On Friday, the Federal Communications Commission (FCC) released a new Notice of Inquiry entitled, “Empowering Parents and Protecting Children in an Evolving Media Landscape” (MB Docket No. 09-194).  The purpose of this investigation is to:

seek information on the extent to which children are using electronic media today, the benefits and risks these technologies bring for children, and the ways in which parents, teachers, and children can help reap the benefits while minimizing the risks. (p. 2)… Our goal with this NOI is to gather data and recommend-ations from experts, industry, and parents that will enable us to identify actions that all stakeholders can take to enable parents and children to navigate this promising electronic media landscape safely and successfully. (p. 3)

This Notice builds on the FCC’s August 31st Report to Congress (“Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming”) that was required pursuant to the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of that bill and the FCC’s proceeding (MB Docket No. 09-26) was to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.” [I filed 150+ pages worth of comments in that proceeding, and here’s my analysis of why the bill and the FCC’s proceedings are worth monitoring. In previous posts here, I also listed all the major filings and reply comments that were submitted to the FCC in the matter.]

While the FCC’s new Notice outlines several positive impacts that media use may have for children, it then goes on to itemize a variety of concerns about media exposure:

While we recognize that electronic media technologies offer these potential benefits to children, we also explore the risks of harm that media use presents. As discussed below, these risks include (i) exposure to exploitative advertising; (ii) exposure to inappropriate content (such as offensive language, sexual content, violence, or hate speech); (iii) impact on health (for example, childhood obesity, tobacco use, sexual behavior, or drug and alcohol use); (iv) impact on behavior (in particular, exposure to violence leading to aggressive behavior); (v) harassment and bullying; (vi) sexual predation; (vii) fraud and scams; (viii) failure to distinguish between who can and who cannot be trusted when sharing information; and (ix) compromised privacy. We seek comment on these risks, whether parents, teachers, and children are aware of them, and what can be done to protect children from them.

It’s not really clear to me where the FCC finds the jurisdictional authority to investigate some of these things (hate speech? bullying?), but let’s not worry about that here. The question a lot of folks — especially those with strong First Amendment leanings — will be asking is: Where is the FCC heading with this in terms of new speech controls or content regulation?

In my earlier work on the “Child Safe Viewing Act,” I worried that the bill and resulting FCC investigation might be the beginning of “convergence-era content regulation.” I was pleasantly surprised, however, with the FCC’s final Report to Congress about the Child Safe Viewing Act, which did a very nice job highlighting the amazing diversity of parental control tools and methods on the market today.  That being said, the proceeding noted that “no single parental control technology available today works across all media platforms” and might have left the impression in minds of some critics that it was somehow possible to create a “universal” parental control or rating mechanism to deal with content across platforms.

Not only is it highly unlikely that such a silver-bullet solution is possible, but it’s unclear that it is even desirable.  I spent some time addressing this issue in my big filing to the FCC earlier this year.  If you jump to pg. 98 of my filing, you will find a section on “The Perils of Mandatory Controls, Restrictive Defaults or ‘Universal’ Ratings.” In it I argue:

the search for technological silver?bullet solutions and “universal” ratings or controls represents a quixotic, Holy Grail?like quest. Simply stated, if it sounds too good to be true, it probably is. There are no simple solutions or quick fixes to concerns about objectionable media content or online child safety. Only a “layered” approach—involving many tools, methods, and strategies—can get the job done right. And technological blocking controls are probably the least important part of that mix. Education and mentoring are far more important. Moreover…  any move to force “universal,” top?down solutions could destroy future innovation in this space. [There are] unforeseen downsides to mandating controls and defaults as well as efforts to create universal rating or labeling schemes.

Again, to be clear, the FCC’s final report to Congress did not recommend any such thing, and the agency is to be commended for that.  But, at the end of the Child Safe Viewing Act report to Congress, the agency also noted that another Notice of Inquiry would dig a little deeper into possible solutions, and now here it is.  But it still remains unclear where the FCC might take this in terms of concrete steps. I was pleased to see a strong focus on the importance of education and media literacy in the agency’s latest notice, so that’s very good news. But there’s also plenty of hand-wringing about the supposed negative impacts of media throughout the report, which leads one to believe that the agency isn’t going to just settle for education-based solutions.

Importantly, there’s also a lot of talk about the supposed dangers of advertising to children in the new Notice:

Exposure to excessive and exploitative advertisements is a significant risk children face from electronic media. Advertisements of particular concern for children include: (i) those that promote products specifically to children; (ii) those that promote unhealthy food, thereby contributing to childhood obesity, and (iii) those that contain inappropriate content, such as offensive language, sexual content, and

This is actually one area where the FCC does have a little jurisdictional authority under the Children’s Television Act of 1990. But I don’t see how the agency can read that statute, which was intended for broadcast television, too broadly.  Regardless, if I had to bet on one thing we are certain to see come out of this proceeding, I’d say some expanded advertising restrictions are in the works.  But, again, the agency’s limited jurisdiction makes it hard for me to understand where they plan to go with this or how it would pass muster in the courts once challenged.

Anyway, stay tuned. Comments in the matter are due to the FCC by late December.  Meanwhile, one wonders how long it will be before Sen. Rockefeller and others up on Capitol Hill start to engage more on content-related issues.  They’ve been fairly silent so far this year.  In light of Sen. Rockefeller’s past efforts on this front, it seems likely he’ll eventually engage in this debate — and likely in a very pro-regulatory fashion.

Whatever you think about this messy dispute between AT&T and Google about how to classify web-based telephony apps for regulatory purposes — in this case, Google Voice — the key issue not to lose site of here is that we are inching ever closer to FCC regulation of web-based apps!  Again, this is the point we have stressed here again and again and again and again when opposing Net neutrality mandates: If you open the door to regulation of one layer of the Net, you open up the door to the eventual regulation of all layers of the Net.

You might not buy that story initially but if you doubt it then I invite you to read just about any history of American broadcast media regulation over the course of the past seven decades. (You might want to start with Krattenmaker & Powe’s Regulating Broadcast Programming or Jonathan Emord’s Freedom, Technology, and the First Amendment). In such histories you will find a common theme: Once regulation of media and communications platforms gets underway, the natural progression of things is uni-directional — Up!  That is, when new questions arise about how to “deal with” a new service, network, platform, or technology, the general tendency is the “regulate up” instead of “deregulating down.”  When regulators are given a greater say about the contours of markets as technologies evolve and/or converge, we shouldn’t be surprised that their first instinct is to “bring them into the fold.”

And, sadly, that is exactly what is likely to occur eventually with Google Voice. The only really interesting question is what else regulators start mucking with in the search and applications layer once they get their hands on it.  And if you still insist that I am being overly paranoid about “regulatory creep” and the prospect of the FCC gradually transforming into the Federal Information Commission, then consider what the agency had to say about cloud computing in paragraph 60 (pg. 21) of the FCC’s recent Wireless Innovation and Investment Notice of Inquiry, which was launched on August 27th:

As other approaches, such as cloud computing, evolve, will established standards or de facto standards become more important to the applications development process? For example, can a dominant cloud computing position raise the same competitive issues that are now being discussed in the context of network neutrality? Will it be necessary to modify the existing balance between regulatory and market forces to promote further innovation in the development and deployment of new applications and services?

Wow, who knew that the FCC even had the authority to oversee or regulate the cloud, right?  Well, they don’t. But, again, this is exactly how things have unfolded before: Throw statutory authority to the wind and slowly start extending the agency’s regulatory tentacles into new areas, services, technologies, platforms, and networks.  In this case, you can just imagine how some folks will use that FCC language to accuse Google of being in “a dominant cloud computing position” such that “the context of network neutrality” will be applied to cloud service (like Google Voice!) to “modify the existing balance between regulatory and market forces.”  Indeed, that’s pretty much what AT&T is suggesting in their letter to the FCC this week.

In a post yesterday over at the Google Public Policy Blog, my old friend Rick Whitt of Google insists that Google Voice is different than a traditional common carrier telecom service and that it doesn’t belong in the same regulatory bucket as those older voice services.  To Rick and my other friends at Google, I have only one thing to say about that argument: Good luck with that!  My prediction: Within two to three years you’ll be under the FCC’s thumb.

Again, I very much hope I am proven wrong. But I know that I won’t be wrong because neither side is going to back down in the escalating net neutrality war of mutually assured destruction.  “Regulating up” will carry the day and become, once again, our new telecom M.A.D. policy.

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 http://d.scribd.com/ScribdViewer.swf?document_id=12963165&access_key=key-1uqqvj45uwpa1z9qihzq&page=1&version=1&viewMode=list

FCC NOI for Child Safe Viewing Act (MB 09-26) http://d.scribd.com/ScribdViewer.swf?document_id=12963105&access_key=key-12ctxrbeq6b7cuh98m6t&page=1&version=1&viewMode=list