The V-Chip Revisited

By: Mitchell D. Kamarck

Periodical: The Business Of Film

Date: September 1997

Last year television ratings were just the subject matter for politicians’ campaign speeches and speculation by this author.  This year, after prolonged negotiations, television ratings are a reality.  And soon the marriage between censorship and technology will be consummated as televisions with v-chips implants roll off the assembly line.  However, though a calm has settled in over the v-chip battlefield--based on an apparent cease fire agreement--the war is not over and the ultimate victor is unclear.

THE CEASE FIRE AGREEMENT

Pursuant to the Telecommunications Act of 1996, television broadcasters, cable operators and other “video distributors” had until February 8, 1997 to establish a voluntary rating system for programming that “contains sexual, violent or other indecent material.”  If they failed to take action, The Federal Communications Commission was empowered to create an advisory committee to recommend such guidelines and procedures.

The television industry beat the deadline by over a month and in December of 1996, it came out with its “age based system.”  This system rated each television show, with certain shows such as sports and news exempted, based on whether the content was appropriate for certain age groups.  The five aged based rating systems are:   children’s ratings of  TV-Y (suitable for all children) and  TV-Y-7 (suitable for children age 7 and over) and general ratings of TV-G (suitable for audiences of all ages);  TV-14 (inappropriate for children under the age of 14), and TV-M (for mature audiences only).

This rating system did not appease Washington or parental groups, both of which wanted a content based system closer to the system tested in Canada (and ultimately abandoned by Canada).  A content based system informs the viewer exactly why the show is inappropriate for certain audience by disclosing the purportedly objectionable content.  Thus, in the experimental Canadian system shows were rated with: V for violence, S for sexual situations and L for language.

Ultimately, having failed to convince both the politicians and the viewing public of a simple age based system, the television industry, with one notable exception, buckled and created a new system combining the age and content based systems.  To the existing system, the television industry agreed to add the following content based ratings: FV for fantasy violence (to be added only to TV-Y-7 ratings), V for violence, S for sexual content, L for language, and D for saucy dialogue.  The ratings will not included the failed Canadian system’s inclusion of 1-5 point scale for each content rating.

What does the television industry get in return?  Purportedly, the television industry received assurances that they would get free use of airway space that the federal government had planned to auction and a three-year moratorium on new television content legislation by certain key lawmakers.

THE NOTABLE EXCEPTION

NBC is the only major network to refuse to adopt the new combined system set for use on October 1.   The entertainment president of NBC, Warren Littlefield, compares the new rating system “as a little snowball that was rolling down the hill.  And as broadcasters, I think we are now looking at a potential avalanche right now.”  For the time being, NBC has drawn its line in the sand.  However, Littlefield notes, “It’s our hope that we will be able to maintain this position.  We can’t see the future.  We don’t know how much pressure will be brought to bear.”

The question remains, “Et tu, Brute?”  Will NBC’s position nix the entire deal causing Washington to hold back the free use of airway space until NBC recants?  Ultimately, it is the airspace that is Washington’s trump card and a card which it has unabashedly played throughout negotiations with the television industry.  It is highly questionable that Washington could impose ratings upon the television industry because of the First Amendment.  However, Congress arguably can condition the use of new signal space upon the adoption of a rating system.  NBC’s line in the sand may challenge the constitutionality of the “voluntary” rating system with the victorious party gaining important leverage in future negotiations over airspace or television content legislation.  NBC now holds the key on this future war and the viability of the cease fire agreement. 

THE IRONY

The ironic aspect of the ratings skirmish is that any victory may be a Pyric victory for the television viewers.  In my article published last year in The Business of Film,  I noted that certain conservatives and television analysts criticized the adoption of a television ratings system because it will empower the television industry to broadcast more violent or adult material without fear of repercussions.  In fact, the new ratings have already been utilized as a marketing ploy (a use which the Motion Picture Association of America prohibits for the motion picture ratings).  For instance, Comedy Central advertises its new animated series, “South Park,” as “Why they created the V-Chip.”  Additionally, a recent study performed at the University of Wisconsin found that children between the ages of 10 to 15 wanted to see shows significantly more when they were rated PG-13 or R than the same shows when they were rated G.  Thus, a struggling cable network seeking new viewers, even younger viewers, will produce more adult fare, and advertise that it is doing so.

CONCLUSION

In one year the television industry, Congress and various special interest groups have hashed out a television rating system with a single major dissenter.   Whether the rating system will survive NBC’s boycott is one question.  However, the more important question, and less addressed, is how the rating system will affect the content of television programs.  Already we have seen one cable network use the ratings system to entice an audience to a mature content series.  Will, as prophesied by this author a year ago, other more mainstream networks feel pressured into requiring the delivery of shows with certain age group or content ratings?  The ratings can either be a sword or a shield; either protecting the creative works from criticism or forcing homogenized “acceptable” programming.

Mitchell D. Kamarck, of counsel to Rosenfeld, Meyer & Susman, LLP, in Beverly Hills, California, specializing in intellectual property and entertainment-related litigation. Mitchell also teaches a course entitled Television Law & Practice and Policy at California State University - Los Angeles. He can be reached by email at mkamarck@rmslaw. com.

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