Yesterday, the Senate passed S. 602, “The Child Safe Viewing Act of 2007,” which was introduced by Sen. Mark Pryor (D-AR) in February 2007. The bill requires the Federal Communications Commission (FCC) to study the market for “advance blocking technologies” (i.e., parental controls and rating systems) that parents can use to protect their kids from inappropriate content from various sources and platforms. On the surface, the measure seems harmless enough, but in practice, it could have some troubling long-term free speech implications if it leads to more government meddling with parental controls and ratings systems.

The measure requires the FCC to initiate a notice of inquiry to consider measures 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.

That all sounds harmless enough. Indeed, such a study could produce some useful information about the state of the parental controls marketplace.  (Of course, I could save them some taxpayer dollars and just send copies of my big Parental Controls & Online Child Safety report to all FCC officials!)

But it’s what comes next in the bill that causes me some heartburn. As part of the review mandated by the bill, S. 602 commands the FCC to “consider advanced blocking technologies that”:

1. may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms;
2. may be appropriate across a wide variety of devices capable of transmitting or receiving video or audio programming, including television sets, DVD players, VCRs, cable set top boxes, satellite receivers, and wireless devices;
3. can filter language based upon information in closed captioning;
4. operate independently of ratings pre-assigned by the creator of such video or audio programming; and;
5. may be effective in enhancing the ability of a parent to protect his or her child from indecent or objectionable programming, as determined by such parent.

I have highlighted the two provisions that are cause for concern since they raise the specter of what I referred to as “convergence-era content regulation” in a PFF paper about the bill last year.  Let me explain.

Regarding that first provision, here’s how I stated my concern in my old paper:

In demanding that regulators investigate and consider requiring blocking technologies for “wired, wireless, and Internet platforms,” the measure potentially opens the door to the beginning of convergence-era content regulation at the FCC. The agency currently has no authority to regulate content (or parental control technologies or rating systems) on most media or communications platforms outside of broadcasting, and its authority over broadcasting is limited. But S. 602 would potentially give regulators the ability to begin expanding the horizons of federal content regulation. One wonders what sort of resources the FCC would need to carry out this task. After all, we’re talking about numerous platforms and a potentially enormous volume of content. The FCC would likely need a small army of regulators to ensure that all “wired, wireless, and Internet platforms” were in compliance with the law. Will there be a specific team of FCC officials devoted to monitoring advanced blocking mechanisms for the official websites of major media operators? What about YouTube.com, MySpace.com and other major websites that host both user-generated content and professional media content? What about the new media platforms and content that mobile operators are offering? Many advanced blocking tools already exist to screen or filter online content, but whether other types of regulation could be required under S. 602 remains unclear. Moreover, the global reach of many of these online platforms raises other enforcement issues.

Second, regarding the second provision I highlighted above (about “independent ratings”), here again is how I stated my concern in my paper:

in specifying that these new advanced content blocking technologies should “operate independently of ratings pre-assigned by the creator of such video or audio programming,” S. 602 seems to imply that existing voluntary rating and labeling systems cannot be trusted. That is a dangerous presumption. Existing rating and labeling systems, while not perfect, are well-established and comprehensive. It is simply unrealistic to expect that all new advanced content blocking technologies will operate independent of existing rating and labeling systems, such as the television rating system, the MPAA movie rating systems, and the video game industry’s ESRB rating system. It is important to realize that these systems rate and label almost all the entertainment content produced in their respective fields. While third-party rating systems can supplement these official industry rating schemes, it is unlikely those independent schemes will ever be as comprehensive as the official industry systems. More importantly, existing blocking tools on the market today, such as the V-Chip and cable and satellite set-top boxes, rely on those official rating and labeling systems, which most Americans are already familiar with. It is unrealistic to expect all new consumer media devices to employ alternative blocking schemes or be able to read independent rating systems. Thus, it remains unclear what that sponsors of S. 602 are hoping to accomplish by specifying that new blocking systems “operate independently of ratings pre-assigned by the creator.” Regardless, the real danger here is that that language could fuel a push for “universal” media ratings that would be imposed by the government or a third-party which has the government’s blessing. It goes without saying that such a proposal would raise serious First Amendment concerns. But, even setting aside the clear First Amendment concerns, there is no practical reason to believe that the government could actually do a better job of assigning ratings or creating parental control tools. If the government were responsible for assigning content ratings or labels, for example, five unelected bureaucrats at the FCC or some other regulatory agency would simply substitute their own values for those of the voluntary rating boards or other labeling organizations in existence today.

Importantly, however, the version of S. 602 that the Senate passed was amended before being voted out of the Senate Commerce Committee on August 2, 2007. The amended version made a few important wording changes to the original version of the bill. Specifically, the Senate Commerce Committee struck the phrase that specified the FCC would have the power ” to encourage or require” the use of advanced blocking technologies.  Needless to say, that’s a very important deletion since it means that S. 602 hasn’t granted the FCC sweeping new powers to require the creation of content controls or ratings systems.  It’s one thing for the FCC to study the marketplace of existing controls and ratings systems. It’s quite another for the agency to get actively involved in the business of mandating or regulating those controls or rating systems.

Sen. Pryor and his Senate colleagues are to be commended for avoiding direct content regulation and instead focusing on empowering families to make media consumption decisions on their own. Nonetheless, in an attempt to empower parents it is important that Congress not empower regulators instead.  S. 602 opens the door to an expansion of the FCC’s authority over media content on multiple platforms and threatens to undermine private, voluntary rating systems in the process.  There are better ways to help parents and protect kids.

Further reading / sources:

• The Senate-passed version of S. 602
• press release from Sen. Mark Pryor about Senate passage
• article by Ted Hearn of Multichannel News about Senate passage
• my PFF white paper on the earlier version of the bill: “Convergence-Era Content Regulation? S. 602, The Child Safe Viewing Act of 2007“.

When the definitive history of Kevin Martin’s regulatory reign of terror against the cable industry is finally written, I have a feeling that Ted Hearn of Multichannel News will be the man who pens it. There is no one who has been reporting on these issues longer or with more investigative vigor than Ted. In an absolutely scathing piece today about a former Martin staffer, Ted does a nice job summarizing the major elements of Martin’s war on cable. It reads like the list of grievances against King George found in the Declaration. (Think: “He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.”)  Anyway, I just thought I’d throw Ted’s list up here for those keeping score at home:

— He secretly rewrote an FCC study issued in November 2004 that had concluded that cable a la carte was a bad idea. — He walked away from a handshake agreement with NCTA, Comcast and Time Warner that the rollout of family programming packages would end his a la carte jihad. — He stripped cable’s control over critical wiring in apartment buildings, affirming the identical policy that a court had previously struck down. — He voided exclusive contracts between cable operators and apartment building owners just a few years after the FCC gave the green light to such deals. — He required cable operators to carry must carry TV stations in analog and digital for three years after voting against such a policy in February 2005. — He extended program access rules for five years, a gift to DirecTV and Dish Network even though the two satellite providers are larger than every cable company in the U.S. except Comcast and Time Warner. — He imposed expensive set-top box equipment mandates on cable, making it vastly more costly for Comcast and Time Warner to reach the goal of all-digital platforms. — He capped cable ownership at 30% of pay-TV subscribers nationally—the same limit that a federal court kicked back to the FCC as unlawful—while letting AT&T and Verizon basically divide the country’s phone market. — He slashed cable leased access rates to zero in an act of bureaucratic malice that a federal appeals court has now blocked and that the Office of Management and Budget has rejected as a violation of the Paperwork Reduction Act. — He decided to brand Comcast an Internet outlaw when all the company did was occasionally frustrate a tiny minority of customers whose massive consumption of Web porn and pirated Hollywood films was destroying the service for others.