committee received testimony from a number of manufacturers 
during which they demonstrated how these technologies could be 
used. The television industry believes that there is no need 
for government action because parents can purchase technologies 
on the market that will allow them to screen out undesirable 
programs. In addition, the Committee also received testimony in 
favor of mandating that certain of these technologies be placed 
in every television set manufactured after a certain date (the 
so-called V-chip legislation).
    For several reasons, it is not clear that any of these 
approaches will be effective.
    First, each of these alternatives requires that parents 
spend money to purchase either a box, a service, a new 
television set, or software programs to conduct the screening. 
In other words, these alternatives place the burden on the 
parent, rather than on the industry that is generating the 
violent programming. Often, parents either cannot afford or 
choose not to spend the money to purchase these technologies. 
The developer of the Telecommander technology, for instance, 
received a patent for his television screening device in 1978, 
but has not been able to obtain capital to bring the product to 
market, presumably because of the uncertain demand for the 
product.
    For the V-chip approach to be effective, parents would need 
to purchase new television sets with the chip before the 
parents could block out objectionable programs. According to 
the Electronics Industries Association, television sets are 
replaced every 8 to 12 years. For those families that have not 
yet replaced their televisions, and for those that retain old 
televisions even after they purchase a new television set, the 
V-chip may approach may not have much impact.
    Second, there are significant questions about the ability 
of parents to program the technologies effectively. Any such 
technological approach must be easy enough for parents to use, 
but must be difficult enough to prevent the children from 
unblocking the program. In many households, however, the 
children often are more comfortable with the technologies than 
the parents.\41\
    \41\ It is worth noting that one of the witnesses at the July 12 
hearing before the Committee had difficulty operating the technology 
that his company had developed. See, Oral Testimony of Mr. Wayne C. 
Luplow, Vice President, Zenith Electronics Corporation, Hearing on 
Television Violence before the Committee on Commerce, Science and 
Transportation, July 12, 1995.
---------------------------------------------------------------------------
    Third, once again, the use of these technologies depends 
upon the availability of an active and able parent to use the 
technologies. If no parent or supervisor is available, the 
child will not receive the protection from these technologies.
    Fourth, the V-chip legislation already adopted by the 
Senate and House in the comprehensive telecommunications bills 
passed by each body (S. 652 and H.R. 1555) would not require 
programmers to encode each signal. Without such a requirement, 
however, it is uncertain whether programmers would rate the 
programs voluntarily and, if not, whether the legislation would 
be effective.
    Finally, if legislation required broadcasters to encode 
their signals, it might not be the least restrictive means. The 
burden of rating every single program and including an encoded 
signal could be extensive. The burden would be especially 
onerous if the coding requirement were imposed on all programs, 
new and old.
    The ``safe harbor'' approach, by comparison, would not 
require the programmers to rate each and every program, but 
would simply rely upon a complaint process at the FCC to 
determine whether, after a program was televised, the program 
violated the FCC's definition of violence.
    In summary, none of the alternatives considered by the 
Committee would appear to be effective in protecting both 
supervised and unsupervised children from the harm caused by 
television violence. They all depend upon the active 
participation of parents or adults. Even when such adults are 
willing to implement screening devices, it is not certain that 
they will purchase the products required or that they will know 
how to program the television to block out the programs. 
Similarly, the V-chip requirement may be helpful to parents who 
purchase television sets with the technology and who know how 
to program the set if the television industry encodes their 
programs with the appropriate electronic signal. Such a 
requirement is likely to be more burdensome than the ``safe 
harbor'' approach, however. Thus, the ``safe harbor'' approach 
is likely to meet ``least restrictive means'' prong of the 
``strict scrutiny'' test.

C. Additional issues

            1. Definition of violence
    Some have raised questions about the definition of violence 
in S. 470. Some have criticized the legislation for failing to 
include a definition; others state that it is inherently 
impossible to craft a definition that would not be 
``overbroad'' or ``vague'' in violation of the constitutional 
requirements set down by the Supreme Court.
    S. 470 adopts the same approach toward ``violent video 
programming'' as Congress has previously adopted for 
``indecency''. Section 1464 of Title 18 prohibits the broadcast 
of indecency but does not contain a definition of the term. In 
1975, the FCC adopted a definition of indecency that the courts 
have found to be proper. While it may be difficult to craft a 
definition that reflects the context of violence, that is not 
overbroad, that is not vague, and that is consistent with the 
research of harm caused to children, these are exactly the 
tasks that the FCC was created to perform. The FCC can hold its 
own hearings, seek comment from the industry and the public, 
review the research in detail in order to come up with a 
definition.
    Some observers cite the case of Video Software Dealers 
Association v. Webster to support the position that legislation 
to restrict violent video is unconstitutional. That case, 
however, concerned a statute that neither contained a 
definition of violence nor delegated the definition to a 
regulatory agency. S. 470, by contrast, does not take effect 
until the FCC issues a definition of violence. In Davis-Kidd 
Books v. McWherter, the court overturned a statute that 
contained a definition of violence that was overly vague. While 
this case demonstrates the difficulty of defining violence, it 
does not stand for the proposition that violence is incapable 
of being defined. If the FCC fails to come up with a definition 
of violent video programming that satisfies constitutional 
scrutiny, the legislation authorizes the FCC to try again until 
it does.
            2. Applicability to cable television and other broadcast 
                    technologies
    Other observers question the constitutionality of 
restricting violence on cable television and other distribution 
media in addition to broadcasting. These commenters believe 
that the courts have never extended controls on content beyond 
television broadcasters. The note that Red Lion, Pacifica, and 
the line of ACT cases pertained only to broadcasting, not to 
cable or any other form of media.
    There are several responses to this argument. First, the 
``strict scrutiny'' test applies to any content regulation, not 
just those imposed on broadcast stations. The Supreme Court 
has, for instance, applied the ``strict scrutiny'' test to 
telephone communications \42\ and to newspapers.\43\ These 
cases indicate that a restriction on violent video programming 
could, potentially, be imposed on any media if it satisfies the 
``strict scrutiny'' test.\44\
    \42\ Sable Communications of California, Inc. v. FCC, 492 U.S. 115 
(1989).
    \43\ Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
    \44\ The court in ACT IV states, ``[W]e apply strict scrutiny to 
regulations of this kind [concerning indecency] regardless of the 
medium affected by them * * *''. ACT IV, at 12.
---------------------------------------------------------------------------
    Second, the characteristics of non-premium cable service 
and other video distribution media are virtually identical to 
broadcasting. Admittedly, the Supreme Court has indicated that 
broadcasting has received more limited First Amendment 
protection than other media. Even the ACT IV decision states 
that ``radio and television broadcasts may properly be subject 
to different--and often more restrictive--regulation than is 
permissible for other media under the First Amendment.'' \45\
    \45\ ACT IV, at 12.
---------------------------------------------------------------------------
    The rationale given by the courts for subjecting 
broadcasting to a more restrictive treatment, however, applies 
equally to non-premium cable service and other multi-channel 
video programmers. The ACT IV court noted that the Supreme 
Court has identified two reasons for treating broadcasting 
differently:

          First, the broadcast media have established a 
        uniquely pervasive presence in the lives of all 
        Americans. Patently offensive, indecent material 
        presented over the airwaves confronts the citizen, not 
        only in public, but also in the privacy of the home, * 
        * * Second, broadcasting is uniquely accessible to 
        children. * * * The ease with which children may obtain 
        access to broadcast material, * * * amply justifies 
        special treatment of indecent broadcasting.\46\
    \46\ Pacifica, at 748-750.

    The ACT IV court further noted that ``broadcast audiences 
have no choice but to ``subscribe'' to the entire output of 
traditional broadcasters.'' \47\
    \47\ ACT IV, at 12.
---------------------------------------------------------------------------
    Just as with broadcast television, non-premium cable 
service has grown to have a uniquely pervasive presence in the 
lives of all Americans and is uniquely accessible to children. 
Over 60% of consumers now receive some form of cable service. 
Because of the ``must carry'' rules, almost all of these 
subscribers now receive their broadcast signals through their 
cable systems. From the perspective of the viewer, and 
especially children, there is little if any distinction between 
the broadcast programs that come in over the cable system and 
the cable-only programs. Indeed, cable television service has 
become so important a service to the average American that 
Congress has required the rates for cable television to be 
regulated.\48\ Even the ACT VI court hints at the similarity 
between cable television and broadcasting when it states that 
cable ``is not immune to the concerns we address today 
[concerning indecency].'' \49\ In fact, Chief Judge Edwards, 
writing in dissent, criticizes the majority opinion for 
upholding the restriction on indecency even though it applies 
only to broadcasting and not to cable.\50\
    \48\ See, the Cable Television Consumer Protection and Competition 
Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (The 1992 Cable Act).
    \49\ ACT IV, at 11.
    \50\ ``I find it incomprehensible that the majority can * * * be 
blind to the utterly irrational distinction that Congress has created 
between broadcast and cable operators.'' ACT IV, C.J. dissenting, at 4.
---------------------------------------------------------------------------
    S. 470, however, exempts premium or pay-per-view channels 
in recognition of the fact that parents have the choice to 
subscribe to these channels on an individual basis. This 
distinction between premium channels and pay-per-view programs, 
on the one hand, and basic or expanded basic packages of cable 
programs, on the other, demonstrates the Committee's attempt to 
balance the rights of children and the legitimate rights of 
parents to watch the programs that they want to watch. In this 
way, the legislation avoids unnecessarily interfering with 
parents' First Amendment rights in order to meet the least 
restrictive means test.

                          Legislative History

    In October 1993, the Senate Commerce Committee held a 
hearing on television violence to consider a variety of 
legislative proposals. Attorney General Janet Reno testified 
that the legislation currently pending before the Committee, 
including S. 1383, the Hollings-Inouye legislation establishing 
a ``safe harbor'' for violent programming, would be 
constitutional. The broadcast networks and other industry 
representatives argued that the amount of violent programming 
was less than in previous years. The industry also testified 
that the industry should be given more time to implement its 
warning labels before legislation should be considered.
    S. 470 was introduced on February 23, 1995, by Senator 
Hollings and cosponsored by Senators Inouye and Thurmond. On 
July 11, 1995, the Committee held its second hearing on 
television violence to consider pending measures, including S. 
470. S. 470 (104th Congress) is identical to S. 1383 (103rd 
Congress). In open executive session on August 10, 1995, the 
Committee ordered reported S. 470 without amendment, by a 
rollcall vote of 16 yeas and 1 nay, with two Senators not 
voting.

                            Estimated Costs

    In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 27, 1995.
Hon. Larry Pressler,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 470, the Children's Protection from Violent 
Programming Act of 1995, as ordered reported by the Senate 
Committee on Commerce, Science, and Transportation on August 
10, 1995. CBO estimates that implementing S. 470 would cost the 
federal government about $3 million over the next five years, 
assuming appropriations of the necessary amounts. Because 
enactment of S. 470 would not affect direct spending or 
receipts, pay-as-you-go procedures would not apply to the bill. 
S. 470 also would not affect the budgets of state or local 
governments.
    S. 470 would prohibit the distribution of violent 
programming on broadcast and cable television during the hours 
of the day when children are likely to comprise a substantial 
portion of the viewing audience. The bill would instruct the 
Federal Communications Commission (FCC) to conduct a rulemaking 
in order to define violent programming and determine the hours 
of the day which violent programming would be prohibited. It 
would require the FCC to repeal the license of any person who 
repeatedly violates the regulations and would instruct the FCC 
to consider compliance with the regulations in its review of an 
application for renewal of a license. The enforcement 
provisions would apply to broadcast television only since cable 
television operators are not licensed.
    Based on information from the FCC, CBO estimates that 
promulgating the rules required by the bill would result in 
increased costs to the federal government of approximately 
$300,000 in 1996, primarily for personnel costs, assuming 
appropriation of the necessary amounts. CBO expects that the 
FCC would receive a number of complaints regarding violations 
of the commission's rules concerning the distribution of 
violent programming. In addition, the FCC would incur a small 
additional cost to review applications for renewal of licenses. 
We estimate that the costs to the FCC to both monitor the 
complaints and review compliance with the regulations would 
cost about $800,000 in fiscal year 1997 and slightly less in 
subsequent years, assuming appropriation of the necessary 
amounts.
    If you wish any further details on this estimate, we will 
be pleased to provide them. The CBO staff contact is Rachel W. 
Forward.
            Sincerely,
                                         June E. O'Neill, Director.

                      Regulatory Impact Statement

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported.
    The primary impact of this legislation will be on the 
television networks, broadcast stations, and cable programmers 
insofar as they must determine when to air certain kinds of 
programming. The economic impact on the broadcasters and cable 
programmers is likely to be negligible at worst and could be 
positive. The networks and broadcast stations already have 
standards and practices departments that review all programs 
for their content. The legislation would simply require these 
reviewers to add an analysis of the violent content of programs 
to the analyses that they currently conduct. To the extent that 
broadcast and cable programs contain less violence, they are 
more likely to attract additional viewers, especially younger 
children and parents, which will enable the broadcasters and 
cable programmers to sell more advertising time, thus 
increasing the potential revenues of the industry.
    There will be no impact on personal privacy as a result of 
this legislation.
    The paperwork resulting from this legislation will be 
primarily due to the initial proceeding to define violent 
programming and determine the hours of the day during which 
violent programming would be prohibited.

                      Section-by-Section Analysis

                         Section 1. Short title

    This section states the short title of the bill as the 
Children's Protection from Violent Programming Act of 1995.

                          Section 2. Findings

    Section 2 of the bill states Congressional findings.

        Section 3. Unlawful distribution of violent programming

    Section 3 adds a new section 714 to the Communications Act 
of 1934 that makes it unlawful for any person to--
          (1) distribute to the public any violent video 
        programming during hours when children are reasonably 
        likely to comprise a substantial portion of the 
        audience; or
          (2) knowingly produce or provide material for such 
        distribution.
    To implement this prohibition, new section 714(b) requires 
that the FCC conduct a rulemaking proceeding, to conclude with 
the issuance of final regulations not later than 9 months after 
enactment. As part of the proceeding, the FCC is required to 
exempt premium and pay-per-view cable programming and is 
authorized to exempt programming (including news programs, 
documentaries, educational programs, and sporting events) whose 
distribution does not conflict with the objective of protecting 
children from the negative influences of violent programming. 
Further, the FCC is required to define the terms ``hours when 
children are reasonably likely to comprise a substantial 
portion of the audience'' and ``violent video programming.''
    New section 714(c) provides for the FCC, after notice and 
opportunity for hearing, to immediately repeal any license 
issued to a person who repeatedly violates new section 714 or 
its implementing regulations.
    New section 714(d) requires that the FCC, in reviewing an 
application to renew a license issued under the Communications 
Act of 1934, consider whether the licensee has complied with 
new section 714 and its implementing regulations.
    New section 714(e) defines the term ``distribute.''

                       Section 4. Effective date

    Section 4 states that the prohibition contained in new 
section 714 and its implementing regulations shall be effective 
one year after the enactment of the bill.

                      Rollcall Votes in Committee

    In accordance with paragraph 7(c) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following description of the record votes during its 
consideration of S. 470:
    At the close of debate on S. 470, the Chairman announced a 
rollcall vote on the bill. On a rollcall vote of 16 yeas and 1 
nay as follows, the bill was ordered reported:

        YEAS--16                      NAYS--1
Mr. Pressler                        Mr. McCain \1\
Mr. Stevens \1\
Mr. Gorton
Mr. Lott
Mrs. Hutchison
Ms. Snowe
Mr. Ashcroft
Mr. Hollings
Mr. Inouye \1\
Mr. Ford
Mr. Exon \1\
Mr. Rockefeller
Mr. Kerry \1\
Mr. Breaux
Mr. Bryan
Mr. Dorgan
Mr. Pressler

    \1\ By proxy
                  ADDITIONAL VIEWS OF SENATOR PRESSLER

    S. 470 would ban the broadcast of ``violent video 
programming during hours when children are reasonably likely to 
comprise a substantial portion of the audience.'' While this 
proposal is certainly well-intentioned, it presents many 
constitutional and policy issues of serious concern.
    I never have, do not, and will never condone the gratuitous 
depiction of violence on television. But I feel equally 
strongly that decisions about which television programs a child 
should watch should be made by parents, not government. To the 
extent there is a demand for technology to assist parents in 
implementing viewing decisions, the market will respond to fill 
that need. Indeed, this already is happening.
    As we saw demonstrated at the Committee's hearing on this 
topic, the free marketplace is spawning technology--not 
dependent on government intervention--that empowers parents to 
control what their children see on television. Before we do 
violence to the First Amendment, Congress should let the 
marketplace, responding to parents demands, develop solutions 
to the television violence issue.

                          constitutional flaws

    The Supreme Court has held repeatedly that statutes must 
define the speech subject to regulation with precision and 
encompass no more speech than is necessary to advance 
compelling governmental interests. S. 470 does not appear to 
satisfy this clear constitutional requirement. Nor does it seem 
this constitutional flaw be cured by adding a definition. Even 
if S. 470 were amended to add a definition of ``violent video 
programming,'' it would remain subject to attack 
unconstitutionally vague and over broad.
    Under Supreme Court precedent, violent expression is 
subject to government regulation only in the most limited 
circumstances--where the speech is intended and likely to 
incite immediate violence. No record supports the premise that 
exposure to any violent video programming causes immediate 
undesirable imitative behavior by typical viewers.
    As the Seventh Circuit recognized in the 1985 Hudnut case, 
``violence on television * * * is protected as speech, however 
insidious. Any other answer leaves government in control of * * 
* the institutions of culture, the great censor and director of 
which thoughts are good for us.'' This decision was affirmed by 
memorandum by the Supreme Court. American Booksellers Ass'n v. 
Hudnut, 771 F. 2d 323, 330 (7th Cir. 1985), aff'd mem., 475 
U.S. 1001 (1986).
    Another constitutional question is raised by S. 470's 
attempt to distinguish between ``good'' and ``bad'' violence by 
authorizing the Federal Communications Commission (FCC) to 
exempt news programs, documentaries, educational programs and 
sporting events. The Supreme Court has not found the First 
Amendment to distinguish between movies, sitcoms and talk shows 
on the one hand, and news programs, documentaries and sporting 
events on the other--all receive the same constitutional 
protection. For half a century, the Court has noted that the 
``line between the informing and the entertaining is too 
elusive'' to constitute a constitutionally cognizable 
distinction. By singling out certain categories of programming 
for differential treatment, the bill could be found to promote 
a form of content discrimination that violates the First 
Amendment. In addition to the overbreadth and vagueness 
problems of the definition of violent video programming, the 
outright ban itself on such programming, during hours in which 
the FCC determines ``children are reasonably likely to comprise 
a substantial majority of the audience,'' also could be found 
to be over broad. In an attempt to protect children from access 
to violent programming, S. 470 would deny all Americans, young 
and old alike, from viewing certain programming during prime 
time hours--the most popular viewing hours. This ban would 
needlessly affect the two-thirds of American households with no 
children. To borrow a phrase used by the Supreme Court in an 
overbreadth case, this could be viewed by the Court as 
``burning down the house to roast a pig.''
    I am also concerned about the chilling effect a ``safe 
harbor'' will have on broadcasters, since the First Amendment 
protects against inhibition and subtle interference with speech 
rights. Broadcasters who violate the terms of this legislation 
face draconian penalties. S. 470 empowers the FCC to repeal the 
station license of any person who repeatedly violates the Act. 
Furthermore, the FCC is directed to examine a station station's 
compliance with the Act when considering a license renewal 
application.
    Serious concerns are raised by the fact that a violator 
will not know of its transgressions until after broadcasts have 
occurred, when it is then ruled that certain programming shown 
during restricted hours was violent. With the prospect of 
literally being driven off the air, broadcasters will be much 
more likely to steer well on the safe side of airing only 
programs they can be assured will not later be deemed violent. 
Serious dramas dealing with real issues, as well as some 
slapstick comedy, could be banished to the graveyard shift 
along with gratuitous violent fare. S. 470 could chill, if not 
freeze, broadcasters' First Amendment rights to make 
programming decisions.

      parental control technology: a less restrictive alternative

    S. 470 asserts that ``(r)estricting the hours when violent 
video programming is shown is the least restrictive and most 
narrowly tailored means to achieve that compelling governmental 
interest. While the bill thus acknowledges the proper First 
Amendment standard, there is serious question as to whether it 
satisfies that standard.
    I do not quarrel with S. 470's goal of ``limiting the 
negative influences of violent video programming on children.'' 
I simply question the premise that the imposition of government 
regulation is the least restrictive means to further that 
interest.
    Less speech-restrictive alternatives to S. 470's ``safe 
harbor'' hours seem quite viable. As exhibited during the 
hearing on this legislation, there is strong evidence the 
marketplace is responding with concrete solutions to empower 
parents with technology that is not dependent upon governmental 
intervention to limit their children's exposure to programming 
they deem harmful. These devices empower parents to control 
what their children watch, how much they watch, and when they 
watch it.
    According to the Electronic Industries Association, there 
are some 200 models of televisions, available today, that are 
equipped with on-screen programming devices to block channels 
for a specified amount of time, with security assured by 
personal identification numbers known only to the parents. 
Other manufacturers have developed set-top devices that work 
with existing televisions to provide similar parental control 
features. (Of course, parents who subscribe to cable have for 
years been able to block channels at their cable box, either 
electronically or mechanically with a key.)
    I was impressed with testimony from innovative 
manufacturers who soon will bring to the market even more 
sophisticated technology, and I also am very encouraged by the 
recent commitment of the four major networks to set up a $2 
million fund to spur further development of parental control 
technology.
    The plethora of information available about the content of 
television programming allows parents to utilize this 
technology to easily and effectively control what their 
children watch at home. Since 1993, broadcasters have increased 
the use of advisories for programming with violent content. 
These advisories, which are also provided to newspapers and 
television guides, enable parents to make viewing decisions for 
their children based on their own notions of child rearing, 
either by shutting off the TV or programming parental control 
devices. Moreover, a great number of independent sources 
provide information allowing parents to make choices 
appropriate for their family. For example, ratings, advice and 
reviews of programming are available from the American Family 
Association, Focus on the Family, Parents' Choice, KIDSNET, the 
Media Research Center and TV Guide. This variety of sources of 
information seems clearly preferable to an FCC-defined 
definition of ``violent'' programming, and certainly is a less 
restrictive alternative to a government-mandated ban on violent 
programming.
    Additionally, the broadcast and cable industries have 
commissioned independent studies of their programming, the 
findings of which should be available beginning this fall. I 
also note the television industry has sponsored community-
based, anti-violence programming, which can help children 
unlearn ``violent'' behavior.
    Clearly, these ongoing and accelerating efforts--by 
manufacturers, broadcasters, independent groups and parents 
alike--have thrived in an environment devoid of any 
governmental mandate. Indeed, such interference may inhibit 
both the development of improved technology and the 
dissemination of more information about the content of 
programming from independent sources from which parents 
themselves can select. These efforts offer a less restrictive 
alternative to a broadcast ban. They address the TV violence 
issue head-on without fear of transgressing the First Amendment 
of the U.S. Constitution.

               A ``Safe Harbor'' Will Be of Limited Value

    I also have questions about the effectiveness of S. 470's 
broadcast ban in reducing children's exposure to programming 
their parents deem harmful.
    First, despite this legislation, children in the majority 
of households that subscribe to cable television will have no 
problem accessing violent programming during the hours in which 
over-the-air broadcasters are banned from airing such 
programming. All children need to do is turn to a premium cable 
channel or order pay-per-view programming.
    Second, constitutional issues aside, I foresee many 
problems resulting from assigning to the FCC the responsibility 
to define ``violent video programming.'' If experts, 
politicians and parents cannot agree on a definition of 
``violent'' programming, why should we assume the FCC will 
succeed? Would a ``Tweety Bird'' cartoon be deemed ``violent''? 
What about slapstick humor of the ``Three Stooges''? What about 
a western or a war movie, where killing undoubtedly will occur?
    Third, if history is any guide, the FCC's record of 
arbitrary and uneven enforcement of its ``indecency'' authority 
indicates the FCC would be incapable of supplying an 
ascertainable standard for the even more difficult to define 
concept of ``violent video programming.'' This uncertainty will 
undermine further the constitutionality of S. 470 and embroil 
the FCC in litigation.
    This Committee has witnessed firsthand the difficulty of 
deciding what constitutes violent programming, and what does 
not. In 1993 we viewed an episode of the television program 
``Love and War.'' While some of us viewed it as a parody of 
violence and pure slapstick, it was shown for the purpose of 
providing a snapshot example of current violent programming. 
Ironically, at this year's hearing on S. 470, the Committee 
heard testimony that listed ``Love and War'' as among the least 
violent programs in a Concordia College study that took a 
snapshot look at a week's worth of television programming. 
Further illustrating the clumsy manner in which programs are 
labeled, that same study placed the Helen Keller movie, ``The 
Miracle Worker'' on par with MTV's ``Beavis and Butthead.''
    The heart of the matter is that parents, not the government 
are best equipped to decide what their children may watch and 
when they may watch it. Would most parents share the 
legislation's assumption that heavyweight boxing is acceptable 
programming for their children, but a movie such as 
``Schindler's List'' is not? S. 470 actually interferes with 
parenting by removing viewing options from parents, who 
rightfully should be the ones to decide what their children 
should watch.

                               Conclusion

    S. 470 needlessly threatens the First Amendment, and 
involves government in an area that should be reserved for 
parents. The marketplace--properly accountable to parents who 
are assuming more responsibility for monitoring the programming 
their children watch--is developing solutions that work. 
Congress should continue to urge the broadcast and cable 
industries to act responsibly with respect to program 
selection, but we should leave to parents the responsibility 
for determining what is appropriate family viewing.
             MINORITY VIEWS OF SENATORS McCAIN AND PACKWOOD

    Violence on television is a problem. We commend 
broadcasters for voluntarily airing parental advisories before 
and during violent programs and for voluntarily reducing the 
amount of violent programming they carry. Nevertheless, it is 
not yet clear whether these voluntary efforts are having a 
substantial impact. It is therefore appropriate for the 
Committee to ask: ``What is the most appropriate action for 
Congress to take, and what will result in the most success?'' 
When asked both questions, S. 470 unfortunately fails.
    S. 470 is well-intentioned, but we fear it will create more 
problems than it will solve. Congress has resisted the 
temptation to legislate in this area in the past because it is 
inherently difficult to do so in a manner that does not raise 
legitimate issues of censorship, vagueness and over-breaaaadth, 
and that won't have a chilling effect on free expression.
    S. 470 would empower politically-appointed bureaucrats at 
the Federal Communications Commission to decide for the rest of 
us when a program is ``violent.'' And it would prohibit the 
broadcast of violent programs at any time of day or night when 
the FCC determines that children are reasonably likely to 
comprise a substantial portion of the viewing audience. The 
legislation assumes that unelected FCC bureaucrats know best. 
The fact is that under this bill, the FCC would become the 
almighty arbiter of what is or is not violent programming. This 
is a dangerous scheme, and it raises precisely the type of 
danger the First Amendment was designed to prevent.
    The First Amendment requires that restrictions on free 
speech must be the least restrictive and the most narrowly 
tailored means to achieve a compelling governmental objective. 
S. 470 clearly fails the first prong of this test in light of 
emerging technology which will allow parents to block 
objectionable programs.
    The legislation contains other constitutional problems as 
well.
    First, the courts have repeatedly warned Congress that it 
must define the speech it wants to regulate with precision in 
order to encompass no more speech than is necessary. It won't 
be easy to define the term ``violent video programming,'' and 
S. 470 doesn't even attempt to do so. For example, some people 
would consider Star Wars violent, while others would consider 
Star Wars family entertainment. The bill leaves it to the FCC 
to define what the term ``violent video programming'' means. 
Given the FCC's difficulty in crafting a consistent and 
workable definition of ``indecency,'' we seriously question 
whether it can define the term ``violent'' and wonder how much 
litigation their effort will spawn.
    Second, the bill authorizes the FCC to single out certain 
categories of programming for differential treatment. The FCC 
would be allowed to exempt news programs, documentaries, 
educational programming, and sporting events. The first 
Amendment clearly forbids discrimination on the basis of 
content, and we question whether this provision of the bill 
will survive judicial scrutiny.
    Further, what may be an educational program or a 
documentary to one individual may be entertainment to another. 
The bill offers no clue into which category films such as Gone 
With the Wind and Schindler's List would fall. We do not 
believe that politically-appointed bureaucrats should decide 
what is entertainment and thus cannot be shown on TV and what 
is educational and thus would be legal to show. Passage of this 
bill would produce an endless stream of questions and court 
cases asking what is a news program, what is a documentary, and 
what is educational programming and what qualifies as 
legitimate sport.
    We suspect this bill would be overturned by the courts and 
all of our efforts will have been for nothing. We need to 
reconsider this measure and look instead at other approaches 
which will reduce television violence and not violate the First 
Amendment.
    One such approach favored by many would be for broadcasters 
to educate parents as to what is on television and for 
television manufacturers to give parents more of an ability to 
stop their children from watching the programming that they, as 
parents, deem to be violent. This approach would empower 
parents by giving them the knowledge they need and an enhanced 
ability to act on that knowledge.
    Due to our concerns about constitutionality and our fear 
that a politically-motivated FCC staff will be deciding what 
airs on television and what does not, we cannot support this 
measure.
                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changed in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
material is printed in italic, existing law in which no change 
is proposed is shown in roman):

                       communications act of 1934

SEC. 714. UNLAWFUL DISTRIBUTION OF VIOLENT PROGRAMMING.

    (a) Unlawful Distribution.--It shall be unlawful for any 
person to--
          (1) distribute to the public any violent video 
        programming during hours when children are reasonably 
        likely to comprise a substantial portion of the 
        audience; or
          (2) knowingly produce or provide material for such 
        distribution.
    (b) Rulemaking Proceeding.--The Commission shall conduct a 
rulemaking proceeding to implement the provisions of this 
section and shall promulgate final regulations pursuant to that 
proceeding not later than 9 months after the date of enactment 
of the Children's Protection from Violent Programming Act of 
1995. As part of that proceeding, the Commission--
          (1) may exempt from the prohibition under subsection 
        (a) programming (including news programs, 
        documentaries, educational programs, and sporting 
        events) whose distribution does not conflict with the 
        objective of protecting children from the negative 
        influences of violent video programming, as that 
        objective is reflected in the findings in section 2 of 
        the Children's Protection from Violent Programming Act 
        of 1995;
          (2) shall exempt premium and pay-per-view cable 
        programming; and
          (3) shall define the term ``hours when children are 
        reasonably likely to comprise a substantial portion of 
        the audience'' and the term ``violent video 
        programming''.
    (c) Repeat Violations.--If a person repeatedly violates 
this section or any regulation promulgated under this section, 
the Commission shall, after notice and opportunity for hearing, 
immediately repeal any license issued to that person under this 
Act.
    (d) Consideration Of Violations In License Renewals.--The 
Commission shall consider, among the elements in its review of 
an application for renewal of a license under this Act, whether 
the licensee has complied with this section and the regulations 
promulgated under this section.
    (e) Definition.--As used in this section, the term 
``distribute'' means to send, transmit, retransmit, telecast, 
broadcast, or cablecast, including by wire, microwave, or 
satellite.