Dawn of Convergence-Era Content Regulation at the FCC? "Child Safe Viewing Act" NOI Launched

The Federal Communications Commission (FCC) has just released a Notice of Inquiry (NOI) in the matter of "Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming." (MB Docket No. 09-26) This NOI was required by S. 602, the "Child Safe Viewing Act of 2007," which Congress passed last October and President Bush signed into law on December 2nd. The measure requires the FCC to examine:

(1) the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms;
(2) methods of encouraging the development, deployment, and use of such technology by parents that do not affect the packaging or pricing of a content provider's offering; and
(3) the existence, availability, and use of parental empowerment tools and initiatives already in the market.

The Act defines the term "advanced blocking technologies" as "technologies that can improve or enhance the ability of a parent to protect his or her child from any indecent or objectionable video or audio programming, as determined by such parent." Importantly, the Act also directs the agency to look into blocking technologies that "may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms" and which "operate independently of ratings pre-assigned by the creator of such video or audio programming." The Act requires that the FCC issue a report to Congress about these technologies no later than August 29, 2009.

When writing about the Child Safe Viewing Act shortly after its introduction in the summer of 2007, I noted that the measure potentially represented the beginning of "convergence-era content regulation" at the FCC. Those two clauses highlighted above are of particular importance in that regard. Congress has essentially invited the FCC to engage in unprecedented oversight of media platforms and ratings systems that the agency previously had very little ability to influence.

First, the Act's stipulation that the FCC examine advanced content blocking technologies that "operate independently of ratings pre-assigned by the creator," seems to imply that existing voluntary rating and labeling systems cannot be trusted. That is a dangerous presumption that suggests the FCC might be able to come up with better media ratings on its own. But the fact that the agency has been empowered to look into rating systems for media content outside its area of authority (ex: movies, mobile media, online video) means that the agency might now be potentially placing greater pressure on media providers and distributors in those fields to "clean up" their content that same way that the agency pressures TV and radio broadcasters.

Similarly, the Act's requirement that the agency look into blocking technologies on "wired, wireless, and Internet platform" is an open-ended invitation for the FCC to oversee content on platforms and mediums that the agency previously had no control over. This clause on page 4 of the FCC's NOI is telling in that regard:

The Senate Report also explains that the Act requires the Commission to consider technologies that may be appropriate across a variety of content distribution platforms "[i]n recognition of the fact that television content is currently being made available over the Internet and over mobile devices." This language suggests that Congress intended that we focus on television content and the variety of platforms over which such content can be displayed and consider technologies capable of blocking inappropriate audio or video content transmitted as part of such programming.

In some ways, this makes all the sense in the world. The fact that Congress and the FCC have long been engaged in the regulation of content by its means of transmission to the viewer or listener has always been a bit silly. Basing regulation on what Randy May has called "techno-functional constructs" has resulted in a jurisprudential Twilight Zone in terms of speech regulation: identical words and images transmitted over one medium end up being regulated different than when transmitted over another. (See my article "Why Regulate Broadcasting?" for more discussion.) Traditionally, this has meant broadcasting drew the short straw when it came to First Amendment treatment, with their analog signals or digital bits being deemed worthy of less First Amendment protection than the signals or bits transmitted over cable, satellites, fiber, or even print media.

As lawmakers increasingly realize that an age of media abundance and technological convergence has made those silly techno-functional constructs even more preposterous, we can expect Congress to introduce more legislation like the Child Safe Viewing Act and encourage FCC scrutiny of content regardless of its means of transmittal. But such proposals raise a number of interesting questions, including:

(1) Does the FCC have the statutory authority to be regulating (or even investigating) speech on those other platforms? What are the First Amendment issues at stake here?

(2) Assuming it has some authority, if the FCC finds that "advanced blocking controls" are not present, or do not work effectively, what remedies would the agency pursue? (Can you say "universal ratings"?)

(3) Just what sort of resources will be required to allow the FCC to police all "wired, wireless, and Internet platforms"?

I don't want to go overboard here and suggest that the agency is going to jump right onto the censorship bandwagon and start regulating everything under the sun thanks to S. 602. Again, to be clear, the Child Safety View Act only authorizes the agency to study to market for advanced blocking tools. It's hard to argue against "the study" of anything. But what concerns me here is the specter of regulatory creep. As I concluded in an earlier essay about the measure:

We have to hope that the FCC doesn't use this "study" as an excuse to undermine existing voluntary parental controls and private content rating efforts or, worse yet, embark on an effort to impose new speech controls or mandatory rating and labeling schemes on media content. If they follow that path, a serious First Amendment battle awaits.

Is that a valid concern, or am I over-stating things? Well, consider this. Between pages 15-20 of the NOI, in a section on"Content Available over the Internet," the agency poses dozens of questions about new digital technologies and services including: Hulu,YouTube, TiVo, iTunes and the iPhone, iPod and Mp3 players, peer-to-peer networks, wi-fi hot spots, Teen Second Life, and even video game consoles. In fact, on page 16 of the NOI the agency asks: "What impact, if any, does the interface between video gaming systems and the Internet have on children's online safety?" It's certainly a legitimate question for public debate, but is anyone else besides me uncomfortable with the fact that the Federal Communications Commission is asking it? If, like me, you've spent you're life fighting over-zealous FCC content regulation, then you might appreciate my concern. Will the FCC soon be fielding complaints about the next installment of "Grand Theft Auto"? Are uncensored "Saturday Night Live" clips on Hulu suddenly going to be subjected to broadcast TV-like indecency fines? Is my iTunes podcast fair game for federal regulators? Again, I hope none of this paranoia is justified, but I think there are reasons to be concerned.

The more constructive path forward for the FCC is to help highlight the useful tools and rating systems already on the market and encourage parents to take advantage of them if they feel so compelled. As FCC Commissioner Jonathan Adelstein noted in his statement about the NOI, "Blocking technology strikes a balance beneficial to all parties involved: it allows us to protect our children while respecting the creative and expressive rights of content creators." Indeed, as I have argued in my book on "Parental Controls and Online Child Protection:"

The ideal state of affairs, therefore, would be a nation of fully empowered parents who have the ability to perfectly tailor their family's media consumption habits to their specific values and preferences. Specifically, parents or guardians would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to not only block objectionable materials, but also to more easily find content they feel is appropriate for their families.

If the FCC can help build public awareness about such user-empowerment tools, that's wonderful. I'm all for that. But it's what the agency might do above and beyond that which has my spider sense tingling.

Anyway, you can read the bill and the NOI below and judge for yourself. [Note: The version of S. 602 below is the version passed by the Senate. The final version agreed to by the House stripped out Sec. 2, the findings section, and Sec. 3 became the new Sec. 2. For some reason, the GPO never produced a final PDF version of the bill as passed by the full Congress. If someone else has it, please forward it to me so I can post it here.]

S602 Child Safe Viewing Act

FCC NOI for Child Safe Viewing Act (MB 09-26)