The V-Chip, Television Program Ratings, and the Tv Parental Guidelines Oversig

18 COMM.L.&POL’Y 265–307 (2013) Copyright © Taylor & Francis Group, LLC ISSN: 1081-1680 print / 1532-6926 online DOI: 10.1080/10811680.2013.797303 TELEVISION VIOLENCE AND INDUSTRY SELF-REGULATION:THE V-C HIP, TELEVISION PROGRAM RATINGS, AND THE TV PARENTAL GUIDELINES OVERSIGHT MONITORING BOARD ∗ JOEL TIMMER In 1997, the television industry created the TV Parental Guidelines, the program rating system that works in conjunction with the V-chip. To help gain the Federal Communications Commission’s approval of the system, the industry also created the Oversight Monitoring Board, which it pledged would engage in a range of activities to ensure the accuracy and consistency of television program ratings. This article examines the operation and effectiveness of the board and the television program rating system as a form of industry self-regulation and provides suggestions for increasing the effectiveness of both the board and the rating system. Congress has long been concerned about television violence and its ef- fect on viewers, particularly children.1 Despite this concern, however, Congress has passed few laws to regulate television violence.2 This is ∗Associate Professor, Department of Film, Television and Digital Media, Texas Chris- tian University. 1One of the most comprehensive discussions of congressional activity in regards to television violence from the 1950s to the early 1980s is WILLARD D. ROWLAND JR., THE POLITICS OF TV VIOLENCE:POLICY USES OF COMMUNICATIONS RESEARCH (1983). See also DOUGLASS CATER &STEPHEN STRICKLAND,TVVIOLENCE AND THE CHILD:THE EVOLUTION AND FATE OF THE SURGEON GENERAL’S REPORT (1975); CYNTHIA A. COOPER, VIOLENCE ON TELEVISION:CONGRESSIONAL INQUIRY,PUBLIC CRITICISM AND INDUSTRY RESPONSE:APOLICY ANALYSIS (1996); James F. Short Jr., The National Commission on the Causes and Prevention of Violence, in SOCIOLOGY AND PUBLIC POLICY:THE CASE OF PRESIDENTIAL COMMISSIONS 66 (Mirra Komarovsky ed., 1975); Joel Timmer, Incremen- talism and Policymaking on Television Violence,9COMM.L.&POL’Y 351 (2004). 2See, e.g., Timmer, supra note 1, at 352–53. 266 J. TIMMER due, in large part, to the First Amendment, which protects both the television industry and the presentation of television violence.3 With its options to deal with television violence constrained by the First Amend- ment, Congress has often relied on industry self-regulation to address its concerns about television violence.4 In fact, the laws Congress has passed addressing television violence — giving the industry an antitrust exemption to allow it to develop standards on violence in television programming and requiring the development of a program rating system to work in conjunction with the V-chip — have attempted to get the industry to regulate itself in this area.5 An aspect of one such law — the program rating system required by the V-chip law6 — is the focus of this article. The article examines the creation, implementation and operation of the rating system, known as the “TV Parental Guidelines.” Its focus is on the self-regulatory organization created by the industry to oversee the system, the TV Parental Guidelines Oversight Monitoring Board.7 Little is publicly known about the organization; few periodical articles mention it, much less discuss it in depth. Further, it does not appear any academic articles have been published that focus on the board. One purpose of this article, then, is to provide information on an organization about which little has been written. In examining the board and its functioning as a self-regulatory organization, the history of congressional action on television violence is covered, as is the academic literature on self-regulation generally. What is known about the board’s activities is then discussed, followed by a consideration of the conditions that have been identified as being con- ducive to effective industry self-regulation. The article concludes with suggestions about what the board might do to increase its effectiveness in promoting accuracy and consistency in the application of the TV Parental Guidelines. 3For a discussion of First Amendment limitations on the regulation of violent entertainment, see Joel Timmer, When a Commercial Is Not a Commercial: Advertising of Violent Entertainment and the First Amendment,7COMM.LAW &POL’Y 157, 173–81 (2002). 4See, e.g., Timmer, supra note 1, at 358–62. 5See infra notes 12–24 and accompanying text. 6Telecommunications Act of 1996, Pub. L. No. 104–104, 110 Stat. 56, § 551 (1996) [hereinafter V-Chip Law]. The Parental Choice in Television Programming Act was passed by Congress as part of the Telecommunications Act of 1996. 7See infra notes 43–44 and accompanying text. TV VIOLENCE &INDUSTRY SELF-REGULATION 267 HISTORY OF CONGRESSIONAL CONCERN ABOUT TELEVISION VIOLENCE Since the early days of television, violence has been a regular concern of Congress. Congress held hearings on television violence as early as 1952 and in every decade since.8 Despite that, no legislation to deal with television violence was introduced until 1986.9 Instead, Congress’ approach typically involved making the television industry aware of its concerns and calling on the industry to address those concerns. In other words, Congress has long followed a strategy of encouraging or pressuring the industry to self-regulate.10 Such a strategy consists of the government pressuring industry to change its behaviors without tak- ing legislative or other formal action to actually require changes. Such pressure, however, is typically accompanied by an implied or explicit threat for the government to take action should the industry fail to do so.11 Since Congress regularly returned to the issue of television violence, however, one can conclude that earlier efforts to promote industry self-regulation of television violence were not viewed as being entirely successful. Beginning in 1986, legislation was introduced in Congress to address television violence.12 This led to the passage of the first law to deal with television violence: the Television Program Improvement Act of 1990.13 The law provided the television industry with a three-year exemption from antitrust laws to allow industry members to collaborate and develop standards on the presentation of television violence.14 However, no action by the industry was mandated; rather, any action by the industry to develop such standards was entirely voluntary.15 Little was done by the industry until near the expiration of the antitrust exemption, when the four broadcast networks and many cable networks pledged to air parental advisories before programs with violent content.16 This 8See supra note 1. 9See, e.g., Timmer, supra note 1, at 363. 10See id. at 358–62. 11See MICHAEL HOWLETT &M.RAMESH,STUDYING PUBLIC POLICY:POLICY CYCLES AND POLICY SUBSYSTEMS 91 (1995). 12For some explanations as to why legislation on television violence was introduced during this time period see Timmer, supra note 1, at 363–65. 1347 U.S.C. § 303c (2012). 14Id.at§ 303c(c). 15The law was likely written this way to avoid raising the First Amendment concerns that mandated action might have raised. 16See, e.g., Ellen Edwards, Cable to Air Violence Warnings,WASH.POST, July 30, 1993, at G1; Megan Rosenfeld, Warning: TV Violence Is Harmful, Networks Concede,WASH. POST, July 1, 1993, at A1. 268 J. TIMMER apparently failed to satisfy Congress, however, and many hearings were held on television violence over the next few years, with several bills on the topic being introduced.17 All of this congressional activity on television violence in the mid- 1990s culminated with the 1996 passage of another law attempting to address television violence. That law, the Parental Choice in Television Programming Act,18 was passed, in part, because Congress found that children are negatively affected by the sex and violence on television to which they are exposed. Accordingly, Congress sought “to limit the negative influences of video programming that is harmful to children.”19 To achieve this, Congress required that most new television sets sold in the United States be equipped with technology that parents could use to block programs with sexual, violent or other content to which they did not want their children exposed.20 In order for this technology, known as the “V-chip,” to recognize what to block, programs needed to be rated. Distributors of video programming would then include ratings on programs to allow parents to block programming they determined to be inappropriate for their children.21 The V-chip law left it to the industry to develop a television program rating system that would allow the technology to determine what programming to block, with one important caveat: If the industry should fail to devise a system found acceptable by the Federal Communications Commission, then the FCC would itself appoint an advisory committee to devise such a system.22 This advisory committee, which would be composed of representatives of the television industry, parents and ap- propriate public interest groups, would develop a system for the “rating of video programming that contains sexual, violent, or other indecent material about which parents should be informed before it is displayed to children.”23 The television industry, however, worked to develop an 17See, e.g., Timmer, supra note 1, at 366–69. 18V-Chip Law, supra note 6. 1947 U.S.C. 303 note (2013); V-Chip Law, supra note 6, at § 551(a)(8) (1996). 2047 U.S.C. § 303(x) (2013). 2147 U.S.C. 303 note (2013); V-Chip Law, supra note 6, at §

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