Legal-eagle eye view of protecting children


The FCC is looking into using technology to protect children from inappropriate electronic content, and is looking for your opinion. Peter Gutmann of Womble Carlyle Sandridge & Rice PLLC takes it all apart.

New FCC Inquiry on Children and Evolving Media

The FCC has issued a Notice of Inquiry whose wide-ranging scope is evident from its title: “Empowering Parents and Protecting Children in an Evolving Media Landscape.”

Although prompted by concerns over children’s exposure to harmful media content, the inquiry is quite even-handed, devoting considerable space to the educational opportunities, social communication and other benefits of electronic media for children and emphasizing prospects for industry initiatives, tools for parental control and improved media literacy among teachers, parents and children rather than governmental content restrictions.  The Notice also looks well beyond the recent spate of television indecency cases toward the Internet and mobile platforms to which broadcasters will increasingly turn to serve the rising generation of audience.  Thus, the inquiry may provide (or decline to adopt) a regulatory framework that will inform the future of all forms of broadcasting.

The Commission notes two fundamental problems.  The first is the issue of content – the same media platforms that provide beneficial information may also expose children to exploitative advertisements, offensive language, sexually explicit or violent material and even bullying, scams, or predators.  Second, parents seeking to control their children’s media consumption are increasingly challenged by media convergence and the multiplicity of platforms, since access is no longer limited to home environments that can be monitored or blocked but rather is readily available on mobile devices or computers outside the home and beyond the scope of parental supervision.

The Commission has already filed a report with Congress in response to the Child Safe Viewing Act of 2007 that addressed some of these matters, largely from the perspective of advanced blocking technologies.  Here, the Commission seeks further input on alternative approaches to this complex and evolving subject.
The Commission seeks comment in the following areas:

* Children’s use of media – The days of parents being able to control media access through the family telephone and the TV “off” switch are long gone.  Moreover, media use is pervasive – the FCC cites a study finding that children and teens used electronic media for nearly six hours per day – and that was in 2004!  The Commission seeks updated information concerning types, locations and means of media use by children, as well as knowledge gaps for which new studies might be undertaken.

* Benefits of electronic media – In addition to educational resources and social communication, the Commission recognizes the increasing importance of digital media skills for success in the workplace, improving health and overcoming disabilities.  The Commission seeks comment on how to stimulate the quantity and quality of educational content, as well as how to expand awareness and exposure to media benefits.

* Risks of electronic media – Here, the Commission’s primary focus is not upon the most common concerns linking social adjustment problems to children’s exposure to adult media content, but rather upon exploitative and harmful advertising – and not just content that promotes obesity and other health problems but new forms, including interactive and embedded ads.  While the FCC already restricts the amount and placement of advertising on children’s TV programs, the Commission seeks to explore the effectiveness of current regulation and asks whether voluntary industry efforts will suffice to create incentives to limit exposure to ads on other media, or whether governmental regulation may be required to empower parents in this area.

* Protecting children from the risks – Here, the trend of media convergence presents a crucial challenge for parents wishing to monitor and control their children’s exposure to harmful media content, since household-based rules are largely ineffective.  The Commission notes that the effectiveness of parental control tools across burgeoning media platforms is dependent upon the level of consumer awareness of the tools, the pace of adoption of available tools by parents, their ease of use, the ratings system upon which most tools depend for triggering, and the accelerating pace of innovation that threatens to outstrip development of effective tools.  The Commission is painfully aware of the general failure of the V-Chip in meeting each of these criteria despite a decade of deployment.  Therefore, the Commission suggests that the answer may lie generally in media literacy – that is, how parents and children can learn to use the benefits of media while avoiding their potential harms.  The concerns here range from the elemental (how to teach young children to distinguish program content from advertising) to legal issues (privacy implications, and whether the Commission can assert jurisdiction at all in certain areas).  Tentatively, the Commission looks to schools as a primary resource for disseminating appropriate information.

A copy of the complete Notice of Inquiry is available on the FCC’s website at:  Comments may be submitted for 60 days after publication of the Notice in the Federal Register, and replies for 30 days after that.

Although not explicitly stated, the Inquiry confronts a critical reality – with respect to accessing new media a typical ten-year old is vastly more sophisticated than a typical adult.  Clearly, the regulatory methods of the past simply can no longer work.  Thus, the essential challenge is how to deal with this new situation – or perhaps, more basically, to determine if government is able to deal with it at all.  Yet given the crucial role that children’s welfare will play in molding regulatory policy – in an associated statement Chairman Genachowski termed children “our most precious national resource” – we can be sure that the questions raised in this proceeding will be at the forefront of the FCC’s approach to future media regulation.  Clearly, the answers will help to define the relationship between the FCC and broadcasting in the future.