Federal Communications Commission FCC 09-69 Before the Federal Communications Commission Washington, D.C. 20554 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 REPORT Adopted: August 27, 2009 Released: August 31, 2009 By the Commission: Chairman Genachowski and Commissioners Copps, McDowell, Clyburn and Baker issuing separate statements. TABLE OF CONTENTS Heading Paragraph # I. INTRODUCTION.................................................................................................................................. 1 II. TELEVISION......................................................................................................................................... 8 A. V-Chip............................................................................................................................................ 11 1. V-chip Data............................................................................................................................... 15 2. Potential Improvements to the V-chip ...................................................................................... 24 a. TV Parental Guidelines....................................................................................................... 25 b. Rating Advertising.............................................................................................................. 32 c. White Listing – Use of Content Descriptors to Select Programming................................. 36 d. Independent and Multiple Rating Systems......................................................................... 39 e. Other Changes to the V-chip .............................................................................................. 47 f. Intellectual Property Issues Related to the V-chip .............................................................. 49 3. Educational Efforts ................................................................................................................... 53 B. MVPD Parental Controls ............................................................................................................... 56 C. Other Parental Control Devices for Television.............................................................................. 68 1. TiVo’s KidZone ........................................................................................................................ 69 2. TVGuardian .............................................................................................................................. 74 3. CC+........................................................................................................................................... 79 4. Digital Watermarking ............................................................................................................... 81 5. Other Technologies................................................................................................................... 84 III. VIDEO GAMES................................................................................................................................... 85 IV. AUDIO-ONLY PROGRAMMING ..................................................................................................... 89 V. WIRELESS DEVICES......................................................................................................................... 94 A. Wireless Industry Guidelines and Content Controls...................................................................... 97 1. Using Content Controls........................................................................................................... 101 2. Filtering Content Using Digital Watermarking....................................................................... 103 B. Non-Content-Based Blocking and Filtering Technologies.......................................................... 104 1. General Limits on Wireless Phone Use .................................................................................. 106 2. Location-Based Services and Other Technologies.................................................................. 110 C. Open Platform Issues ................................................................................................................... 112 D. Future Developments ................................................................................................................... 113 E. Educational Efforts ...................................................................................................................... 114 VI. NON-NETWORKED DEVICES ....................................................................................................... 117 Federal Communications Commission FCC 09-69 2 VII.INTERNET......................................................................................................................................... 124 A. Internet ......................................................................................................................................... 124 B. Introduction.................................................................................................................................. 125 C. Previous and Current Online Safety Work................................................................................... 130 D. The Availability of Video on the Internet.................................................................................... 133 E. Discussion.................................................................................................................................... 140 1. Software Solutions .................................................................................................................. 144 2. Network Service Provider Solutions....................................................................................... 153 3. Content Service Provider Solutions ....................................................................................... 154 4. Parent and Care Giver Driven Solutions................................................................................. 168 VIII. UNIVERSAL STANDARDS .......................................................................................................... 175 IX. ENCOURAGING THE DEVELOPMENT AND USE OF PARENTAL CONTROLS.................... 179 X. CRITERIA FOR PARENTAL CONTROL TECHNOLOGIES........................................................ 187 XI. NEED FOR ADDITIONAL DATA REGARDING PARENTAL CONTROL TECHNOLOGIES.............................................................................................................................. 205 XII. CONCLUSION ................................................................................................................................. 213 XIII. ORDERING CLAUSES .................................................................................................................. 214 APPENDIX A – Commenters Filing in MB Docket No. 09-68 APPENDIX B – Reply Comments I. INTRODUCTION 1. We submit this Report to Congress pursuant to the Child Safe Viewing Act of 2007 (“Child Safe Viewing Act” or “Act”).1 The Act directs the Commission to provide, by August 29, 2009, an assessment of the current state of the marketplace with respect to: the existence and availability of advanced blocking technologies;2 methods of encouraging the development, deployment and use of such technologies that do not affect the packaging or pricing of programming; and the existence, availability and use of parental empowerment tools and initiatives already in the market.3 2. The Act addresses the drastic changes in the media landscape that affect children. Specifically, in the last two decades, electronic media has assumed an increasingly integral role in the lives of children.4 As a result of a number of technological innovations and the growing convergence of media, children today can access the same content sources from a variety of media platforms, many of which are portable.5 This increasingly complex media environment carries both risks and opportunities 1 See Child Safe Viewing Act of 2007, Pub. L. No. 110-452, 122 Stat. 5025 (December 2, 2008). The Act requires the Commission to issue a report to Congress no later than 270 days after the date of enactment of the Act (i.e., by August 29, 2009). See id. at Section 2(c). Because this day falls on a Saturday, we are submitting this Report to Congress on the next business day, Monday, August 31, 2009. 2 Congress defined “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, that is transmitted through the use of wire, wireless, or radio communications.” Id. at Section 2(d). 3 See id. at Section 2(a). 4 For example, a recent Nielsen survey reports that children from two to 11 years of age are spending 63 percent more time online than they did five years ago. See The Nielsen Company, Growing Up, and Growing Fast: Kids 2- 11 Spending More Time Online, July 6, 2009, http://blog.nielsen.com/nielsenwire/online_mobile/growing-up-and- growing-fast-kids-2-11-spending-more-time-online/. 5 For example, according to a recent survey, 77 percent of teens in the U.S. have their own mobile phone. See The Nielsen Company, How Teens Use Media, June 2009, at 8, (continued….) Federal Communications Commission FCC 09-69 3 for the nation’s children. Among other things, children are able to use the various platforms to discover new opportunities for education that will help prepare them to become full participants in our economy and democracy. At the same time, however, they can be and often are exposed to harmful material that is inappropriate and unsuitable for minors. 3. Pursuant to the Act, the Commission adopted a Notice of Inquiry (“NOI”) on March 2, 2009, in response to which the Commission received numerous comments.6 This report is a summary of the record developed in response to that NOI—drawing certain conclusions from the comments submitted as well as identifying additional important questions that remain unresolved. 4. In this Report, we categorize and analyze the available options within each medium. We describe the comments the Commission received regarding the kinds of advanced blocking technologies and other parental control tools that exist and are available with respect to over-the-air television; cable and satellite television; audio-only programming; wireless services; non-networked devices such as videocassette recorders (“VCRs”) and DVD players; and the Internet. We discuss commenters’ views regarding a variety of technologies and ratings systems and whether any of these technologies or ratings systems could be used across multiple media platforms. Finally, we address the existence, availability, and use of parental control tools and initiatives already in the market, and discuss efforts to address online safety issues. 5. Conclusion. Taken as a whole, the record indicates that no single parental control technology available today works across all media platforms. Moreover, even within each media platform, these technologies vary greatly with respect to the following criteria: (i) cost to consumers; (ii) level of consumer awareness/promotional and educational efforts; (iii) adoption rate; (iv) customer support; (v) ease of use; (vi) means to prevent children from overriding parental controls; (vii) blocking content/black listing; (viii) selecting content/white listing; (ix) access to multiple ratings systems; (x) parental understanding of ratings systems; (xi) reliance on non-ratings-based system; (xii) ability to monitor usage and view usage history; (xiii) ability to restrict access and usage; (xiv) access to parental controls outside of the home; and (xv) tracking. In addition, a common theme that runs throughout the comments is the need for greater education and media literacy for parents and more effective diffusion of information about the tools available to them. Many commenters urge the government to play a more substantial role in meeting this need. 6. Further questions. While the Commission received many responses to the NOI, and the record provides a substantial amount of useful information, it nonetheless fails to address key questions central to a full understanding of how parental control technologies can best be used to protect children (Continued from previous page) http://blog.nielsen.com/nielsenwire/reports/nielsen_howteensusemedia_june09.pdf. According to one source, U.S. teens rank second in the world in terms of mobile Internet penetration. See id. at 8-9 (in the first quarter of 2009, 37 percent of U.S. mobile subscribers aged 13-17 used their wireless devices to access the Internet, and 18 percent to view videos). Further, video is more prevalent online, as indicated by a recent report noting that by 2013, global online video will represent 60 percent of consumer Internet traffic – up from 32 percent this year. See Cisco Visual Networking Index: Forecast and Methodology, 2008-2013, June 9, 2009, http://www.cisco.com/en/US/solutions/collateral/ns341/ns525/ns537/ns705/ns827/white_paper_c11- 481360_ns827_Networking_Solutions_White_Paper.html. 6 See In the Matter of Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, Notice of Inquiry, 24 FCC Rcd 3342 (2009) (“NOI”). Appendix A and B contain a list of comments and reply comments received in response to the NOI. In addition to the comments listed in Appendix A and B, the Commission received approximately 9,900 brief comments, the vast majority of which expressed general support for the use of parental control technology to enhance parents’ ability to protect their children. Federal Communications Commission FCC 09-69 4 in an evolving digital media marketplace. For example, the following issues, among others, remain unresolved: · To what extent are parents aware of the control technologies that exist today?7 Does parental awareness differ among media?; · Are there reasons besides lack of awareness that keep parents from using these technologies? If so, what are they, and do they differ among media?;8 · It appears that adoption of control technologies may be greater for the Internet than for broadcasting and other traditional media sources: Why is this so?;9 · Are there data to determine the pace of innovation in parental control technologies, whether innovation is proceeding at a pace consistent with other consumer technologies, and whether evolving needs of parents, caregivers, and children are being satisfied in a timely manner? 7. The Commission intends to issue a further Notice of Inquiry to explore these issues and others related to the goal of protecting children and empowering parents in the digital age. II. TELEVISION 8. Television continues to have a “uniquely pervasive presence in the lives of all Americans.”10 In spite of the increase in the number of other types of media to which children are exposed, television remains the medium of choice among children.11 Children ages 8 to 18 devote about 50 percent of their total media time to television and watch on average more than three hours of television each day.12 More than two-thirds of children in this age range have televisions in their 7 To the extent there is data, estimates of awareness vary dramatically. For example, estimates of awareness of the V-chip among parents vary from 49 percent to 69 percent. See infra ¶ 16. Estimates of awareness of MVPD controls among parents vary from 45 percent to 90 percent. See infra ¶ 57. Data regarding other technologies is lacking. 8 For example, with respect to the V-chip, the record indicates that a lack of understanding of the ratings system and difficulty in using the V-chip are two factors limiting parental adoption of the V-chip. See infra ¶¶ 19, 25, 27. Data regarding other technologies is lacking. 9 For example, estimates of V-chip usage vary from 5 percent to 16 percent of parents and one study concludes that only 17 percent of parents use cable parental controls, whereas another study finds that half of parents have filtering or monitoring software installed on computers used by teens. See infra ¶¶ 17, 57, 145, 151. Data regarding other technologies is lacking. 10 FCC v. Pacifica, 438 U.S. 726, 748 (1978), quoted in Action for Children’s Television v. FCC, 58 F.3d 654, 659 (D.C. Cir. 1995). 11 Some of the data on television viewing patterns does not distinguish between over-the-air broadcast television and pay services, such as cable and satellite television. 12 See Donald F. Roberts and Ulla G. Foehr, Trends in Media Use, Spring 2008, at 18 (Table 2) (“Trends in Media Use”). See also Donald F. Roberts, Ulla G. Foehr, and Victoria Rideout, Generation M: Media in the Lives of 8- 18Year-olds, Kaiser Family Foundation, March 2005, at Appendix 3.3 (“Generation M: Media in the Lives of 8-18 Year-Olds”). According to this study, 8-18 year-olds watch on average just over three hours of TV each day and nearly four hours when videos, DVDs, and pre-recorded shows are included. Id. at 1-34. In addition, children this age spend about 1¾ hours each day listening to music (including radio, CDs, tapes, or MP3 players), one hour each day on the computer outside schoolwork, and just under 50 minutes each day playing video games. Id. at 1-34. Federal Communications Commission FCC 09-69 5 bedrooms.13 Children younger than eight devote about two-thirds of their media time to television viewing and watch on average two hours of television daily.14 More than one-third of children younger than eight have television sets in their bedroom.15 Thus, children’s exposure to potentially objectionable content on television remains a primary concern. 9. As directed by the Act, we examine below parental control tools currently available to over-the-air television viewers and to subscribers of cable, satellite, and other Multichannel Video Programming Distributor (“MVPD”) service. In addition, we discuss other technologies that are available now, that are under development, or that could be used in the future to help parents monitor their children’s television viewing, as well as 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. The discussion below reflects that a range of blocking technologies is available to parents today to help guide their children’s television viewing. For over-the-air viewers, the V-chip provides a baseline tool that is available to all families that own a V-chip-equipped television set or converter box. The Senate Report accompanying the Child Safe Viewing Act indicates that the Act stems from Congressional concern with the efficacy of the V-chip, given its limited use by parents, as well as a desire to ensure that blocking capability continues to be available to consumers as technology advances. The Senate Report cites Section 551(d) of the Telecommunications Act of 1996 (the “1996 Act”)16 and notes that this provision requires the Commission “‘to take such action as the Commission determines appropriate’ to assess alternative program blocking technologies and to expand the V-chip requirement, if necessary, to facilitate the use of alternative technologies that may not rely on common ratings.”17 10. We examine below current V-chip use rates as well as the following potential improvements to the V-chip scheme: (i) increasing the accuracy and transparency of the TV Parental Guidelines, as well as promoting awareness of the ratings by increasing the size of the ratings icon on the screen, lengthening the time the icon remains on the screen, and playing an aural tone when the icon 13 See Trends in Media Use at 14 (Table 1). See also Generation M: Media in the Lives of 8-18 Year-olds at 13 (Table 3-E). A November 2005 survey of 513 parents of children ages 2-17 conducted by Russell Research found that 64 percent of parents surveyed allowed their child to have a television in his or her bedroom. See Survey: Parents Combine Old-Fashioned TV Rules and Latest Blocking Technologies to Manage Kids’ TV, November 28, 2005, http://www.televisionwatch.org/NewsPolls/PressReleases/PR008.html. 14 See Trends in Media Use at 18 (Table 2). 15 See id. at 14 (Table 1). 16 See The Telecommunications Act of 1996, Pub. L. No. 104-104, § 551(d), 110 Stat. 56, 141-142 (1996) (codified at 47 U.S.C. § 330(c)(4)). See also Victoria Rideout & Elizabeth Hamel, The Media Family: Electronic Media in the Lives of Infants, Toddlers, Preschoolers and their Parents, Kaiser Family Foundation (2006). This study showed that children age six and under spend about an hour and 20 minutes each day watching TV and that 33 percent had a TV in their bedroom. Id. at 8, 18. 17 S. Rep. No. 110-268, at 2 (2008), as reprinted in 2009 U.S.C.C.A.N. 2196, 2197. We note that Section 330(c)(4) of the Communications Act provides that the Commission shall amend its V-chip rules if it determines that an alternative blocking technology exists that meets the following conditions: (i) enables parents to block programming based on identifying programs without ratings; (ii) is available to consumers at a cost which is comparable to the cost of technology that allows parents to block programming based on common ratings; and (iii) will allow parents to block a broad range of programs on a multichannel system as effectively and as easily as technology that allows parents to block programming based on common ratings. See 47 U.S.C. § 330(c)(4). This Report responds specifically to the directive of Congress in the Child Safe Viewing Act to issue a Report on “advanced blocking technologies” as defined therein. We do not in this Report address whether an “alternative blocking technology” exists as contemplated in Section 330(c)(4). Federal Communications Commission FCC 09-69 6 appears; (ii) using the V-chip to filter inappropriate television commercials and embedded advertising content; (iii) using the V-chip to “whitelist” programs (i.e., using content descriptors to affirmatively select rather than simply block programming); (iv) allowing parents to choose from among multiple independent ratings systems in conjunction within the V-chip; (v) addressing potential intellectual property issues that may impede efforts to improve the V-chip and the current ratings system; and (vi) promoting awareness and understanding of the V-chip through government and industry educational efforts. Apart from the V-chip, there is a wide array of parental control technologies for television, including tools offered by MVPDs, as well as VCRs, DVD players, and digital video recorders (“DVRs”), that permit parents to accumulate a library of preferred programming for their children to watch.18 We examine below the range of blocking capabilities offered by MVPDs. We also examine a number of other blocking technologies, some of which are currently in use and some that are either being developed or offer promise for the future. A. V-Chip 11. The V-chip is the only advanced blocking technology available to the 11 percent of TV households that exclusively rely on over-the-air television that does not require purchasing an additional piece of equipment.19 As a result of the DTV transition, many households that rely on older over-the-air television sets that do not incorporate V-chip technology now have V-chip capability through their DTV converter boxes for the first time.20 Congress adopted the V-chip requirement in 1996 as part of the Parental Choice in Television Programming Act.21 In addition to directing the Commission to adopt a V-chip requirement,22 the 1996 Act directed that, if the industry did not adopt voluntary rules for rating video programming, the Commission should prescribe guidelines and recommended procedures for program ratings.23 The broadcast, cable, and movie industries subsequently voluntarily created the TV 18 Parental control technologies for non-networked devices, such as DVD players, are discussed in Section VI below. 19 See The Nielsen Company, 2008-2009, Universe Estimates, Media Related TV Households and Penetrations by County within DMA, July 2009. It should be noted that households that subscribe to a pay service and thus are not included in the 11 percent figure may not connect all sets to that service, so that the V-chip may be the only freely available blocking technology that would allow parents to control the programming that their children watch on those television sets connected to over-the-air antennas. 20 See 47 C.F.R. § 15.120; Technical Requirements to Enable Blocking of Video Programming Based on Program Ratings, 13 FCC Rcd 11248 (1998). All television sets manufactured in the United States or shipped in interstate commerce that met certain size thresholds had to be equipped with a V-chip system effective on January 1, 2000, so some older television sets do not contain a V-chip. See 47 C.F.R. § 15.120(b). Moreover, the V-chip requirement currently applies only to (i) television broadcast receivers with picture screens 33 centimeters (13 inches) or larger in diameter; (ii) television broadcast receivers with displays in the 16:9 aspect ratio that are 19.8 centimeters (7.8 inches) or greater in height; and (iii) digital television receivers without an associated display device. See id. We note that portable and mobile DTV receivers are either in the market today or under development that do not meet these size thresholds. See http://www.amazon.com/Haier-HLT71-7-Inch-Portable-LCD/dp/tech- data/B001E78UQY/ref=de_a_smtd. There is no data in the record as to whether these receivers are being manufactured with V-chips included. 21 See 47 U.S.C. § 303(x) (added by The Telecommunications Act of 1996, Pub. L. No. 104-104, § 551(c), 110 Stat. 56, 141 (1996)). 22 Id. 23 Section 303(w) of the Communications Act (added by The Telecommunications Act of 1996, Pub. L. No. 104- 104, § 551(b)(1), 110 Stat. 56, 140 (1996)) directed the Commission to “[p]rescribe (1) . . . guidelines and recommended procedures for the identification and rating of video programming that contains sexual, violent, or (continued….) Federal Communications Commission FCC 09-69 7 Parental Guidelines for rating television content, and the Commission recognized the guidelines as meeting the requirements of the 1996 Act.24 12. The TV Parental Guidelines contain both age and content-based ratings. The age-based ratings are: TV-Y (all Children); TV-Y7 (directed to older children – age 7 or older); TV-G (general audience); TV-PG (parental guidance suggested); TV-14 (parents strongly cautioned-may be unsuitable for children under 14); and TV-MA (mature audience only - may be unsuitable for children under 17). The content-based descriptors are: V (violence); FV (fantasy violence in older children’s programming); S (sexual content); D (suggestive dialogue); and L (strong language in programming). The guidelines apply to most television programming, including both broadcast and cable programming, except for news and sports programming and advertisements.25 13. The rating system used by the film industry is different from the TV Parental Guidelines. The current Motion Picture Association of America (“MPAA”) film ratings are: G (general audiences – all ages admitted); PG (parental guidance suggested - some material may not be suitable for children); PG-13 (parents strongly cautioned - some material may be inappropriate for children under 13); R (restricted - under 17 requires accompanying parent or adult guardian); and NC-17 (no one 17 and under admitted). Broadcasters currently transmit in their program stream a table that includes both the TV Parental Guidelines and the MPAA ratings for movies. The V-chip uses both rating scales simultaneously when filtering content.26 In addition, ratings information is displayed in the form of an (Continued from previous page) other indecent material about which parents should be informed before it is displayed to children ... and (2) with respect to any video programming that has been rated, and in consultation with the television industry, rules requiring distributors of such video programming to transmit such rating to permit parents to block the display of video programming that they have determined is inappropriate for their children.” 47 U.S.C. § 303(w). Section 551(e) stated that the provisions codified in Section 303(w) would take effect one year after enactment of the 1996 Act, “but only if the Commission determines ... that distributors of video programming have not, by such date, (A) established voluntary rules for rating video programming that contains sexual, violent, or other indecent material about which parents should be informed before it is displayed to children, and such rules are acceptable to the Commission; and (B) agreed voluntarily to broadcast signals that contain ratings of such programming.” See The Telecommunications Act of 1996, Pub. L. No. 104-104, § 551(e), 110 Stat. 56, 142 (1996). 24 The television industry submitted its TV Parental Guidelines to the Commission in 1997. Initially, the guidelines only contained age categories. See Implementation of Section 551 of the Telecommunications Act of 1996, Video Programming Ratings, Report and Order, 13 FCC Rcd 8232, 8235, n.19 (1998) (“TV Parental Guidelines Order”). The television industry subsequently supplemented the guidelines with content descriptors. See id. The Commission found the guidelines acceptable and found that the industry had agreed to broadcast signals containing the ratings. See id. at 8245-46, ¶¶ 27-31. We note that the Commission in 1998 simply approved the voluntary ratings “rules;” it did not make any determination as to the sufficiency of their application. On the contrary, the Commission emphasized that “to be useful, the rating system must be applied in a consistent and accurate manner,” and that the industry had committed “to independent scientific research and evaluation of the rating system once the [V]-chip is in place.” Id. at 8243, ¶ 22. It expressed its expectation “that the research and evaluation of the rating system, once the system has been in use, will allow for adjustments and improvements,” and it “view[ed] this commitment as an important element of the proposal” before it. Id. In short, the Commission in 1998 simply granted the industry’s request to “give the rating system a fair chance to work.” Id. at 8246, ¶ 32. 25 Cable customers without a set-top box can use the V-chip functionality on their television sets in the same manner as over-the-air viewers. Customers with a set-top box have the option of using parental controls on their television and/or set-top box. Cable set-top boxes often have advanced features beyond the standard V-chip functionality that make use of those controls more desirable. See infra Part II.B. 26 See Common Sense Media Comments at 8. Federal Communications Commission FCC 09-69 8 icon at the beginning of, and often after commercial breaks during, all rated programming.27 14. While this Report specifically addresses advanced blocking technologies available to parents, we also note that the time channeling of indecent or profane broadcasts remains a vital tool for shielding children from exposure to objectionable broadcast content. Congress has directed the Commission to enforce the statutory prohibition on the broadcast of “any obscene, indecent, or profane” language over the public airwaves.28 As directed by Congress, the Commission has adopted regulations specifying that obscene material may not be broadcast at any time29 and indecent material may not be broadcast between the hours of 6 a.m. and 10 p.m.30 The Commission does not regulate indecent or profane31 broadcasts outside that time period. Evidence of the V-chip’s limited efficacy in facilitating parental supervision of children’s exposure to objectionable broadcast content has reinforced the necessity of the Commission’s regulation.32 Moreover, such regulation of broadcast television provides some measure of confidence to parents that their children will not encounter the same kind or amount of objectionable content on that medium that they might find elsewhere.33 1. V-chip Data 15. Congressional concern regarding the use and reliability of the V-chip and the associated TV Parental Guidelines is reflected in the legislative history of the Child Safe Viewing Act. As noted in the Senate Report concerning the Child Safe Viewing Act, studies conducted since the V-chip requirement and TV Parental Guidelines were adopted suggest that the V-chip is not widely used and many parents remain unaware of it.34 16. A 2007 study conducted by the Kaiser Family Foundation, and cited by Congress in the Senate Report, showed that less than half of parents who had purchased a television set since 2000, when the requirement that television sets over 13 inches be equipped with a V-chip went into effect, were 27 See Joint Comments of the National Association of Broadcasters (“NAB”), the National Cable & Telecommunications Association (“NCTA”), and the Motion Picture Association of America (“MPAA”) at 2. 28 18 U.S.C. § 1464. 29 47 C.F.R. § 73.3999(a). 30 47 C.F.R. § 73.3999(b) (adopted pursuant to Public Telecommunications Act of 1992, Pub. L. No. 102-356, § 16(a), 106 Stat. 954). See Action for Children’s Television v. FCC, 58 F.3d 654, 669-670 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). 31 In Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, Memorandum Opinion and Order, 18 FCC Rcd 19859 (EB. 2004), review granted, 19 FCC Rcd 4975, 4981 (2004), the Commission established a “safe harbor” period from 10 p.m. to 6 a.m. during which profane material may be legally broadcast as a narrowly tailored means of vindicating its compelling interest in assisting parents and protecting minors, consistent with the D.C. Circuit’s decision that the same “safe harbor” period for indecent material is consistent with the Constitution. See Action for Children’s Television, 58 F.3d at 667. 32 See, e.g., Complaints Against Various Licensees Regarding Their Broadcast of the Fox Television Program “Married By America” on April 7, 2003, Forfeiture Order, 23 FCC Rcd 3222, 3235 ¶ 36 (2008). 33 See FCC v. Fox Television Stations, Inc., 556 U.S. __, 129 S.Ct. 1800, 1819 (2009) (“The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children.”). 34 See S. Rep. No. 110-268, at 2 (2008), as reprinted in 2009 U.S.C.C.A.N. 2196, 2197. Federal Communications Commission FCC 09-69 9 aware that they had a V-chip.35 A June 2007 national survey of 1,000 parents of children age 18 and younger conducted by Luntz Maslansky Research/Hart Research and commissioned by TV Watch, an organization that opposes government control of TV programming,36 found that 69 percent of parents surveyed were aware of the V-chip.37 Similarly, a November 2005 survey of 513 parents of children ages 2-17 conducted by Russell Research, also commissioned by TV Watch, found that only 49 percent of parents surveyed were aware of the V-chip.38 The Senate Report cites a study conducted from 1999- 2001 by the Annenberg Public Policy Center that also showed that many parents are not aware that they have a V-chip.39 17. Additional studies cited in the Senate report also indicate that few parents use the V-chip. The 2007 Kaiser Family Foundation study showed that only 16 percent of parents have used the V- chip.40 The November 2005 Russell Research Survey commissioned by TV Watch found that five percent of parents used the V-chip.41 A 2004 study conducted by the Kaiser Family Foundation showed that 15 percent of parents have used the V-chip.42 The Annenberg Study conducted from 1999-2001 35 See id. (citing Parents, Children & Media: A Kaiser Family Foundation Survey (June 2007), at 9 (“2007 Kaiser Family Foundation Study”)). 36 TV Watch describes itself as a “broad-based coalition that opposes government control of TV programming and promotes the use of tools like content ratings and parental controls.” See TV Watch, Who We Are, http://www.televisionwatch.org/WhoWeAre/Default.html. TV Watch consists of 27 individuals and organizations, including CBS, the Minority Media and Telecommunications Council, NBC Universal, News Corporation, The Creative Coalition, and the National Academy of Recording Artists, among others. See id. 37 See Luntz Maslansky Strategic Research and Hart Research, TV Watch Survey of Parents Topline, June 2007, http://www.televisionwatch.org/junepollresults.pdf (“June 2007 Luntz Maslansky Research/Hart Research Survey”), at 5. 38 See Press Release, “Survey: Parents Combine Old-Fashioned TV Rules and Latest Blocking Technologies to Manage Kids’ TV,” November 28, 2005, http://www.televisionwatch.org/NewsPolls/PressReleases/PR008.html. 39 See S. Rep. No. 110-268, at 2 (2008), as reprinted in 2009 U.S.C.C.A.N. 2196, 2197 (citing The Annenberg Public Policy Center, Parent’s Use of the V-Chip to Supervise Children’s Television Use, at 2, http://www.annenbergpublicpolicycenter.org/Downloads/Media_and_Developing_Child/Childrens_Programming/2 0030402_Children_and_TV_Roundtable/20030402_ParentsVchip_report.pdf (“Annenberg Study”)). 40 See id. (citing 2007 Kaiser Family Foundation Study). A March 2007 Zogby poll of 1000 adults nationwide commissioned by PTC found that 11 percent of those surveyed used the V-chip or cable box parental controls. See PTC Declares the Industry’s V-Chip Education Campaign a Failure, March 15, 2007, http://parentstv.org/PTC/news/release/2007/0315.asp. The study does not distinguish between the percentage of those surveyed who used the V-chip and the percentage of those surveyed who used cable box parental controls. 41 See Survey: Parents Combine Old-Fashioned TV Rules and Latest Blocking Technologies to Manage Kids’ TV, November 28, 2005, http://www.televisionwatch.org/NewsPolls/PressReleases/PR008.html. The June 2007 Luntz Maslansky Research/Hart Research Survey commissioned by TV Watch found that 67 percent of parents surveyed used “either the V-chip or other parental blocking controls.” See June 2007 Luntz Maslansky Research/Hart Research Survey at 5. The study, however, does not define the term “other parental blocking controls.” Moreover, the study does not distinguish between the percentage of parents who use the V-chip and the percentage of parents who use “other parental blocking controls.” 42 See S. Rep. No. 110-268, at 2 (2008), as reprinted in 2009 U.S.C.C.A.N. 2196, 2197 (citing Parents, Children & Media: A Kaiser Family Foundation Survey (Fall 2004)). Federal Communications Commission FCC 09-69 10 found that only eight percent of the families studied had the V-chip programmed and were using it.43 18. The limited number of parents who have used the V-chip find it beneficial. The 2007 Kaiser Family Foundation Study found that “nearly three out of four parents (71 percent) who have tried the V-Chip say they find it ‘very’ useful, a higher proportion than for any of the media ratings or advisory systems.”44 The November 2005 Russell Research Survey commissioned by TV Watch found that 56 percent of parents surveyed found the V-chip useful.45 19. The Annenberg Study cited in the Senate Report showed that many parents find that “programming the V-chip is a multi-step and often confusing process.”46 The study also stated that “no fewer than five menus must be navigated and parents must move quickly or programming menus disappear.”47 Other studies have also shown that parents consider the V-chip complicated to program and use.48 20. Both children’s advocates and industry commenters cite studies showing low usage of the V-chip to support their arguments as to whether the V-chip or TV Parental Guidelines should be changed. Children’s advocates point to the studies as proof that the V-chip scheme needs to be improved and that more education about the V-chip is needed to increase parental awareness and use of the V-chip.49 21. Some commenters that oppose changes to the V-chip, on the other hand, argue that these studies show that the V-chip is ineffective and unnecessary. They argue that the relatively low level of V-chip use is due not only to some of the asserted problems with the V-chip, but also to the fact that many families use other kinds of parental control tools and parenting strategies to monitor and guide their children’s media use.50 The 2007 Kaiser Family Foundation Study found that 65 percent of parents surveyed said they “closely” monitor their children’s media use.51 While only one in six parents (16 43 See id. (citing Annenberg Study at 2). The study also showed, however, that “[f]amilies who received detailed information about the meaning of the TV ratings and how to use their television’s parental controls feature … were significantly more likely to try the V-chip than families who did not.” Annenberg Study at 3. 44 See 2007 Kaiser Family Foundation Study at 10. The June 2007 Luntz Maslansky Research/Hart Research Survey commissioned by TV Watch found that 83 percent of parents surveyed were satisfied with the effectiveness of the V-chip or “other blocking tools” in limiting inappropriate television programming available to children in the home. See June 2007 Luntz Maslansky Research/Hart Research Survey at 5. The study, however, does not define the meaning of the term “other blocking tools.” Moreover, the study does not distinguish between the percentage of parents who found the V-chip effective and the percentage of parents who found “other blocking tools” effective. 45 See Survey: Parents Combine Old-Fashioned TV Rules and Latest Blocking Technologies to Manage Kids’ TV, November 28, 2005, http://www.televisionwatch.org/NewsPolls/PressReleases/PR008.html. 46 See S. Rep. No. 110-268, at 2 (2008), as reprinted in 2009 U.S.C.C.A.N. 2196, 2197 (citing Annenberg Study at 3). 47 See Annenberg Study at 3. 48 See Scantlin, R.M., Jordan, A., Families Experiences With the V-chip: An Exploratory Study, The Journal of Family Communication, 6(2) (2006) at 139-159. Parents must navigate five screens in order to engage the V-chip as a blocking tool. Id. 49 See, e.g., Children’s Media Policy Coalition (“CMPC”) Comments at iii; Common Sense Media Comments at 8; Smart Television Alliance Reply at 1. 50 See, e.g., Comments of Center for Democracy and Technology (“CDT”) at 7; CEA Comments at 7-8, 15; PFF Comments at 19-20. 51 See 2007 Kaiser Family Foundation Study at 1. Federal Communications Commission FCC 09-69 11 percent) reported they had ever used the V-chip, parents said they used a variety of other tools to help them monitor their children’s media use, including setting rules about when children can use media and what channels they can watch, keeping the TV and/or computer in a public space in the home, or blocking TV channels through their cable service.52 22. The 2007 Kaiser Family Foundation Study also found that the main reason parents had not used the V-chip is that an adult is usually nearby when their children watch TV.53 The June 2007 Luntz Maslansky Research/Hart Research Survey commissioned by TV Watch found that 73 percent of parents monitored what their children watch on television.54 The November 2005 Russell Research Survey commissioned by TV Watch found that 63 percent of parents surveyed watch television with their children and 61 percent personally restrict the television shows their children are allowed to watch as a way to avoid exposure to inappropriate content.55 According to data collected in 2004 by the U.S. Census Bureau, 47 percent of teenagers were subject to restrictions imposed by their parents on what, when, and for how long they watched television, up from 40 percent in 1994.56 Conversely, a 2005 survey of children – rather than parents – concluded that parents do not always enforce rules about television use. According to the survey conducted by the Kaiser Family Foundation, 46 percent of children said their parents had rules about television viewing, but only 20 percent said the rules were enforced most of the time and 23 percent said the rules were enforced some, little, or never.57 23. A number of commenters assert that the rate of use of the V-chip as well as other parental controls should be considered in light of the number of households that might need or want these tools.58 According to the Progress and Freedom Foundation (“PFF”), less than 32 percent of households have children and in at least half of those homes the children are either above or below the age when parental control technologies are generally useful.59 52 See id. at 1, 8. 53 See id. at 10. 54 See June 2007 Luntz Maslansky Research/Hart Research Survey at 3. 55 See Survey: Parents Combine Old-Fashioned TV Rules and Latest Blocking Technologies to Manage Kids’ TV, November 28, 2005, http://www.televisionwatch.org/NewsPolls/PressReleases/PR008.html. 56 See U.S. Census Bureau, Parents More Active in Raising Their Children; More Children Get Television Restrictions, Oct. 31, 2007, available at http://www.census.gov/Press- Release/www/releases/archives/children/010850.html. The study also found that (i) 68 percent of three-to-five-year- olds were subject to restrictions imposed by their parents on what, when, and for how long they watched television, up from 54 percent in 1994; and (ii) 71 percent of six-to-eleven-year-olds were subject to restrictions imposed by their parents on what, when, and for how long they watched television, up from 60 percent in 1994. See U.S. Census Bureau, A Child’s Day: 2004 (Selected Indicators of Child Well-Being), at Table D12 (2007), available at http://www.census.gov/population/socdemo/well-being/2004_detailedtables/04tabD12.xls. 57 See Donald F. Roberts, Ulla G. Foehr, and Victoria Rideout, Generation M: Media in the Lives of 8-18Year-Olds, Kaiser Family Foundation (March 2005) at Appendix 3.3. 58 See CDT Comments at 7 (the low level of V-chip use reflects the reality that many parents are less concerned about television content than some advocacy groups are and many families have other parenting strategies to monitor their children’s television use). See also PFF Comments at 8-10, 19-20; CEA Reply at 6. 59 See PFF Comments at 8-16. PFF has produced several reports providing comprehensive surveys of parental controls. See, e.g., Adam Thierer, Parental Controls & Online Child Protection: A Survey of Tools and Methods (Summer 2009) (available at http://www.pff.org/parentalcontrols/). Federal Communications Commission FCC 09-69 12 2. Potential Improvements to the V-chip 24. Commenters that advocate changes to the V-chip scheme focus largely on changes to the television ratings system. The V-chip’s effectiveness depends on accurate program ratings. In general, these commenters argue for improvements in the way the TV Parental Guidelines are applied, the addition of new content descriptors to broaden the scope of the content that can be filtered, and steps to ensure that the V-chip can function effectively with multiple, independent ratings systems. Implementation of most of the proposed changes would require coordination among broadcasters, ratings providers, and standards-setting organizations. Commenters opposed to changes to the V-chip generally assert that, in light of the continuing move away from broadcast television to MVPDs and the Internet, both of which can support a broad array of filtering tools and rating schemes, a redesign of the V-chip scheme at this time is unwarranted and resources should be allocated instead toward educational efforts about the V-chip and other parental empowerment tools.60 a. TV Parental Guidelines 25. As discussed above, the broadcast, cable, and movie industries voluntarily created the TV Parental Guidelines for rating television content. The 2007 Kaiser Family Foundation study raised concerns that parents lack a basic understanding of the TV Parental Guidelines. The study showed that, although more than 80 percent of parents have heard of the TV ratings, most do not understand what they mean.61 Only 30 percent of parents with children between two and six could name any of the ratings used for children’s programs (TV-Y, TV-7, or TV-G).62 Only 11 percent of parents with children in this age range knew that the content rating FV had anything to do with violence, and nine percent thought it meant “family viewing.”63 While more than half of parents of older children that had heard of the TV ratings understood the meaning of the TV-14 and TV-MA age-based ratings and the “V” content descriptor, only 36 percent of these parents understood that “S” designates a show with sexual content and only two percent knew that “D” indicates suggestive dialogue.64 A March 2007 Zogby poll of 1000 adults nationwide commissioned by the Parents Television Council (“PTC”) found that only 8 percent of those surveyed correctly identified all of the content descriptors.65 Some studies, however, indicate that parents who use the ratings find them useful. A 2007 Kaiser Family Foundation study concluded that, among parents who use ratings, 53 percent found the movie ratings very useful and 49 percent found the TV ratings very useful.66 The November 2005 Russell Research Survey commissioned by TV Watch found that 96 percent of parents surveyed are familiar with the ratings and 85 percent find them useful.67 26. To increase awareness of the TV Parental Guidelines, the National Association of 60 See, e.g., CDT Comments at 8. 61 See 2007 Kaiser Family Foundation Study at 8. 62 See id. 63 See id. 64 See id. at 9. An earlier study conducted by the Annenberg Public Policy Center found that only six percent of parents studied could name one of the ratings for children’s programs (TV-Y, TV-Y7, or FV) and only four percent correctly identified the meaning of the “D” content rating. See Annenberg Study at 3. 65 See PTC Declares the Industry’s V-Chip Education Campaign a Failure, March 15, 2007, http://parentstv.org/PTC/news/release/2007/0315.asp. 66 See 2007 Kaiser Family Foundation Study at 9. 67 See Survey: Parents Combine Old-Fashioned TV Rules and Latest Blocking Technologies to Manage Kids’ TV, November 28, 2005, http://www.televisionwatch.org/NewsPolls/PressReleases/PR008.html. Federal Communications Commission FCC 09-69 13 Broadcasters (“NAB”), the National Cable Television Association (“NCTA”), and MPAA explain that programmers have increased the size and frequency of the onscreen ratings icon in response to concerns about its visibility.68 NAB, NCTA, and MPAA explain that, if the program is more than one hour in length, the icon will reappear at the beginning of the second hour.69 In addition, they state that many broadcast and cable networks display the ratings icon after each commercial break to alert viewers of the TV rating throughout the program.70 Comcast notes that the networks it owns or manages, such as PBS Kids Sprout, G4, E!, Style, Golf Channel, Versus, and the Comcast SportsNets, utilize larger and more frequent ratings icons than are commonly used by other networks.71 27. Several commenters contend that the current V-chip scheme has not achieved its full potential in part because the TV Parental Guidelines are confusing and are applied inaccurately and inconsistently to television programming.72 Children’s Media Policy Center (“CMPC”), Morality in Media, and the PTC cite studies criticizing the industry for failing to use content descriptors for some material containing violence, sexual behavior, sexual dialogue, and adult language.73 Based on a review of 546 hours of prime time programming on 608 individual programs on six broadcast networks (ABC, CBS, Fox, NBC, CW, and MyNetworkTV) during the November 2006 and February 2007 sweeps period, PTC concluded that 67 percent of the shows reviewed that contained potentially offensive content lacked one or more of the appropriate content descriptions.74 CMPC asserts that the prevalence of inconsistent and inaccurate age-based and content-based ratings should not be surprising as networks and distributors assign these ratings to their own programs and have an economic incentive to underrate programs to avoid the lower advertising revenues typically commanded by more restrictive ratings.75 While the record does not reflect any studies finding that viewers stopped using the V-chip after determining that the ratings were inaccurate, some commenters argue that the alleged lack of accuracy in 68 See NAB/NCTA/MPAA Comments at 9. See also TV Parental Guidelines Order, 13 FCC Rcd at 8243, ¶ 24 (“Under the TV Parental Guidelines, rating icons and descriptors will be displayed for 15 seconds at the beginning of a program . . . . Also, the size of the icon has been increased from the initial proposal so that it will occupy more than 40 scan lines on the television screen.”). 69 See NAB/NCTA/MPAA Comments at 9. 70 See id. 71 See Comcast Comments at 4. See also Cox Comments at 6 and Appendix B. 72 See, e.g., CMPC Comments at 6; Morality in Media Comments at 1; PTC Reply at 1, 3. 73 See CMPC Comments at 21 (citing Dale Kunkel, et al., Deciphering the V-chip: An Examination of the Television Industry’s Program Rating Judgments, 52 J. Commc’ns 112, 136 (2002)). See also PTC Reply at 3 (citing Parents Television Council, The Ratings Sham II, April 16, 2007, http://www.parentstv.org/PTC/publications/reports/ratingsstudy/RatingsShamII.pdf (“2007 PTC Report”)); Morality in Media Comments at 1 (citing 2007 PTC Report and Toni Fitzgerald, Two Profs Beat Up on Kids TV Ratings: Study Finds More Physical Aggression in TV-Y and TV-7, Media Life Magazine (March 6, 2009)). 74 See 2007 PTC Report at 1. The study also concluded that 54 percent of shows containing suggestive dialogue lacked the “D” descriptor; 63 percent of shows containing sexual content lacked the “S” descriptor; 42 percent of shows containing violence lacked the “V” descriptor; and 44 percent of shows containing foul language lacked the “L” descriptor. See id. 75 See CMPC Comments at 6. See also Morality in Media Comments at 1 (V-Chip ratings system is a “classic case of putting the fox in charge of the henhouse”). Federal Communications Commission FCC 09-69 14 the television ratings is one factor limiting the use and effectiveness of the V-chip.76 28. Although the television industry established a TV Parental Guidelines Monitoring Board (“Monitoring Board”) to ensure that the rating guidelines are applied accurately and consistently, CMPC and PTC argue that the Monitoring Board has very little real authority and fails to take action on many complaints.77 These commenters point out that 18 of the 24 Monitoring Board members are associated with the industry.78 CMPC states that the Monitoring Board passes most complaints on to the appropriate broadcast network and only takes action after a significant number of complaints have been lodged against a specific program episode.79 CMPC and PTC argue that increased transparency and public involvement in the processes of the Monitoring Board would improve the way ratings are applied.80 Among other things, these commenters propose that meetings of the Monitoring Board could be made open to the public and that the Monitoring Board should publicly disclose complaints regarding applications of the ratings and how they have been resolved.81 These commenters also suggest that the Commission play a role in ensuring that parents are aware of the Monitoring Board and its procedures, perhaps by requiring broadcasters to air information or public service announcements to educate parents about the Monitoring Board.82 29. The NAB, NCTA, and MPAA state that the Monitoring Board meets regularly to review complaints and, “when there are widespread and verifiable complaints about a particular show’s rating, may decide whether that rating is appropriate.”83 These commenters state that the Monitoring Board has redoubled its efforts to ensure that ratings are applied consistently and recently took steps to improve consistency in the application of content descriptors.84 NAB, NCTA, and MPAA state that they are open 76 See PTC Reply Comments at 3 (“The clear and unavoidable conflicts of interest that arise from entities producing and rating their own content have yielded a deeply flawed and largely inaccurate ratings system. In fact, that alone may be a significant cause of parents’ lack of adoption of the current system.”); CMPC Comments at 6. 77 See CMPC Comments at 6-7; PTC Reply at 5-6. 78 See CMPC Comments at 6-7. See also PTC Reply at 4. 79 See CMPC Comments at 7. 80 See id. at 9; PTC Reply at 3-5. 81 See CMPC Comments at 9; PTC Reply at 5. 82 See CMPC Comments at 9; PTC Reply at 5. 83 NAB/NCTA/MPAA Comments at 9. According to these commenters, the Monitoring Board has received widespread and verifiable complaints about only a handful of programs since creation of the guidelines. See id. at 9 n.21. NAB, NCTA, and MPAA also note that ratings are applied on an episode-by-episode basis, so different shows within a series can have different ratings. See id. at 7. In addition, programs can be edited differently depending upon the time of day they are aired, which could result in different ratings for the same program. See id. 84 See id. at 9-10. According to NAB, NCTA, and MPAA, industry standards and practices executives have had regular meetings and calls to review ratings issues, which have resulted in a more common and consistent understanding of how ratings should be applied. See id. at 9. Among other things, these conversations revealed that companies had been applying the content descriptor portion of the TV ratings differently. Some companies were applying the content descriptors to explain why a program was assigned a particular age-based rating. For example, if a program was rated TV-PG because it contained moderate levels of violence and strong language, those companies added a “V” and an “L” content descriptor to the age-based rating. Other companies were applying a content descriptor only if the program contained more than a moderate level of the specific content at issue. For example, these companies rated a program TV-PG with no descriptor if it contained moderate levels of violence, language, sexual dialogue, and/or sexual activity. These companies would add a content descriptor only when specific content was at the high end of the moderate range. See id. at 10. After working with the Monitoring Board, (continued….) Federal Communications Commission FCC 09-69 15 to ideas about how to promote and improve the work of the Monitoring Board.85 They note that the Monitoring Board’s website already invites public comments and complaints and that the Commission provides information about the Monitoring Board on its website, including a link to the TV Parental Guideline website.86 30. CFIRS suggests using the V-chip for additional “black listing,” i.e., adding additional content descriptors to enable the V-chip to block programs based on certain content.87 CFIRS suggests that additional descriptors could be added for use of alcohol, tobacco, and illegal drugs to permit parents to filter programming with this content.88 NAB, NCTA, and MPAA, however, argue that adding new content descriptors to the V-chip scheme would increase the complexity of the ratings and thereby cause new confusion among parents and decrease the rate of use and effectiveness of the V-chip.89 31. Further study is required to determine the extent to which improving the accuracy and transparency of the existing TV Parental Guidelines would make the V-chip more effective and thereby increase its use by parents. The Commission intends to explore these and other issues in a forthcoming NOI.90 Among other things, we intend to consider: (i) whether action by the Monitoring Board, including through its handling of complaints about inappropriate ratings, might improve the Guidelines’ accuracy and transparency; (ii) whether increasing the size of the ratings icon on the screen, lengthening the time the icon remains on the screen, and playing an aural tone when the icon appears would increase awareness of the Guidelines; (iii) whether adding more content descriptors to the TV ratings would yield benefits for parents or lead to greater confusion; and (iv) whether and to what extent alternative ratings systems have the potential to provide additional options for parents to control their children’s television viewing.91 b. Rating Advertising 32. Some commenters advocate that the existing V-chip scheme be modified to take account of inappropriate television commercials and embedded advertising content so these could be blocked using the V-chip.92 According to CMPC, studies show that many parents are as concerned about inappropriate advertising content as they are about inappropriate program content.93 The Annenberg Study conducted from 1999-2001 found that parents were concerned that the V-chip did not block (Continued from previous page) the industry agreed to apply the content descriptors in a consistent manner to explain age-based ratings, which NAB, NCTA and MPAA state has resulted in the use of many more descriptors in programming today. See id. 85 See id. at 3. 86 See id. at 8. See www.fcc.gov/parents (containing a link to www.tvguidelines.org – the TV Parental Guidelines website, which contains information about how to contact the Monitoring Board to file a complaint). 87 See CFIRS Comments at 3. 88 See id. 89 See NAB/NCTA/MPAA Reply at 9. 90 See infra section XI. 91 See infra section II.A.2.b. 92 See CMPC Comments at 9-13. The Coalition for Independent Ratings Services (“CFIRS”) supports including content descriptors in commercials that promote alcohol or certain prescription drug use. See CFIRS Reply at 5. See also PTC Reply at 6-7 (noting its belief that advertising could be rated with minimal effect on advertising revenue). 93 See CMPC Comments at 10. Federal Communications Commission FCC 09-69 16 commercials and promos for upcoming programs.94 CMPC argues that, although movie studios have taken some steps to limit advertisements for R-rated movies viewed by children under 17, these efforts have not been sufficient.95 CMPC contends that assigning ratings to commercials so they can be blocked using the V-chip would give parents greater control and would lead networks and distributors to make better decisions regarding which commercials are appropriate given a program’s intended audience.96 CMPC also submits that parents are concerned about product placement and embedded advertising in children’s programming and that the V-chip could be used to address these concerns if networks and distributors added a new content descriptor to the program ratings identifying programs with this advertising content.97 CMPC suggests that including a content descriptor for embedded advertising would not be burdensome as broadcasters and cablecasters are already required to make sponsorship announcements in programs for which consideration is received.98 33. Media industry and advertising commenters strongly oppose expanding the V-chip to include ratings for advertisements and embedded advertising. These commenters argue that allowing consumers to block advertisements could undermine a critical source of economic support for television programming,99 and that expanding the V-chip scheme to require additional ratings and possibly ratings icons appearing on the screen would increase consumer confusion regarding the ratings.100 In addition, these commenters assert that rating advertisements would be a serious logistical challenge in light of the number of advertisements aired each day101 and could also pose technical challenges if advertisements were required to be listed in electronic program guides (“EPGs”) in order to be blocked in the same way that programs are blocked using the V-chip.102 Wi-LAN, a company that currently owns patents to V- 94 See Annenberg Study at 4 (“In several focus groups, mothers complained that the V-chip did not block content about which they are concerned – specifically commercials, promos for upcoming television programs and news.”). 95 See CMPC Comments at 10-11. The movie studios have agreed not to advertise R-rated movies during television programs where 35 percent or more of the audience is under 17. See Comments of the Association of National Advertisers (“Advertisers”) at 6-7. However, the Federal Trade Commission has found that this restriction does little to limit ads in television shows viewed by teens because few network and syndicated programs popular with teens have under-17 audiences greater than 35 percent. See CMPC Comments at 11 (citing Federal Trade Commission, Marketing Violent Entertainment to Children: A Fifth Follow-up Review of Industry Practices in the Motion Picture, Music Recording, and Electronic Game Industries (April 2007)). In addition, the Children’s Advertising Review Unit (“CARU”) of the Council of Better Business Bureaus has found that several major film studios have run ads for PG-13-rated movies during programs on Nickelodeon and Cartoon Network viewed by younger children. Id. 96 See CMPC Comments at 11. 97 See id. at 9-10. 98 See id. at 12-13. 99 See Advertisers Comments at 8-11; Advertisers Reply at 13. 100 See Advertisers Reply at 15. 101 See id. at 10; NAB/NCTA/MPAA Reply at 12-13. According to advertisers, there are several hundred thousand new and newly revised TV commercials each year, each of which would have to be examined in person for a rating to be assigned. In addition, commercials often have several variations (60 seconds, 30 seconds, 15 seconds), each of which could have a different rating. See Advertisers Reply at 10. 102 See NAB/NCTA/MPAA Reply at 12-13. According to these commenters, advertisements would have to be treated as programs in order to be blocked using Program and System Information Protocol (“PSIP”), and thus would have to be listed on EPGs, effectively making EPGs unusable. See id. at 12. DTV Innovations states that it is possible to rate commercials in the same way programs are rated, but that due to a limited amount of space in the (continued….) Federal Communications Commission FCC 09-69 17 chip technology, argues that digital V-chip technology is capable of providing blocking technology for commercials without adversely affecting EPG functionality.103 34. With respect to using the V-chip to filter product placements and other embedded advertising techniques, commenters note that the Commission already has a separate proceeding on embedded advertising pending and contend that issues related to embedded advertising should be addressed in that proceeding.104 In that proceeding, the Commission noted that embedded advertising in children’s programming would run afoul of its policy requiring broadcasters to use separations or “bumpers” between programming and commercials during children’s programming to help children distinguish between advertisements and program content.105 The Commission also invited comment on what additional steps it should take to regulate embedded advertising in programming directed to children.106 We will address those issues in that proceeding. 35. Economic and technical issues surrounding use of the V-chip to block inappropriate television commercials and embedded advertising warrant further study. The Commission intends to explore these and other issues in a forthcoming NOI. Moreover, with respect to the specific issue of embedded advertising, the Commission is currently conducting a proceeding examining this issue. c. White Listing – Use of Content Descriptors to Select Programming 36. A number of commenters support adding new content descriptors to the V-chip scheme. Some commenters support “white listing.” For example, they propose adding a machine-readable E/I content descriptor to program metadata to permit parents to use the V-chip to affirmatively select educational and informational programs identified by broadcasters with an “E/I symbol.”107 Broadcasters are currently required to identify core children’s educational programs by displaying the (Continued from previous page) EPG to display event titles, introducing commercial ratings would segment the existing guide into multiple segments rendering it unreadable to the consumer. See DTV Innovations Comments at 2. DTV Innovations states that the Advanced Television System Committee (“ATSC”) A/65 specification could be modified to address this issue for new receivers, but that legacy receivers would be a concern. See id. 103 See Letter from Murray Eldon, Director, Communications, Wi-LAN V-chip Corp. to Marlene H. Dortch, Secretary, FCC, MB Docket No. 09-26 (July 24, 2009). Wi-LAN conducted a demonstration for Commission staff of the V-chip capability to block commercials. See id. The demonstration showed a working model that does not treat commercials as separate events under the PSIP standard and does not adversely affect EPG functionality. See id. 104 See Advertisers Comments at 11 n.17. See also Sponsorship Identification Rules and Embedded Advertising, Notice of Inquiry and Notice of Proposed Rule Making, 23 FCC Rcd 10682 (2008) (“Sponsorship Identification NPRM”). 105 See Sponsorship Identification NPRM, 23 FCC Rcd at 10692, ¶ 6 and 10691-92, ¶ 16. 106 See id. at 10691-92, ¶ 16. 107 See CMPC Comments at 13-14; Common Sense Media Comments at 8-9; Smart Television Alliance Comments at 4-5. Among other requirements, the Children’s Television Act of 1990 (“CTA”) requires the Commission, through its review of television broadcast license renewal applications, to consider whether commercial television licensees have served “the educational and informational needs of children.” See Children’s Television Act of 1990, Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S.C. § 303b. To implement the CTA, the Commission adopted a processing guideline pursuant to which broadcasters that aired at least three hours per week of programming “specifically designed” to serve the educational and informational needs of children ages 16 and under (otherwise known as “core” programming) could receive staff-level approval of the CTA portion of their license renewal applications. See 47 C.F.R. § 73.671. Federal Communications Commission FCC 09-69 18 symbol “E/I” on the screen throughout the program,108 but there is no requirement that this information be embedded in the program stream for use with the V-chip. Commenters supporting this change assert that allowing parents to use the V-chip to select desirable programming rather than simply blocking objectionable programming would increase the V-chip’s effectiveness as a parental control mechanism.109 37. A number of commenters assert that in light of the relatively low use of the V-chip and the increasing number of alternative parental control tools available to MVPD subscribers, further investment in the V-chip is unwarranted.110 The Consumer Electronics Association (“CEA”) states that the current E/I icons that appear on core children’s programs are displayed through different mechanisms than the V-chip rating scheme.111 NAB, NCTA, and MPAA maintain that parents would find it cumbersome and impractical to use the V-chip and an E/I descriptor to select programming affirmatively as it would require that a parent block all other programs except those designated E/I.112 38. Further study is needed to determine whether and, if so, how to revise the TV Parental Guidelines to permit parents to use the V-chip as an affirmative tool to “white list,” or select, educational and informational programming for their children. The Commission intends to explore these and other issues in a forthcoming NOI. Among other things, we intend to consider the feasibility of labeling E/I content in the Genre Descriptor to allow television manufacturers to offer sets capable of reading and responding to the E/I descriptor.113 d. Independent and Multiple Rating Systems 39. Section 2(b) of the Child Safe Viewing Act directed the Commission to examine advanced blocking technologies that “operate independently of ratings pre-assigned by the creator of such video or audio programming”114 and that enhance the ability of a parent to protect his or her child from indecent or objectionable programming “as determined by such parent.”115 Almost all commenters that address this issue support the concept of allowing parents to choose from among multiple independent ratings systems to help them identify programming that best reflects their personal views of what television content is appropriate for their children.116 Commenters also generally agree that there are a number of independent providers currently offering ratings for television content that have websites 108 47 C.F.R. § 73.671(c)(5). 109 See, e.g., CMPC Reply at 7-8; CFIRS Comments at 3; Common Sense Media Comments at 8-9. 110 See, e.g., CDT Comments at 7-8; DISH Network Comments at 2, 5; Motorola Comments at 3. 111 See CEA Reply at 8. According to CEA, the ATSC system supports labeling of E/I content through the Genre Descriptor defined in the A/65 PSIP standard. See id. 112 See NAB/NCTA/MPAA Reply at 11-12. 113 The ATSC A/65C PSIP standard supports labeling E/I content through the Genre Descriptor, but not within the content advisory descriptor (which contains the ratings data). See CEA Reply at 8. While carriage of the Genre Descriptor is mandatory in the A/65C PSIP standard, neither the standard nor the Commission’s rules presently require labeling of E/I content in the Genre Descriptor. See 47 C.F.R. § 73.682(d) (incorporating by reference ATSC Doc. A/65C, ATSC Program and System Information Protocol for Terrestrial Broadcast and Cable, Revision C With Amendment No. 1, dated May 9, 2006). 114 Child Safe Viewing Act at Section 2(b)(4). 115 Id. at Section 2(b)(5). 116 See, e.g., CMPC Comments at 8; Common Sense Media Comments at 7-8; PFF Comments at 138. Federal Communications Commission FCC 09-69 19 where parents can access information about program recommendations.117 CMPC identifies four organizations – PTC, Common Sense Media, Plugged In Online, and Moral Metric – that have developed their own alternative rating systems for television programming.118 The CFIRS website provides links to 13 independent providers that offer some form of rating, blocking, or filtering of content for television, as well as numerous providers of similar services for movies, video games, music, and the Internet.119 In addition, a number of independent ratings providers have entered into partnerships with MVPDs to increase consumer access to these alternative ratings. For example, Common Sense Media has entered into agreements with certain MVPDs to make its ratings available to their subscribers.120 Comcast makes Common Sense Media’s reviews of movies and television programs available on its video on demand (“VOD”) service and on Comcast.net.121 Cox Communications, Inc. (“Cox”) links to Common Sense Media through its “Take Charge Parents” web page.122 DIRECTV makes Common Sense Media’s programming information and reviews available through its DIRECTV.com website, where a parent can access the DIRECTV programming guide and click on any television show or movie title to link directly to Common Sense Media’s information on the program.123 After reviewing the ratings, a parent can return to the menu to access DIRECTV’s “Locks and Limits” program and block a program that is undesirable.124 For programming that is appealing for family viewing, parents can use DIRECTV’s “DVR Scheduler” function by simply clicking on the “Record to Receiver” tab and scheduling the program to record on their home DVRs.125 DIRECTV anticipates that, rather than going through the DIRECTV.com website, in the future its subscribers will be able to access the Common Sense Media ratings directly through the on-screen programming guide.126 40. While there are many independent ratings systems available to parents for viewing online and through pay television services, at this time the V-chip still operates only with the TV Parental Guidelines and the MPAA ratings. Three elements are required in order for a rating system to be used to block or select programming using the V-chip: (i) programmers must rate their content according to the rating system; (ii) broadcasters and other program distributors must transmit the program ratings in the program streams; and (iii) receivers must be able to process the ratings. All three elements are in place now for the TV Parental Guidelines, but would need to be implemented for any new or revised ratings system, including the addition of any new content descriptor(s). 117 See, e.g., Comcast Comments at 9; CEA Comments at 7, 10; DISH Network Comments at 6; Smart Television Alliance Comments at 2. 118 See CMPC Comments at 8. Common Sense Media notes that its website had over 7 million visitors in 2008. See Common Sense Media Comments at 7. 119 See www.independentratings.org. The CFIRS site states that its goal is to provide a link to all known independent ratings providers and requests information about other providers that may not be listed. A list of organizations that provide ratings is also attached as Appendix 2 to the CFIRS Comments. See also PFF Comments at 138-142 (list of independent media rating sources). 120 See Comcast Comments at 6; NCTA Supplemental Comments at 11-12; DIRECTV Comments at 10-11. 121 See Comcast Comments at 7. 122 See NCTA Comments at 12 (citing http://www.cox.com/takecharge/partners.asp). 123 See DIRECTV Comments at 11. 124 See id. 125 See id. 126 See id. Federal Communications Commission FCC 09-69 20 41. In the NOI, the Commission asked whether, if multiple rating systems were offered in conjunction with the V-chip, parents could use more than one system at a time and how they could move from one system to the other.127 Common Sense Media points out that the V-chip currently operates with two separate ratings systems, the TV Parental Guidelines and the MPAA movie ratings, and that parents can program the V-chip to apply both ratings to content based on rankings selected by parents.128 Common Sense Media claims that additional independent ratings could be added to this system and would co-exist with the current ratings.129 For example, the V-chip could be programmed to block any content given a Common Sense Media rating of “off for age 13 and above” or an MPAA rating of PG- 13; both filters would work in concert to block objectionable programming.130 DTV Innovations disagrees, stating that an issue could arise when two networks send different ratings for the same program.131 Although programs currently have either a TV Parental Guidelines or MPAA rating, they both come from the same table. Adding an additional ratings system may add complexity to the system and great care will be needed to avoid confusing the user. Moreover, broadcasters claim that it would be infeasible to provide third-party ratings systems with advance copies of network programming.132 They also argue that providing advance copies would raise competitive and piracy concerns.133 42. As noted in the NOI, the Commission has generally endorsed the concept of an “open V- chip,” one that can accommodate ratings other than the existing TV Parental Guidelines, by recognizing that the ability to modify the current rating system is beneficial and by requiring that most television sets have the capacity to respond to changes in the TV ratings.134 Ratings systems are carried in Rating Region Tables (“RRTs”). ATSC, which maintains the list of rating region assignments, originally assigned 0x01 (RRT 1) to the United States. RRT 1 carries the current U.S. rating system (the TV Parental Guidelines and MPAA ratings). Prior to the Second DTV Periodic Report and Order, television sets were designed to convey only the ratings information contained in RRT 1. In the Second DTV Periodic Report and Order, the Commission stated that “[w]e generally believe that the ability to modify the current content advisory system is beneficial” and that “to ensure the ability to modify the content advisory system, receivers must be able to process newer RRT version numbers or use new rating region codes as suggested by ATSC.”135 The Commission also revised Section 15.120(d)(2) to, among other 127 See NOI, 24 FCC Rcd at 3348, ¶ 21. 128 See Common Sense Media Comments at 8. 129 See id. 130 See id. 131 See DTV Innovations Comments at 2-3. 132 See Letter from Anne Lucey, CBS, to Marlene H. Dortch, Secretary, FCC, MB Docket No. 09-26 (Aug. 11, 2009), at 1-2 (“Broadcasters Aug. 11 ex parte”). 133 See id. 134 See NOI, 24 FCC Rcd at 3348, ¶ 21 and, supra, ¶ 11, note 20. See also Second Periodic Review of the Commission’s Rules and Policies Affecting the Conversion to Digital Television, Report and Order, 19 FCC Rcd 18279, 18347-48, ¶ 156 (2004) (“Second DTV Periodic Report and Order”); Children’s Television Obligations of Digital Television Broadcasters, Report and Order and Further Notice of Proposed Rulemaking, 19 FCC Rcd 22943, 22965, ¶ 63 (2004) (“We also believe that DTV technical standards should not foreclose the option of using V-Chip technology to support multiple rating systems.”). 135 Second DTV Periodic Report and Order, 19 FCC Rcd at 18347-48, ¶ 156. In its Reply Comments, CEA urges the Commission to resolve an issue pending in the Commission’s Second DTV Periodic Review proceeding regarding the downloadable V-chip requirement. See CEA Reply at 11-12. CEA filed a Petition for Reconsideration of the Second DTV Periodic Report and Order arguing that receivers should be required to respond (continued….) Federal Communications Commission FCC 09-69 21 things, state that “[d]igital television receivers shall be able to respond to changes in the content advisory system.”136 Subsequent to the adoption of the Second DTV Periodic Report and Order, the ATSC reserved rating region code 0x05 (RRT 5) for an unspecified alternative U.S. rating system or systems. Because the Commission has required that most television receivers in the U.S. be designed to respond to downloadable ratings, televisions built since the requirement became effective can receive information broadcast over the air that could be used to present new or alternative ratings schemes. To date, however, the rating parameters for RRT 5 have not been defined. Before a new ratings scheme can be offered by a third party, broadcasters would have to agree to use the alternative rating system in their programming. It also would be necessary for various industries to reach a common understanding about the rating system or systems to be used in conjunction with RRT 5. This process may require the involvement of the ATSC and CEA, which share responsibility for standards-setting for RRT 5,137 in addition to broadcasters, rating service providers, content providers, and receiver manufacturers.138 43. A number of commenters express concern about whether RRT 5 provides sufficient space in receivers to extend the current television ratings and/or to process multiple ratings systems. For example, the National Hispanic Media Coalition supports expansion or revision of the rating system and translation of the system into Spanish.139 As discussed above, CFIRS suggests using the V-chip for additional “black listing” of programs containing certain content, such as use of alcohol, tobacco, and illegal drugs.140 CFIRS argues that adding content descriptors in English and Spanish for E/I programming, tobacco use, and substance abuse (drugs and alcohol) would require two-thirds of the space in RRT 5, thus making it difficult to add a new rating system in both English and Spanish.141 According to CFIRS, simply translating the existing TV Parental Guidelines into Spanish would use up almost all of the additional space allocated for ratings, leaving almost no space for any new ratings content.142 Thus, CFIRS argues that receivers should be required to respond to additional RRTs.143 CEA disagrees, arguing that RRT 5 could hold an additional four or five bilingual dimensions (i.e., content (Continued from previous page) to only one additional RRT (specifically, RRT 5) in addition to RRT 1. See CEA, Petition for Reconsideration and/or Clarification, MB Docket No. 03-15 (Nov. 3, 2004). CFIRS and other parties have filed oppositions to the CEA Petition, arguing that television sets should not be limited to only one additional RRT and that more capacity is needed to accommodate additional and improved ratings systems. See Coalition for Independent Ratings Services, Opposition and Comments, MB Docket No. 03-15 (Jan. 21, 2005); Tim Collings and Tri-Vision International Ltd., Opposition, MB Docket No. 03-15 (Nov. 22, 2004). The CEA Petition remains pending. As we stated in the NOI, the specific issue raised in the CEA Petition regarding RRTs will be resolved in the Second DTV Periodic Review proceeding. See NOI, 24 FCC Rcd at 3348, ¶ 21 n.59. 136 See 47 C.F.R. § 15.120(d)(2). 137 CEA states that it is the standards organization responsible for RRT 5 and is an ANSI-accredited standards development organization that practices open standards development processes and procedures. See CEA Reply at 12. CEA further states that all parties interested in helping to define the ratings parameters for RRT 5 have been long-invited to participate in the process. See id. at 12-13. 138 See CEA Comments at 19. According to CEA, these parties would need to encode rating schemes into RRT 5 so that the resulting configuration screens for blocking preferences are sensible and usable by consumers. Id. 139 See National Hispanic Media Coalition Comments at 2. 140 See CFIRS Comments at 3. 141 See CFIRS Comments at 5-6 and Appendix 1. 142 See id. 143 See id. at 5. See also Coalition for Independent Ratings Services, Opposition and Comments, MB Docket No. 03-15 (Jan. 21, 2005), at 7, 9-11. Federal Communications Commission FCC 09-69 22 descriptors) beyond the three (E/I, tobacco, substance abuse) identified by CFIRS.144 According to CEA, RRT 5 provides enough capacity to support multiple ratings schemes, and concerns about potential capacity constraints and the need to add another RRT for use for program ratings are premature and unfounded.145 The issue of the number of RRTs that television sets are required to process will be decided in a separate proceeding.146 44. With respect to the transmission of ratings in the program stream, some commenters assert that most broadcasters currently do not have the required software to be able to transmit the new ratings table, RRT 5.147 DTV Innovations states that it has a software patch that is currently available for use by stations to upgrade their facilities to permit transmission of RRT 5.148 DTV Innovations, CMPC, and CFIRS propose that the Commission require a live field test of the ability of broadcasters to transmit new ratings information and of digital receivers to process new RRT version numbers.149 We note that because a new ratings system has not yet been identified for RRT 5, it is unclear whether broadcasters are currently required to transmit, or have the ability to transmit, that ratings region table.150 45. Some commenters call on the Commission to provide an incentive to broadcasters to carry alternative ratings in their program streams so that the V-chip can be used to filter programs based on these ratings.151 The National Hispanic Media Coalition asserts that this is a necessary step for any alternative rating system to be incorporated in the V-chip scheme.152 PTC states that no broadcaster has yet agreed to carry the alternative ratings system PTC or other organizations have developed.153 Broadcasters agreed voluntarily to transmit the current television ratings.154 PFF and Advertiser commenters, among others, argue that a government mandate requiring broadcasters to carry particular ratings would raise First Amendment concerns.155 In particular, broadcasters, including the major 144 See CEA Reply at 13. 145 See id. 146 See supra note 135. 147 See CFIRS Comments at 6; DTV Innovations Comments at 2. 148 DTV Innovations states that it has developed a software patch for stations that provide the capability to transmit new ratings information and will provide the patch for “no charge” to its 300 existing station clients. See DTV Innovations Comments at 2. 149 See DTV Innovations Comments at 2. See also CMPC Comments at 8 (urging the Commission to ensure that DTV receiver manufacturers are in compliance with the mandate that the V-chip be able to respond to changes in the content advisory system); Letter from Dominic J. Perri, Executive Director, CFIRS to Marlene H. Dortch, Secretary, FCC, MB Docket No. 09-26 (July 1, 2009). 150 In the Third DTV Periodic Report and Order, 23 FCC Rcd 2994 (2007), the Commission stated that it “expect[s] broadcasters to fully implement PSIP to the extent that ATSC A/65C requires.” See id. at 3081, ¶ 188. ATSC A/65C states: “An RRT defining the rating system for a given region shall be included in the TS (transport stream) if a content advisory descriptor in use refers to that region…”. See ATSC A/65C at 22. Although RRT 5 has been assigned for use in the U.S, because it does not currently contain ratings information, it is unclear whether it is “in use” within the meaning of A/65C. 151 See CMPC Comments at 8; PTC Reply at 5. 152 See National Hispanic Media Coalition Comments at 2-3. 153 See PTC Reply at 5. 154 See TV Parental Guidelines Order. 155 See, e.g., PFF Comments at 108-109; Advertisers Reply at 13-15. Federal Communications Commission FCC 09-69 23 networks, assert that “any government mandate that would require broadcasters and other content providers to carry, use or adopt a third party ratings system would constitute compelled speech in violation of the First Amendment.”156 CFIRS argues that the lack of certainty about the implementation of alternative or new ratings systems, not only in over-the-air broadcasts but also in cable, satellite, and TV-tuner-equipped computers, will deter entities from investing resources in developing alternative ratings.157 46. The record developed in response to the NOI indicates that a number of independent providers currently offer ratings for television content. As discussed above, the Commission has generally endorsed the concept of an “open V-chip” and has adopted requirements to ensure that digital television receivers can respond to changes in the content advisory system. The Commission intends to explore these and other issues in a forthcoming NOI. e. Other Changes to the V-chip 47. In addition to the proposed changes discussed above, there are a number of other suggestions in the record for ways to increase the use and effectiveness of the V-chip. For example, CFIRS proposes that the industry offer a V-chip button on television remote controls that would take consumers directly to the V-chip menu.158 CEA asserts that manufacturers would offer such a dedicated V-chip button if demand existed and suggests that the fact that one has not been offered demonstrates that there is little demand for such a tool.159 CFIRS also proposes that the packaging for TV sets should include an insert, separate from the owner’s manual, that clearly explains how to program the V-chip160 and that TV set manufacturers sell “family friendly” sets that are already pre-programmed at a given V- chip setting.161 CEA argues that both of these proposals are unnecessary and that pre-programmed TV settings could cause confusion and would be burdensome for the majority of American households that do not require content blocking.162 48. Further study is needed to assess these proposals and to consider what efforts, if any, manufacturers could take to increase awareness and usage of the V-chip. At this point, it is unclear how effective any such efforts would be in increasing awareness and usage of the V-chip. The Commission intends to explore these and other issues in a forthcoming NOI. f. Intellectual Property Issues Related to the V-chip 49. The NOI also invited comment on whether there are intellectual property concerns that could affect efforts to improve the V-chip and the current ratings system, including efforts to develop an 156 See Broadcasters Aug. 11 ex parte at 2. These commenters note that the TV Parental Guidelines were adopted voluntarily and contend that, beyond the constitutional considerations, the Commission’s statutory authority in this area is limited to only voluntary ratings schemes. See, e.g., id. at 1; NAB/NCTA/MPAA Joint Comments at 19-20 (citing Sec. 551(b)(1) of 1996 Act, codified at 47 U.S.C. § 303(w)(1)); NAB/NCTA/MPAA Reply at 9-10, 14-15. 157 See CFIRS Reply at 5. 158 See CFIRS Comments at 5. Wi-LAN supports this proposal. See Wi-LAN Comments at 5. 159 See CEA Reply at 9. CEA also suggests that a V-chip button could cause consumer confusion because many families rely on blocking technologies provided by MVPDs rather than the V-chip. See id. 160 See CFIRS Comments at 5. 161 See id. Wi-LAN also proposes that the V-chip default be set to provide the maximum protection against inappropriate material. See Wi-LAN Comments at 5. 162 See CEA Reply at 9-10. Federal Communications Commission FCC 09-69 24 “open V-chip.”163 The Commission noted that there is a patent on the technology that may be necessary to enable television receivers to respond to multiple RRTs and invited comment on whether the patent applies and if the license terms for this technology are reasonable.164 Wi-LAN Inc. (“Wi-LAN”) states in its comments that it has merged with Tri-Vision International Ltd. (“Tri-Vision”), the former V-chip patent holder, and now holds patents “related to flexible V-chip technology.”165 According to Wi-LAN, the V-chip patent is licensed to 98 companies representing more than two-thirds of the brand name DTV receivers presently available for sale in the United States.166 Wi-LAN states that it makes licenses available to all DTV receiver manufacturers under “reasonable and non-discriminatory terms.”167 In addition, Wi-LAN states that, regarding the processing of additional RRTs, no additional royalties would be required beyond those already being paid under existing licenses and, therefore, companies with existing licenses are free to provide enhanced V-chip capabilities at no additional cost.168 CEA responds by noting that, in 2004, it filed a Petition for Reconsideration of the Second DTV Periodic Report and Order in which it requested that the Commission prevent competitive abuse through the patent process.169 CEA states that “nothing in the record [of this proceeding] alleviates this concern or moots the need for Commission action on CEA’s Petition for Reconsideration.”170 50. TiVo is the only other commenter that directly addresses whether the Wi-LAN patent applies to the technology required to process multiple RRTs. According to TiVo, the Commission did not mandate use of the Wi-LAN patent in the Second DTV Periodic Report and Order proceeding and “the mere ability to respond to changes in TV ratings systems” is not patented by Wi-LAN.171 With respect to whether the Wi-LAN license terms are reasonable, TiVo argues that Wi-LAN’s proposed per unit royalty rate is far in excess of the amount a DTV receiver manufacturer would have agreed to pay to add the claimed feature to a product in the absence of a Commission mandate.172 According to TiVo, where a patent holder has advocated a regulatory mandate that could make some or all manufacturers use a particular patent, a reasonable royalty should be based on what parties would have agreed ex ante 163 See NOI, 24 FCC Rcd at 3349, ¶ 22. 164 See id. 165 See Wi-LAN Comments at 1. The Tri-Vision or Wi-LAN patent will be referred to herein as the Wi-LAN patent. 166 See id. at 5. 167 See id. 168 See id. 169 See CEA Reply at 13-14; CEA, Petition for Reconsideration and/or Clarification, MB Docket No. 03-15 (Nov. 3, 2004). But see Tim Collings and Tri-Vision International Ltd., Opposition, MB Docket No. 03-15 (Nov. 22, 2004). See also supra note 135. 170 See CEA Reply at 13-14. 171 See TiVo Comments at 8. According to TiVo, infringement requires that the alleged infringer practice each step recited in a patent claim, and several of the claims in the Wi-LAN patent are irrelevant to television receivers. See id. at 8-9 n.2. 172 See TiVo Reply at 3. TiVo argues that a reasonable royalty for the Wi-LAN patent would be nominal or zero. See TiVo Comments at 9 n.3. According to TiVo, because Tri-Vision advocated for a mandate that may require use of its patent, a reasonable royalty rate for the patent should be related to the value to consumers and manufacturers apart from any government mandates. See id. According to TiVo, consumers and manufacturers would generally find a nearly unlimited capacity to update ratings schemes by receiving updates embedded in video channels to add very little value, so a reasonable royalty for this patent would be minimal or zero. See id. Federal Communications Commission FCC 09-69 25 rather than after the regulatory mandate has been adopted.173 TiVo also argues that many manufacturers felt they had no choice but to take a license from Wi-LAN or face either expensive and unpredictable patent litigation or fines for non-compliance with a Commission rule.174 51. Sanyo asserts that it is “patently unreasonable” that it and other manufacturers are required to pay “considerable” amounts for a technology that is not currently in use by consumers.175 Sanyo urges the Commission to adopt a rule prohibiting companies from paying licensing fees for patented technology in digital television sets prior to the date that such technology is actually utilized by consumers.176 TiVo and Sanyo also urge the Commission to require that any party that participates in a proceeding before the Commission disclose all intellectual property interests that may be affected by the proceeding.177 In addition, these commenters, as well as CEA, ask the Commission to examine the intellectual property issues related to enabling television receivers to respond to multiple RRTs and note that some entities were expecting “a financial windfall” that television manufacturers and consumers might be required to fund.178 52. We will continue to monitor marketplace developments to determine whether unreasonable royalty or licensing policies are impeding efforts to improve the V-chip and the current ratings system. We note that there are pending proceedings in which the Commission is considering intellectual property licensing terms involving the V-chip as well as DTV receivers.179 3. Educational Efforts 53. Many commenters agree that educating parents about the V-chip and the TV Parental Guidelines is the most important step toward increasing parental use of the V-chip.180 A number of commenters suggest that the government could play a role in publicizing the V-chip scheme by, for example, conducting a public awareness campaign, airing public service announcements (“PSAs”), and establishing a website that explains to parents the various consumer electronics choices that allow them to control viewing.181 173 See TiVo Reply at 3. 174 See id. 175 See Sanyo Comments at 1-2. 176 See id. at 3. 177 See id. at 3-4. See also TiVo Comments at 9 n.3. 178 See CEA Comments at 21; Sanyo Comments at 2-3; TiVo Comments at 8-9. 179 We will address the CEA Petition regarding licensing terms for the V-chip in the Second DTV Periodic Review proceeding. See supra note 135. We also note that the Commission is currently examining intellectual property issues involved in the manufacture of DTV receivers. See Petition for Rulemaking and Request for Declaratory Ruling Filed by the Coalition United to Terminate Financial Abuses of the Television Transition, LLC, MB Docket No. 09-23 (filed Jan. 2, 2009). See also Technical Requirements to Enable Blocking of Video Programming Based on Program Ratings, Report and Order, 13 FCC Rcd 11248, 11262, ¶ 42 (1998); Revised Patent Policies of the Federal Communications Commission, Public Notice, 3 FCC 2d 26 (1961). 180 See, e.g., PFF Comments at 102; CDT Comments at 14; Common Sense Media Comments at 7; CFIRS Comments at 4; Smart Television Alliance Reply at 1. 181 See AT&T Comments at 4; CDT Comments at 7; Common Sense Media Comments at 10; FOSI Comments at 13; Joint Comments of CDT, CEA, ACLU et al (“Industry and Public Interest Groups Joint Comments”) at 4; PFF Comments at 110; Smart Television Alliance Comments at 3. We note that the Commission has already established (continued….) Federal Communications Commission FCC 09-69 26 54. According to NAB, NCTA, and MPAA, the television industry has engaged in a wide variety of public awareness efforts since the creation of the TV Parental Guidelines and the introduction of the V-chip.182 In 1999, NAB, NCTA, and MPAA, together with the Kaiser Family Foundation and children’s advocates, established the V-chip Education Project, which featured a series of TV PSAs, a booklet with information about the V-chip and the TV Parental Guidelines, as well as a toll-free telephone number and a website.183 More recently, in 2006, NCTA, NAB, the broadcast networks, MPAA, CEA, and the satellite industry joined with the Ad Council to launch a $340 million national multi-media “TV Boss” campaign to educate families about how they can monitor their children’s television consumption.184 The campaign included TV PSAs, as well as a website and a variety of educational materials about the V-chip and the TV ratings.185 55. Further study is required to determine the most effective ways to educate parents about the V-chip and the TV Parental Guidelines in order to increase V-chip use and awareness. The Commission intends to explore these and other issues in a forthcoming NOI.186 B. MVPD Parental Controls 56. The Commission invited comment in the NOI on advanced blocking technologies for television, other than the V-chip, that either currently exist or are under development.187 Because approximately 89 percent of TV households subscribe to an MVPD service,188 the parental control tools offered by cable, satellite, and telephone companies comprise a significant part of the technologies used by parents to monitor their children’s television viewing. CEA states that, as a practical matter, cable and satellite-provided controls are the primary blocking tools used in most households.189 57. The June 2007 Luntz Maslansky Research/Hart Research Survey commissioned by TV Watch indicated that 90 percent of parents were aware that cable and satellite providers offer controls that allow parents to block channels that they do not want their children to watch.190 The November 2005 Russell Research Survey commissioned by TV Watch found that 63 percent of parents surveyed were familiar with cable parental controls and 45 percent were familiar with satellite parental controls.191 Moreover, the same survey found that 17 percent of families studied used cable parental controls and 12 (Continued from previous page) websites that provide information about the V-chip and the TV Parental Guidelines. See http://www.fcc.gov/vchip/ and http://www.fcc.gov/parents/. 182 See NAB/NCTA/MPAA Joint Comments at 11. 183 See id. 184 See id. at 12. 185 See id. at 12-13. 186 See infra section XI. 187 See NOI, 24 FCC Rcd at 3349, ¶ 23. 188 See The Nielsen Company, 2008-2009, Universe Estimates, Media Related TV Households and Penetrations by County within DMA, July 2009. 189 See CEA Comments at 8. 190 See June 2007 Luntz Maslansky Research/Hart Research Survey at 5. 191 See Survey: Parents Combine Old-Fashioned TV Rules and Latest Blocking Technologies to Manage Kids’ TV, November 28, 2005, http://www.televisionwatch.org/NewsPolls/PressReleases/PR008.html. Federal Communications Commission FCC 09-69 27 percent used satellite parental controls, whereas only 5 percent used the V-chip.192 58. The November 2005 Russell Research Survey commissioned by TV Watch also concluded that 66 percent of parents surveyed found cable blocking technology useful and 57 percent found satellite blocking technology useful.193 Cox states that a survey it conducted in 2004 showed that 60 percent of the parents surveyed found that parental controls on cable boxes were the most valuable monitoring tool for television.194 59. Some commenters contend that the parental control devices that MVPDs provide to their subscribers are both more user-friendly than the V-chip and offer a greater variety of options in terms of monitoring children’s television viewing.195 Both analog and digital cable boxes allow parents to block channels and lock the settings with passwords.196 Newer digital boxes offer more extensive filtering capabilities that allow programs to be blocked by rating, channel, or program title.197 The current generation of digital cable set-top boxes also permits parents to set up their controls so that children are unaware that a particular channel or program is available on a particular television set.198 Channels and programs on the skip channel list will not be displayed on the TV screen and in some cases can be omitted from display in the program guide.199 Some boxes also allow customers to block access to an entire service, such as VOD, and allow customers to block content based on time and day.200 NCTA states that cable operators are working to make these blocking capabilities easier for customers to use.201 192 See id. A March 2007 Zogby poll of 1000 adults nationwide commissioned by PTC found that 11 percent of those surveyed used the V-chip or cable box parental controls. See PTC Declares the Industry’s V-Chip Education Campaign a Failure, March 15, 2007, http://parentstv.org/PTC/news/release/2007/0315.asp. The study does not distinguish between the percentage of those surveyed who used the V-chip and the percentage of those surveyed who used cable box parental controls. 193 See Survey: Parents Combine Old-Fashioned TV Rules and Latest Blocking Technologies to Manage Kids’ TV, November 28, 2005, http://www.televisionwatch.org/NewsPolls/PressReleases/PR008.html. 194 See Cox Comments at 3. 195 See, e.g., DISH Network Comments at 5; CEA Comments at 7, 10; Funai Comments at 3. 196 See PFF Comments at 21; DISH Network Comments at 6 (discussing password protection for satellite set-top boxes). Parents can also purchase aftermarket devices that block specific cable channels. See http://www.familysafemedia.com/index.html. According to NCTA, operators of cable systems serving more than 90 percent of cable customers offer free channel blocking to customers who do not otherwise have the means to block unwanted channels. See NCTA Supplemental Comments at 8. Comcast states that it will block any channel upon request and for no charge. See Comcast Comments at 3. Depending on the technology used, a channel or channels can be blocked indefinitely within the entire household or on a particular television within the household. In addition, the Communications Act mandates that cable operators block certain channels. See also 47 U.S.C. § 560(a) (“Upon request by a cable service subscriber, a cable operator shall, without charge, fully scramble or otherwise fully block the audio and video programming of each channel carrying such programming so that one not a subscriber does not receive it.”). 197 See PFF Comments at 21. See also Comcast Comments at 3-4; NCTA Supplemental Comments at 8-9. 198 See NCTA Supplemental Comments at 10. See also PFF Comments at 21; DirectTV Comments at 7; DISH Network Comments at 6; AT&T Comments at 6. 199 See, e.g., Comcast Comments at 4; Cox Comments at Appendix B at iv. 200 See NCTA Supplemental Comments at 10-11; Cox Comments at Appendix B, p. iii. 201 See NCTA Supplemental Comments at 11. See also CEA Comments at 10 (regarding the tru2way platform which CEA states enables cable operators to deploy advanced program guides with innovative blocking features). Federal Communications Commission FCC 09-69 28 60. Digital set-top boxes offer a variety of different menu options from which to gain information about a show’s rating and to activate parental controls.202 Programs can be blocked according to the TV Parental Guidelines’ age-based ratings or content descriptors, or by a combination of the two.203 Movies can be blocked according to MPAA ratings.204 A customer can view MPAA ratings for movies and block particular movies based on those ratings, thereby enabling the customer to select movies appropriate for family viewing.205 In addition, many digital cable boxes provide access to information about the TV Parental Guidelines, including descriptions of the content labels in the information bar (e.g., TV-PG, V/ V=moderate violence), as well as full ratings information, including content labels in the description of a highlighted program that appears in the TV listings grid.206 In addition, several cable operators offer links on their websites to the websites of third-party rating services. For example, Time Warner Cable, Cox, and Comcast provide links to the Common Sense Media programming reviews.207 61. The cable industry has voluntarily undertaken specific actions to promote the availability of parental control tools in cable technology.208 In 2004, the cable industry commenced a new education effort, “Control Your TV,” which produced additional PSAs as well as websites, in both English and Spanish, promoting the availability of cable’s blocking technology as well as resources devoted to media literacy and education.209 In addition, cable companies provide other assistance to help parents with parental controls, including telephone hotlines, websites, and instructional short programs and videos.210 62. Local telephone companies that offer video service also provide customers with the ability to control their children’s television viewing.211 Verizon, for example, uses the same set-top boxes as other cable companies.212 AT&T notes that its U-verse Television service allows parents to, among other things, block channels, record programs, set limits on ordering and watching on-demand 202 See NCTA Supplemental Comments at 9-10. 203 Id. at 9. 204 See id. at 10. 205 See id. 206 See id. 207 Id. at 12. See also Comcast Comments at 6-7; Cox Comments at 8-9. 208 NCTA and MPAA, along with NAB, assert that the First Amendment and the Communications Act limit the Commission’s authority to establish new mandates concerning alternative ratings systems. See NAB/NCTA/MPAA Joint Comments at 19-20; NAB/NCTA/MPAA Reply at 14-15. 209 See NCTA Supplemental Comments at 5. The NCTA “Control Your TV” website provides a description of the parental controls offered by cable television providers. See http://controlyourtv.org. 210 See Comcast Comments at 5-6 (brochure, telephone hotline, website, video); Cox Comments at 4 (Take Charge instruction sheets and website). See also DIRECTV Comments at 3-4 (describing its website and its “Basics Show” which runs continuously on one of the DIRECTV channels). 211 See AT&T Comments at 6 (regarding U-verse Television); Verizon Comments at 4-6 (regarding FiOS TV). See also USTelecom Comments at 6 (noting that smaller companies are also offering state of the art video networks that provide parental controls). 212 See PFF Comments at 23. See also Verizon Comments at 4-6. For FiOS TV customers, a variety of parental control options are available through the DVR offered to Verizon’s FiOS customers. See id. at 5 Federal Communications Commission FCC 09-69 29 videos, and prevent a channel or VOD from appearing in the EPG listing.213 63. Satellite providers also offer parental control capabilities through their set-top boxes.214 Satellite providers state that, without any government mandate, the industry has developed tools that are more effective and user-friendly than the V-chip and that these tools have proven to be a key marketing and subscriber retention tool for video providers.215 Both DISH Network and DIRECTV have established a relationship with a third-party ratings service, Common Sense Media, and state that they anticipate that in the future the Common Sense Media ratings will be available on information screens accessible through their on-screen programming guides.216 64. In its Reply Comments, Motorola, Inc. (“Motorola”) provides information about its advanced server technology called TV Firewall which it expects to be ready for deployment in cable headends in 2010.217 Motorola states that TVFirewall will offer the same kind of capabilities available now to many cable subscribers but will also permit parents to make affirmative viewing choices, create a pre-selected library of programming for their children to view, customize parental control configurations for each set-top box in the home, specify the time periods during each day when a child is allowed to view programming, and log the viewing activity of each set-top box.218 TVFirewall will be configured via a graphical user interface (“GUI”) that is available online and can be accessed from any device that can access the Internet, including web-enabled mobile devices.219 The GUI will allow parental control configurations to be customized for each set-top box in the home.220 TV Firewall will utilize switched digital video (“SDV”) technology to control access to cable content.221 The parental control settings for each set-top box in the home will be maintained in servers at the cable headend.222 When a child tunes to a particular channel, the set-top box will send an inquiry to the server to confirm whether the set-top box is authorized to tune to that channel.223 65. TVFirewall will allow for white listing of content selected by parents.224 Specifically, Motorola explains that the playlist support feature of TVFirewall will allow parents to use the GUI to select programs that they want their children to view.225 The programs selected will create a playlist for 213 See AT&T Comments at 6. 214 See DISH Network Comments at 4-6; DIRECTV Comments at 3-11. 215 See DISH Network Comments at 4-6. 216 See id. at 6; DIRECTV Comments at 11. 217 See Motorola Reply at 4-8. 218 See id. at 4-8. 219 See id. at 4-5. 220 See id. at 4. 221 In contrast to the traditional cable architecture, in which all channels are typically delivered to all customers at all times regardless of whether anyone is watching, SDV enables operators to allocate bandwidth based on usage levels, thereby enabling more effective bandwidth utilization. SDV must be enabled on the network, but a particular channel does not have to be switched, in order for TV Firewall to work. See id. at 7-8 n.11. 222 See id. at 7. 223 See id. 224 See id. at 7. 225 See id. Federal Communications Commission FCC 09-69 30 the set-top box.226 66. In addition to the parental control tools available through set-top boxes and programming guides, many MVPDs offer subscribers the option of purchasing a bundle of “family friendly” channels.227 For example, DISH Network offers “DishFAMILY”228 and DIRECTV offers a “Family Choice” bundle of channels.229 Major cable operators, including Comcast, Time Warner, Cox, Insight Communications, Mid-Continent, and Bright House, also offer family packages.230 In addition, a satellite service called Sky Angel offers over 70 channels of Christian and family friendly programs.231 67. While the record reflects that MVPD parental control technologies exist, the record is lacking data in a number of areas regarding MVPD parental control technologies, as explained further below, which the Commission intends to explore in a forthcoming NOI.232 C. Other Parental Control Devices for Television 68. The Commission invited comment in the NOI on advanced blocking technologies for television, other than the V-chip and other than those provided by MVPDs, that either currently exist or are under development.233 Pursuant to the directive of the Child Safe Viewing Act, the Commission invited comment specifically on technologies that operate based on ratings established by an entity other than the creator of the programming234 and on technologies that can filter language based upon information in closed captioning.235 As discussed below, while the record reflects that “other parental control devices” for television (i.e., parental control devices and technologies other than the V-chip and those provided by MVPDs) exist, the record is lacking data in a number of areas regarding these devices, 226 See id. 227 See CEA Comments at 10. We note that the Commission adopted a Notice of Proposed Rulemaking in September 2007 in which it sought comment on concerns raised by MVPDs regarding certain wholesale programming practices. See Program Access Rules and Examination of Programming Tying Arrangements, MB Docket No. 07-198, Notice of Proposed Rulemaking, 22 FCC Rcd 17791, 17862, ¶ 119 and 17867, ¶ 133 (2007). In response to the NPRM, a number of MVPDs alleged that programmers often demand tier or minimum penetration requirements, pursuant to which the programmer will make its content available only if the MVPD carries it on one of the MVPD’s most highly penetrated tiers and will specifically preclude the MVPD from placing the station or network on anything other than one of the most highly penetrated tiers. See, e.g., American Cable Association Comments (MB Docket No. 07-198) at 14-16, 18, 27-43; Broadband Service Providers Association Comments (MB Docket No. 07-198) at 19-24; DISH Network Comments (MB Docket No. 07-198) at 2-3, 14-16. Some MVPDs have claimed that these alleged tier or minimum penetration requirements limit their ability to offer themed tiers, including “family friendly” tiers. See ACA Comments (MB Docket No. 07-198) at 43; BSPA Comments (MB Docket No. 07-198) at 19; DISH Network Comments (MB Docket No. 07-198) at 2. 228 See DISH Network Comments at 7. 229 See PFF Comments at 23. 230 Id. 231 See www.skyangel.com. See also PFF Comments at 23-24. 232 See infra section XI. 233 See NOI, 24 FCC Rcd at 3349, ¶ 23. 234 Id. at 3348, ¶ 20. See also Child Safe Viewing Act at Section 2(b)(4). 235 See NOI, 24 FCC Rcd at 3349, ¶ 24. See also Child Safe Viewing Act at Section 2(b)(3). Federal Communications Commission FCC 09-69 31 as discussed below, which the Commission intends to explore in a forthcoming NOI.236 1. TiVo’s KidZone 69. As noted in the NOI, TiVo offers a service to its subscribers called KidZone that permits parents to block, select, and/or record programming for their children based on a list of recommended programs developed by independent organizations including PTC, KIDS FIRST!, and Common Sense Media.237 TiVo states that it developed KidZone after its research showed that parents found the V-chip “confusing and difficult to configure.”238 Using KidZone, parents turn on program blocking for live and recorded television by selecting an appropriate age range: 6 and under; 9 and under; or 12 and under. Pursuant to the default settings for each age range, KidZone blocks shows with ratings above a certain level (e.g., for ages 9 and under, shows with a rating of TV-PG, TV-14 and TV-MA are blocked) and shows with certain content labels (e.g., for ages 9 and under, D, S, L, V and FV are all blocked).239 Parents have the option of changing these default settings for the indicated age range.240 KidZone will also block entire channels so that the children are permitted to tune into only those channels that parents likely would approve for children in that age range (e.g., PBS, ABC Family, Nickelodeon, Disney and Animal Planet, among others, are permitted by default for ages 9 and under).241 KidZone allows parents to override the TV Parental Guideline ratings and default settings and permit viewing of particular programs and channels based on their own assessment of the appropriateness of the content for their children.242 70. TiVo explains that KidZone allows for both white listing and black listing of particular shows.243 Specifically, KidZone provides parents with the option to indicate that particular shows are or are not permitted for live or recorded viewing.244 TiVo states that when the parents see the title of a show that they do or do not want their children to view, the parents have the option to affirmatively allow or prevent recording of the program.245 71. In addition, KidZone provides parents with access to KidZone Guides, which lists programs recommended by independent ratings organizations, as well as programs identified by 236 See infra section XI. 237 SeeTiVo Comments at 3. Approximately 3.3 million customers, both within and outside of the United States, subscribe to the TiVo service. See TiVo, Inc., SEC Form 10-K (April 3, 2009), at 41. 238 See TiVo Comments at 2. 239 See id. at 3. 240 See id. 241 See id. 242 See id. Comcast set-top boxes with TiVo functionality do not currently support the KidZone feature, but they do support other parental control features. See Letter from Ryan G. Wallach, Counsel for Comcast, to Ms. Marlene H. Dortch, Secretary, FCC, MB Docket No. 09-26 (July 24, 2009), at 2. TiVo and DIRECTV announced that they are working to introduce a DIRECTV DVR featuring the TiVo Service that includes KidZone in the second half of 2009. See DIRECTV and TiVo to Launch New HD DIRECTV DVR with TiVo Service, available at http://www.directv.com/DTVAPP/global/contentPage.jsp? assetId=P4900010. 243 See TiVo Comments at 3. 244 See id. 245 See id. Federal Communications Commission FCC 09-69 32 broadcasters as E/I.246 Parents can review the recommended programs and select any individual programs for recording or choose to record all of the recommendations.247 The KidZone Now Playing List provides a list of the shows recorded by the parents for viewing by their children.248 When parents want to watch their own programs, they enter a password to exit KidZone.249 The TiVo DVR can be set to automatically re-enter KidZone after a period of time, or the parents may choose to re-enter KidZone at any time.250 72. According to TiVo, the KidZone usage rate is about equivalent to the V-chip usage rate.251 As discussed above, the Kaiser Family Foundation conducted two studies, one of which found that 15 percent of parents have used the V-chip252 and the other of which found that 16 percent of parents have used the V-chip.253 TiVo estimates that 30-35 percent of households with a TiVo DVR have children and, among those households, KidZone usage has never exceeded the 15 percent to 16 percent V-chip usage rate found in the 2004 and 2007 Kaiser Family Foundation Studies.254 In addition, TiVo states that parents it surveyed who use KidZone report that they value the feature highly, similar to the findings regarding the V-chip in the studies conducted by the Kaiser Family Foundation.255 73. TiVo states that it surveyed recent purchasers of TiVo DVRs.256 Among recent purchasers in households with children 13 years of age and younger, only 29 percent were aware of KidZone prior to purchase.257 Among these households that were aware of KidZone, 61 percent said that it was important or very important in increasing their purchase interest.258 Among recent purchasers of TiVo DVRs in households with children that were aware of KidZone prior to purchase, 49 percent reported that KidZone was important or very important in increasing their purchase interest.259 TiVo also states that the research it conducted during the development of KidZone showed that parents were using the TiVo DVR to record shows for their children rather than using the V-chip to block programming.260 246 See id. at 3-4. 247 See id. at 4. 248 See id. 249 See id. 250 See id. 251 See id. 252 See Parents, Children & Media: A Kaiser Family Foundation Survey (Fall 2004). 253 See 2007 Kaiser Family Foundation Study. 254 See TiVo Comments at 4. See also supra ¶ 17. 255 See TiVo Comments at 4. We note that TiVo did not provide statistics to substantiate this claim. By comparison, the 2007 Kaiser Family Foundation Study found that “nearly three out of four parents (71%) who have tried the V-Chip say they find it ‘very’ useful, a higher proportion than for any of the media ratings or advisory systems.” See 2007 Kaiser Family Foundation Study at 10. 256 See TiVo Comments at 4. 257 See id. at 4-5. 258 See id. 259 See id. at 5. 260 See id. Federal Communications Commission FCC 09-69 33 2. TVGuardian 74. Section 2(b)(3) of the Act specifically requires the Commission to consider technologies that filter language based on closed captioning information.261 In the NOI, the Commission noted that TVGuardian is a currently available technology that uses closed captions to identify inappropriate content in television programs.262 According to TVGuardian, its technology is an “Advanced Foul Language Filtering Technology” (“AFLFT”) that reads the closed captioning that is embedded and required in most forms of television programming.263 When the technology encounters a word that the viewer has deemed objectionable, the captioned phrase is muted and a non-offensive version of the phrase appears on the screen.264 TVGuardian argues that, unlike the V-chip which blocks objectionable programs, AFLFT offers families the best of both worlds – they can watch the shows they enjoy without the objectionable language.265 Parents can choose between multiple filter levels, ranging from very strict to tolerant, and can select specific kinds of offensive speech to filter, such as racial/hate slurs, offensive religious references, and sexual terms.266 75. In the NOI, the Commission noted that closed captions are not always synchronized perfectly with the audio, and thus the captions may appear slightly before or after the time words are spoken as part of the on-screen program.267 The NOI invited comment on whether this lack of synchronization affects the use of captions to block inappropriate comment.268 TVGuardian states that, while errors within the closed captions may reduce the accuracy rate of its technology slightly, its accuracy level is only slightly less than 100 percent.269 In contrast, TVGuardian asserts that the V-chip ratings often do not contain appropriate content descriptors, such as an “L” warning on a program containing numerous offensive words.270 76. TVGuardian states that a survey it commissioned in 2007 shows that 70 percent of families with children, and 62 percent of all viewers surveyed, are uncomfortable with the language on TV, and 38 percent of viewers without pay TV service would be more likely to choose pay TV if language filtering were available.271 TVGuardian reports that its technology was first sold as an add-on hardware solution – a $99 box that could be connected between the TV and cable or satellite box or a 261 Child Safe Viewing Act at Section 2(b)(3) (requiring the Commission to consider advanced blocking technologies that “can filter language based upon information in closed captioning”). 262 See NOI, 24 FCC Rcd at 3349, ¶ 24. TVGuardian can operate with both networked and non-networked technologies. Accordingly, we also discuss TVGuardian in Section VI below pertaining to non-networked devices. 263 See TVGuardian Reply at iii. 264 See id. 265 See id. Most of the approximately 9,900 brief comments the Commission received in response to the NOI express support for foul language filtering technology in general, and many of these commenters mention TVGuardian specifically. 266 See id. at 4. 267 See NOI, 24 FCC Rcd at 3349, ¶ 24. 268 See id. 269 See TVGuardian Comments at 21. 270 See id. 271 See id. at 29-30. Federal Communications Commission FCC 09-69 34 VCR tuner – and subsequently was built into some DVD players and VCRs.272 TVGuardian states that over 12 million DVD players with TVGuardian technology have been sold to date.273 According to TVGuardian, however, hardware containing TVGuardian technology is no longer being manufactured and fewer and fewer DVD players are being built with the TVGuardian feature.274 77. TVGuardian states that, for foul language filtering to work in the digital world, the filtering must be either built into the pay-TV receiver for viewers that subscribe to pay-TV service or into the TV for viewers without pay-TV.275 According to TVGuardian, it has repeatedly offered its technology to major cable and satellite companies and has been repeatedly turned down.276 TVGuardian explains that it offered this technology to various MVPDs for free, subject only to the condition that TVGuardian would receive half of any fee an MVPD charges its subscribers for the service.277 TVGuardian urges the Commission to include in this report a “strong recommendation that Congress ensure that providers enable consumers to have access to AFLFT.”278 78. According to NAB, NCTA, and MPAA, MVPDs have met with TVGuardian and elected not to use its technology.279 These commenters contend that the Commission should not pick technology winners and losers.280 Comcast states that incorporation of TVGuardian technology into set top boxes would be neither easy nor inexpensive and urges the Commission to decline to recommend such a mandate to Congress.281 Comcast also points out that TVGuardian acknowledges that its technology has been incorporated into consumer electronics devices that consumers interested in the technology can purchase.282 Comcast states that it conducted research on TVGuardian and concluded that the technology would be of limited use to its customers, that there were potential legal and technical concerns related to its deployment, and that incorporation of the technology into set-top boxes would not be a good business decision.283 TiVo and Comcast state that they have doubts that the TVGuardian technology would work well nationwide across a wide variety of close captioned video programs.284 These commenters also oppose “mandates of particular technology implementations without a thorough 272 See id. at 26. 273 See id. 274 See id. at 5. As discussed in Section VI below, TVGuardian explains that, in the past few years, DVDs have been increasingly distributed with the Subtitles for the Deaf and Hard-of-Hearing (SDH) format rather than closed- captions, which limits the usefulness of TVGuardian technology in DVD players. See id. at Appendix C at 3. 275 See id. at 40. 276 See id. at 5-9. 277 See id. at 8. 278 See TVGuardian Reply at iv. See also id. at 12 (the “government should require that cable, satellite and IPTV providers permit families to have access to AFLFT so that the public interest can be served.”). 279 See NAB/NCTA/MPAA Reply at 15-16. 280 See id. 281 See Comcast Reply at 3. 282 See id. at 3. 283 See id. at 4. 284 See TiVo Comments at 9 n.4; Comcast Reply at 3-4. Federal Communications Commission FCC 09-69 35 cost/benefit analysis and an understanding of all intellectual property issues.”285 3. CC + 79. Caption TV Inc.’s CC+ is another example of a technology that filters language based on closed captioning information, but it also has the capability of filtering objectionable video content.286 According to Caption TV, CC+ permits viewers to selectively block images, soundtrack, and captioning text in television programming.287 Depending upon the level of sensitivity selected by the viewer, the CC+ technology mutes specific words, partially or totally blocks nudity and sex, and partially or totally blocks violence.288 Caption TV explains that it has developed a software development kit for inserting filter codes that allows specific and precise blocking of portions of the audio and video.289 The filter codes, inserted in Line 21 by the captioner, provide cues to the hardware that allow it to perform the filtering.290 Caption TV says that the CC+ technology can be implemented into any closed captioning encoding software program, such as that used in many personal computers and digital cable and satellite set top boxes.291 TVGuardian maintains that technologies such as CC+, as well as ClearPlay and CustomPlay,292 are not ready for use in television programming.293 TVGuardian contends that, unlike technologies like TVGuardian that rely on existing closed captioning data, technologies such as CC+ require every frame of every scene of each program to be manually screened and coded in advance for objectionable content.294 By analogy, TVGuardian notes that it took twelve years to add closed captioning to the majority of television programming.295 TVGuardian argues that the incorporation of CC+ into the wide range of devices and platforms mentioned in the Child Safe Viewing Act would represent an overwhelming burden for the media industry.296 According to TVGuardian, another challenge for these technologies is that they filter on the basis of subjective judgment calls rather than foul language that is relatively easier to define.297 80. Caption TV states that parents can customize the list of words to be muted from the audio and/or replaced in the closed caption readout, can filter portions of a scene containing the selected level of nudity, and can filter portions of a scene containing the selected level of violence.298 Unlike the V- 285 TiVo Comments at 9 n.4. See also Comcast Reply at 3-4. 286 See Caption TV Comments at 1. 287 See id. at 3. 288 See id. at 2. 289 See id. 290 See id. 291 See id. at 4. 292 See infra ¶¶ 119-120 for discussion of the ClearPlay and CustomPlay technologies for non-networked devices. 293 See TVGuardian Comments at 15. 294 See id. at 16. 295 See id. 296 See id. at 15-16. 297 TVGuardian notes that even the Commission has concluded that violence is difficult to define. See id. at 16 (citing In the Matter of Violent Television Programming And Its Impact on Children, Report, 22 FCC Rcd 7929, 7931 (2007)). 298 See Caption TV Comments at 2. Federal Communications Commission FCC 09-69 36 chip, which blocks entire programs, CC+ permits filtering to be performed on portions of a program, blocking the objectionable material and allowing the unobjectionable material to pass through the filter.299 Caption TV states that the CC+ technology is compatible with the V-chip and that a prototype “Set Top Box Decoder” has been developed together with Tri-Vision, the original V-chip patent holder.300 According to Caption TV, CC+ can be developed into the V-chip menu so parents can choose to activate CC+ or the V-chip from the same screen and with the same access code.301 4. Digital Watermarking 81. Two commenters, Digimarc Coproration (“Digimarc”) and the Digital Watermarking Alliance (“DWA”), propose that the Commission consider digital watermarking technology as a possible alternative to the V-chip.302 As these commenters point out, the V-chip was developed only for television distribution.303 In contrast, Digimarc and DWA assert that digital watermarking could permit advanced content blocking across numerous delivery platforms.304 82. Digital watermarking is a technology whereby a digital code that is imperceptible to humans but detectable by computers, networks, and other electronic devices is embedded in media or other content.305 When a device reads a digital watermark, it can allow the content to be viewed or not viewed.306 Because watermarks remain embedded in the content through subsequent manipulations, copying, and format conversions, they permit this technology to be used across a variety of media delivery platforms including television, cable, satellite, wireless devices, non-networked devices, and the Internet.307 According to Digimarc and DWA, digital watermarking is currently in use in many applications.308 For example, it is used in preventing unauthorized access to copyrighted work and in deterring counterfeiting of currency.309 In addition, the Nielsen Company uses digital watermarking in television broadcasts to track viewership among families participating in audience measurement.310 Digimarc and DWA assert that, because watermarking is content-specific rather than hardware, software, device, or distribution-specific, this technology is one of the very few, if not the only, technology capable of operating across multiple content types and platforms.311 Digimarc and DWA request in their comments that the Commission consider how digital watermarking technology might provide content 299 See id. 300 See id. at 1. 301 See id. at 4. 302 See Digimarc Comments at 2; DWA Comments at 5. Digital watermarking can operate with both networked and non-networked technologies. Accordingly, we also discuss digital watermarking in Section V regarding wireless devices and Section VI pertaining to non-networked devices. 303 See Digimarc Comments at 9; DWA Comments at 3. 304 See Digimarc Comments at 4; DWA Comments at 5. 305 See Digimarc Comments at 2. 306 See id. at 3. 307 See id. at 4-6. 308 See Digimarc Comments at 8 and Appendices A-C; DWA Comments at 4. 309 See Digimarc Comments at 3. See also DWA Comments at 4. 310 See Digimarc Comments at 3. 311 See id. at 4. See also DWA Comments at 5. Federal Communications Commission FCC 09-69 37 identification for purposes of parental control of media content.312 In addition, Digimarc suggests that the Commission should recommend to Congress the deployment of other technologies, such as digital watermarking, as an alternative to the V-chip.313 83. CEA contends that digital watermarking is not a viable replacement for the V-chip.314 According to CEA, proponents of digital watermarking have sought legislation for years to incorporate this technology in televisions to control the conditions under which consumers can access content that may be subject to copyright protection.315 CEA contends that, by advocating watermarking in this proceeding, the proponents are seeking another avenue to accomplish the goal of requiring televisions to incorporate Digital Rights Management (“DRM”) functionality.316 CEA states that fair use proponents, including many consumer electronics manufacturers and public interest groups, have opposed these attempts as inconsistent with the Supreme Court’s Sony Betamax decision.317 In addition, CEA explains that the ownership and licensing terms of any necessary intellectual property rights would have to be examined before mandating digital watermarking or similar technologies.318 5. Other Technologies 84. In addition to the technologies discussed above, there are a variety of other kinds of parental control tools available by which to monitor television use. These include after-market television time management tools that allow parents to restrict the time of day or aggregate number of hours that children watch programming,319 as well as remote controls made for children (e.g., the Weemote) that have just a few large buttons that permit a child to select only certain television channels pre-selected by 312 See Digimarc Comments at 10; DWA Comments at 7. Digimarc advocates a joint industry and government effort to promote the development of parental controls. See Digimarc Comments at 6 n.2 (“Fostering broad adoption of advanced blocking technologies will require government and industry leadership, orchestration of all the stakeholders, and an underlying recognition that consumer value is paramount. Where there is consumer value, there is incentive within industry to innovate and offer solutions. Since the market for parental control to date has not been of sufficient size to stimulate broad-based innovation or deployment, government and industry should pursue orchestrated industry approaches wherein parental controls are a component of a full set of features that offer commercial value.”). 313 See Digimarc Reply at 1. 314 See CEA Reply at 10. 315 See id. 316 See id. 317 See id. See also Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984) (“Sony Betamax”) (establishing that recording programs for later viewing in the privacy of the user’s home is a noncommercial use permitted under the fair use doctrine). 318 See CEA Reply at 10-11. See also TiVo Reply at 3. 319 See PFF Comments at 24. PFF explains that the Family Safe Media website sells TV time management tools that allow parents to restrict the time of day or aggregate number of hours that children watch programming. See id. (citing www.familysafemedia.com/tv_time_management_tools_-_par.html). PFF explains further that devices such as the Bob TV Timer by Hopscotch Technology and the TV Allowance television time manager feature PIN-activated security methods and tamper-proof lock boxes that make it impossible for children to unplug or reset the device. See id. (citing www.hopscotchtechnology.com, www.tvallowance.com). PFF states that “credit-based” devices such as the Play Limit box require children to place time tokens in a metallic lockbox to determine how much TV or game time is allowed. See id. (citing www.playlimit.com). Federal Communications Commission FCC 09-69 38 parents.320 In addition, as noted by PFF, devices such as VCRs, DVD players, DVRs, and VOD services permit parents to accumulate libraries of selected programming for their children and control when it will be viewed.321 III. VIDEO GAMES 85. The NOI sought comment on whether to examine blocking technology for video game players and video games.322 As noted in the NOI, video game players are not included among the devices specifically identified in Section 2(b)(2) of the Act, and video games are not mentioned in the Senate Report and were not discussed in the Senate hearing on the Act.323 In light of the popularity of video games among children and concerns expressed regarding their content, however, the Commission sought comment on whether to examine methods of controlling access to video games in this proceeding.324 86. The majority of commenters that address this issue take the position that video games should not be reviewed in this proceeding.325 In general, these commenters contend that the Act is silent with respect to video games and, in any event, the video game industry already provides one of the most robust voluntary rating systems available.326 Although we conclude that video game players and video games are not the focus of the Child Safe Viewing Act, we did receive some comments on parental controls used in the video game industry, and report on those here. Moreover, we intend to explore issues pertaining to parental controls for video game players and video games in a forthcoming NOI.327 87. According to PFF, the video game industry rating system is “in many ways the most sophisticated, descriptive, and effective ratings system devised by any major media sector in America.”328 Virtually all games sold at retail in the U.S. are rated by the Entertainment Software Rating Board (“ESRB”) pursuant to a system of six age-based ratings and more than 30 content descriptors.329 Common Sense Media also provides independent video game ratings.330 In addition to appearing on the video game packaging, the ESRB ratings are also available digitally in the game metadata thereby 320 See id. at 25. 321 See id. at 26. 322 See NOI, 24 FCC Rcd at 3345, ¶ 11. 323 See id. at 3345, ¶ 11. 324 See id. 325 See, e.g., CDT Comments at 6; Digital Media Association (“DMA”) Comments at 2; Microsoft Comments at 4. See also Entertainment Software Association (“ESA”) Comments at 3-8 (arguing that the Commission has neither direct nor ancillary jurisdiction to regulate video games, including video game content or video game rating systems). 326 See CDT Comments at 6; DMA Comments at 2; Microsoft Comments at 4; ESA Comments at 3-8. A description of the Entertainment Software Rating Board (“ESRB”) ratings is contained at Exhibit 1 of the ESA Comments. 327 See infra section XI. 328 PFF Comments at 48. 329 See ESA Comments at 9. According to ESA, at least three specially-trained raters review all game content against a wide range of criteria, and the ESRB assigns the rating after an “extensive deliberative process.” Id. 330 See Common Sense Media Comments at 2. Federal Communications Commission FCC 09-69 39 enabling video game platforms to screen content based on the ratings.331 Virtually all current generation video game platforms contain tools that block by ESRB rating, including Microsoft Xbox 360, Nintendo’s Wii, Sony PlayStation 3, and Windows Vista operating system.332 Some devices also allow parents to control with whom their children play video games online and how and when they play, as well as to restrict or track the amount of time the children spend playing the games.333 According to ESA, surveys show that, because of the usefulness of the video game ratings and outreach programs sponsored by the industry, 86 percent of parents who purchase video games are aware of the ESRB ratings and 78 percent regularly check the rating before making a video game purchase.334 According to the 2007 Kaiser Family Foundation Study, 58 percent of parents who have used the video game ratings found them useful.335 Moreover, the Federal Trade Commission (“FTC”) examines the marketing and advertising practices of major media sectors, including video games.336 The FTC recently found that, whereas 42 percent of children were able to purchase an M-rated video game in 2006, that percentage fell to 20 percent in 2008.337 88. Common Sense Media maintains that the rating assigned by ESRB no longer applies if a user downloads a modification or utilizes the game’s online functions to play other networked users.338 In response, ESA says that ESRB does rate authorized game downloads and online content created by the video game publisher.339 According to ESA, an issue arises only with user-created content or user chats – which is not an issue unique to video games.340 ESA contends that no rating system or control device can anticipate the extemporaneous world of the Internet. Moreover, ESA states that ESRB-rated games contain a warning notifying parents that online interactions are possible in connection with game play and that such interactions are not rated.341 331 See ESA Comments at 10. 332 See id. See also CEA Comments at 12, Nintendo Reply at 2. 333 See ESA Comments at 10. 334 See id. at 11 and Exhibit 2. 335 See 2007 Kaiser Family Foundation Study at 9. According to a survey of 8-18 year-olds, 21 percent say that their parents have rules about which video games they can play. See Generation M: Media in the Lives of 8-18Year- olds at 17 and Appendix 3.4. 336 See id. at 12-13; PFF Comments at 55-56. See, e.g., FTC, Marketing Violent Entertainment to Children: A Fifth Follow-up Review of Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries (April 2007), available at http://www.ftc.gov/reports/violence/070412MarketingViolentEChildren.pdf. 337 See FTC, Press Release, Undercover Shoppers Find It Increasingly Difficult for Children To Buy M-Rated Games (May 8, 2008), available at http://www.ftc.gov/opa/2008/05/secretshop.shtm. But see Patrick M. Garry & Candice J. Spurlin, The Effectiveness of Media Rating Systems in Preventing Children's Exposure to Violent and Sexually Explicit Media Content: An Empirical Study, 32 OKLA. CITY U. L. REV. 215, 233-5 (2007) (reporting results of a survey that showed that 58 percent of children between the ages of 9 and 15 had played a game rated Mature (M) or Adults Only (AO); 47 percent of children between the ages of 9 and 15 owned an M or AO-rated game; and that of the children who purchased the games themselves, 90 percent were not asked for their age). 338 See Common Sense Media Comments at 2. 339 See ESA Reply at 3-5. 340 See id. 341See id. Federal Communications Commission FCC 09-69 40 IV. AUDIO-ONLY PROGRAMMING 89. The NOI also sought comment on whether to examine blocking technology designed for content that is audio only (e.g., music), or technologies designed for content that combines audio and video (e.g., television programs), or both.342 Section 2(b)(2) of the Act requires the Commission to consider “advanced blocking technologies” that may be appropriate across a wide variety of “devices capable of transmitting or receiving video or audio programming.”343 Moreover, Section 2(d) of the Act defines “advanced blocking technologies” as technologies that can improve or enhance the ability of a parent to protect children from any indecent or objectionable “video or audio” programming.344 Although the Commission explained in the NOI that the legislative history indicates that Congress was focused primarily on television content,345 the text of the Act directs the Commission to consider blocking technologies for audio-only programming. Accordingly, we discuss here the few comments the Commission received on the issue of parental controls used for audio-only programming. In addition, the Commission intends to explore issues pertaining to parental controls for audio-only programming in a forthcoming NOI.346 90. Most commenters addressing the issue contend that we should not examine audio-only programming in this proceeding.347 In general, these commenters agree that Congress did not intend for the Commission to inquire into music or radio.348 Commenters also note that, since the 1980’s, the music industry has administered a voluntary parental advisory labeling program to warn parents if an album contains explicit lyrics concerning sex, violence, or drug use.349 The program is run by the Recording Industry Association of America on behalf of record companies and producers who decide which songs and products receive the ratings. According to the 2007 Kaiser Family Foundation Study, 56 percent of parents who have used the music ratings found them very useful.350 In addition to ratings provided by the music industry, there are a number of independent websites that provide music reviews for parents, including Common Sense Media and Plugged In Online, as well as user-generated music reviews and sites that permit parents to examine music lyrics.351 91. PFF explains that not every portable music player on the market today offers embedded parental control capabilities, but Apple and Microsoft offer some controls on their devices and are 342 See NOI, 24 FCC Rcd at 3344, ¶ 7. 343 Child Safe Viewing Act at Section 2(b)(2) (emphasis added). 344 Child Safe Viewing Act at Section 2(d) (emphasis added). 345 See NOI, 24 FCC Rcd at 3344, ¶ 7. 346 See infra section XI. 347 See CDT Comments at 4; DMA Comments at 2; Google Comments at 10; National Association of Recording Merchandisers (“NARM”) Comments at 1. 348 See CDT Comments at 4; DMA Comments at 2; Google Comments at 10; NARM Comments at 1. 349 See PFF Comments at 43. The labeling of explicit lyrics does not include age-based categories because the music industry contends that music is not amenable to such classification. See NARM Comments at 2. 350 See 2007 Kaiser Family Foundation Study at 9. In addition, a study of children aged 8-18 showed that 16 percent say their parents have rules about what kind of music they can listen to and 14 percent say their parents check parental warnings or ratings on music. See Generation M; Media in the Lives of 8-18 Year-olds at Appendix 3.4. 351 See PFF Comments at 48. Federal Communications Commission FCC 09-69 41 committed to improving these capabilities.352 The iTunes software contains parental controls that enable parents to disable all podcasts, online radio, music sharing, or access to the iTunes Store.353 On the iTunes store, music containing explicit lyrics is labeled “Explicit,” and movies are labeled with MPAA movie ratings and other content descriptors.354 Parents can restrict downloading of music that contains the “Explicit” label.355 Parents can also designate the movie and TV ratings that are appropriate for their children, thereby restricting a child’s access to anything rated above that level.356 92. With respect to terrestrial radio, the Center for Democracy and Technology (“CDT”) claims that there does not appear to be any significant perception of a problem with inappropriate content.357 The National Hispanic Media Coalition, however, counters that many Latinos are particularly concerned about inappropriate sexual content on Spanish language radio and requests that the Commission inquire into blocking technology for such content.358 We note, however, that we are unaware of any current blocking technology that would allow parents to protect their children from indecent or objectionable audio programming on terrestrial radio.359 Moreover, CDT’s assertion that there is not a perception of a problem with regard to terrestrial radio is inconsistent with the history of the Commission’s indecency enforcement, which has focused predominantly on broadcast radio,360 and the fact that the Commission continues to receive numerous radio broadcast indecency complaints. 93. With respect to satellite radio, CDT notes that satellite radio offers subscribers the option to block channels that frequently use explicit language.361 PFF explains that satellite radio subscribers can choose from a variety of plans, or purchase channels a la carte, to exclude any channels that might include programming with explicit language or lyrics.362 V. WIRELESS DEVICES 94. In the NOI, the Commission sought comment on blocking and filtering technologies for wireless devices, recognizing that wireless devices present additional challenges due to technical aspects and because mobile phones are typically operated by children away from the purview of their parents.363 352 See PFF Comments at 44. 353 See id. at 45. 354 See id. 355 See id. 356 See id. 357 See CDT Comments at 4. 358 See National Hispanic Media Coalition Comments at 3. 359 Moreover, the record has no data indicating whether HD Radio™ receivers have channel blocking capabilities. See CDT Comments at 4 (noting that satellite radio allows subscribers to block channels). 360 While the Commission’s most recent indecency enforcement actions have involved television, the Commission over the course of its history enforcing the indecency regulations has focused predominantly on broadcast radio. See, e.g., Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Radio, 16 FCC Rcd 7999 (2001). 361 See CDT Comments at 4. See also http://www.xmradio.com/help/index.xmc. 362 See PFF Comments at 44. 363 See NOI, 24 FCC Rcd at 3353, ¶ 27. Federal Communications Commission FCC 09-69 42 With respect to wireless issues, the Commission received comments primarily from wireless providers; therefore, the discussion below largely does not reflect input from consumers and non-carrier entities. We intend to explore the issues discussed in Section XI below pertaining to parental controls for wireless devices, in particular seeking comments from consumers and non-carrier entities, in a forthcoming NOI. 95. In the NOI, the Commission asked what role the Government should play in ensuring that blocking and filtering tools are made available to parents so that children can be shielded from inappropriate content.364 Industry commenters assert that, even in the absence of regulation, the industry has developed a wide range of blocking technologies and parental control features; therefore, government regulation is unnecessary at this time.365 They further contend that the competitive market has responded to consumer demands for parental controls and predict that more advanced filters and access controls are in development.366 On the other hand, some consumers support a government requirement that filtering technologies be embedded across all platforms of consumer devices that support video applications, including wireless devices.367 Specifically, for example, some consumers express support for making TVGuardian (or similar products) available on all devices that support video content.368 96. The record was limited with respect to wireless solutions (both in terms of number and type of commenters discussing wireless issues and the specific issues addressed). Below we provide a factual overview of the marketplace and the wireless industry’s efforts to educate parents on the options available to them to block unwanted mobile content. We discuss below child protection measures for content offered directly by wireless providers and content available over the Internet that is accessed via wireless devices. We also address non-content-based blocking and filtering technologies and other empowerment tools available to parents. Finally, we discuss the impact of wireless open platforms on these technologies, future developments, and educational efforts. We will address remaining questions regarding wireless solutions in a forthcoming NOI.369 A. Wireless Industry Guidelines and Content Controls 97. As described in the NOI, CTIA and participating wireless carriers have voluntarily adopted child protection measures, both for content offered by wireless providers as well as content available over the Internet and accessed via wireless devices.370 Beginning in 2004, CTIA and 364 See id. at 3355, ¶ 33. 365 See, e.g., CTIA Comments at 2-3; Sprint Comments at 1-2; Verizon Comments at 11-12; T-Mobile Reply at 1, 3. 366 See CTIA Comments at 12. CTIA believes that companies and content providers who are not under the Commission’s jurisdiction would be more likely to participate and follow CTIA-sponsored best practices, which can be adjusted in response to changing consumer expectations and new technologies and applications “in contrast to government mandated regulations that require years of lengthy administrative proceedings to review and revise.” Id. 367 See, e.g., Comments of Jennifer White at 1; Tracie Hall at 1; Bill Buhl at 1. 368 See, e.g., Comments of Mike Coker at 1; Art Gillespie at 1; Johna Oldfield. 369 See infra section XI. 370 See NOI, 24 FCC Rcd at 3353-54, ¶ 29; CTIA Comments at 4. CTIA notes that filters and blocking technologies for carrier-provided content do not include filters for “any end-user generated content (for example, on message boards, chat rooms, or blogs).” CTIA Comments at 4. We also note that the International Telecommunications Union (ITU) has issued draft industry guidelines as part of its Child Online Protection (COP) Initiative, which recognizes CTIA’s Guidelines as an approach to protecting children from inappropriate mobile content. The draft (continued….) Federal Communications Commission FCC 09-69 43 participating wireless carriers began developing Carrier Content Classification and Internet Access Control Guidelines.371 Under these guidelines, participating carriers agree to develop content classification standards and educate consumers about these standards and ratings.372 With respect to Carrier Content (i.e., content that is available through a carrier’s managed content portal and third-party content for which customers may be billed directly by their wireless carrier), carriers generally divide these materials into “Generally Accessible Carrier Content,” which is available to all consumers, and “Restricted Carrier Content,” which is available to wireless users 18 years of age or older or younger users only with specific parental authorization.373 98. Further, CTIA’s voluntary Internet Access Control Guidelines require participating carriers to provide consumers with parental control tools for wireless handsets that are designed to restrict access to content available via the public Internet or other public data networks.374 With respect to this third-party content, the nationwide wireless carriers currently provide consumers with the ability to block all Internet access on their devices and are either providing or researching solutions to provide controls with the ability to limit specific Internet content or sites on consumers’ devices (to be implemented on a carrier-by-carrier basis).375 Although CTIA has developed both the Carrier Content Classification and Internet Access Control Guidelines, it emphasizes that implementation of these guidelines is left to the individual wireless carriers or third-party vendors.376 Further, many of these tools cannot block or filter inappropriate user-generated content, such as “sexting.”377 99. With respect to content controls provided directly by wireless carriers, CTIA explains that wireless carriers currently provide parents with many parental control tools that allow parents to control directly the content their child can access.378 For example, Sprint provides a free content blocking control service that permits parents to restrict Internet access to only designated websites (Continued from previous page) industry guidelines are available at: http://www.itu.int/osg/csd/cybersecurity/gca/cop/guidelines/index.html. Final Guidelines on COP are expected in October 2009. 371 See CTIA Comments at 3-4. 372 See id. at 4. 373 See id. According to CTIA, “Restricted Carrier Content” consists of material that is generally recognized as appropriate only for adults 18 years of age or older, such as material that may contain strong violence or may be sexually explicit, or material that is legally restricted to persons at least 18 years of age, such as lotteries and gambling. Id. 374 See id. at 5-6. 375 See NOI, 24 FCC Rcd at 3354, ¶ 30. See also CTIA Comments at 6. 376 See CTIA Comments at 5. Each of the four nationwide wireless carriers generally follows these guidelines in implementing their individual filtering and blocking technologies. See id. at 7-9. 377 “Sexting” is used to describe texting of sexual images via mobile devices. Once the images are more widely distributed, there are unintended legal consequences to such distribution. Thierer, A., “Parental Controls & Online Protection: A Survey of Tools and Methods,” PFF Special Report, Ver. 4, Summer 2009 (Thierer Report), at 111- 112, available at http://www.pff.org/parentalcontrols/. As Thierer notes, neither laws nor parental controls are likely to be “of much help” in this area. “Legal responses are difficult to craft…[a]nd the only technological solution to this problem is for parents to simply not purchase a phone for their teen that has a camera,” which is difficult given the proliferation of wireless handsets that include cameras. See id. at 112. 378 See CTIA Comments at 6. Federal Communications Commission FCC 09-69 44 deemed appropriate for children 17 and under.379 According to Sprint’s Parental Controls web site, parents may manage this service either online or on the wireless handset itself.380 T-Mobile offers Web Guard: a free service that restricts access to adult-oriented content.381 According to T-Mobile’s web site, Web Guard is an optional service available on specific rate plans only (targeting Web access data plans). 382 It blocks adult-oriented content (but not user-generated content), such as content featuring alcohol, drugs, gambling, pornography, mature content, violence, and weapons.383 AT&T’s MEdia™ Net Parental Control service allows parents to restrict access to inappropriate content.384 Specifically, AT&T’s service (which has no recurring charge to its customers) filters inappropriate Internet content to wireless devices, provided the user has a compatible handset.385 Verizon Wireless offers a free service called Content Filters, which allows parents to set customized limits based on specific age levels: (1) “C7+” for content recommended for children ages seven and older (similar to TV-G); (2) “T13+” for children ages 13 and older (similar to TV-PG/TV 14 or PG 13 rated movies); and (3) “YA17+”for children ages 17 and older (similar to TV-MA or R-rated movies and explicit rated songs).386 This service allows parents to ensure that their children receive only age-appropriate content over their Verizon Wireless device, including content accessible through the Internet (over Verizon Wireless’ Mobile Web 2.0 Browser), V CAST Music and Video, and short code message campaigns.387 379 See Sprint Comments at 2. 380 See http://nextelonline.nextel.com/en/services/safety_security/parental_control.shtml. On its web site, Sprint notes that access to certain parental control features varies, depending on the type of wireless handset used, and recommends that parents consult their phone’s User Guide for further details. 381 See T-Mobile Reply Comments at 2. See also CTIA Comments at 8. 382 For more information on T-Mobile’s Web Guard, see http://www.t- mobile.com/shop/addons/services/information.aspx?PAsset=FamilyWireless&tp=Svc_Tab_FW101ProtectYourKids 383 See T-Mobile’s Web Guard FAQs at: https://support.t- mobile.com/doc/tm23350.xml?related=y&Referring%20Related%20DocID%20List%20Index=5&navtypeid=6&pa getypeid=7&prevPageIndex=9. 384 See CTIA Comments at 7; AT&T Comments at 7. 385 See CTIA Comments at 7. See also AT&T’s FAQ’s on MEdiaNet at: http://www.wireless.att.com/learn/messaging-internet/media-entertainment/faq.jsp#parental_controls_decide. On its web site, AT&T states that it does not offer content that is obscene or pornographic in nature, but there is some MEdia Net content that may not be appropriate for those under age 18—like chat and dating sites—that the Content Filter will block when turned “on.” 386 See Verizon Comments at 7. According to Verizon Wireless’s web site, the following content can be filtered: (1) “Explicit” labeled music on V CAST Music; (2) Content on V CAST Video; (3) Websites accessible via wireless device; and (4) Short code-based messaging campaigns (4 to 6 digit phone numbers that subscribers use to obtain content or participate in various programs. Standard messaging rates apply to short codes. Premium charges may apply for certain short codes). Verizon Wireless states: “Content from other sources, including Get It Now, is not consistently filtered by the service at this time. The service does not filter calls or messages sent by customers to other customers (this includes any content created by customers and sent directly by them to other customers) or content previously available on phones before the service was enabled.” http://support.vzw.com/faqs/Features%20and%20Optional%20Services/content_filtering.html#item1. See also https://wbillpay.verizonwireless.com/vzw/nos/uc/uc_content_filter.jsp; PFF Comments at 65; CTIA Comments at 9. 387 See Verizon Comments at 7. See also CTIA Comments at 9. On its web site, Verizon indicates that Content Filtering works on most mobile phones, most PDAs, and most PC cards, but will not work on BlackBerry® devices, any device with a static IP address or on search results provided through the Get It Now or Song ID search (continued….) Federal Communications Commission FCC 09-69 45 100. With respect to content controls created by third parties, a number of applications have been developed to filter Internet content accessed via wireless devices. Ace*Comm’s Content Patrol offers a third-party network-based solution that allows filtering of wireless web and Wireless Application Protocol (“WAP”)-based content.388 Further, several parental control applications have been developed for the iPhone platform,389 which, in the United States, operates only on the AT&T network. One of these applications, the Mobicip browser (available to parents for a monthly fee), provides real- time content filtering at three pre-defined, age-based levels.390 Further, Microsoft recently announced the Windows Marketplace for Mobile, which will allow parents to prohibit applications containing adult content, including applications featuring excessive violence, consumption of alcohol, sexual content, and excessive profanity.391 1. Using Content Controls 101. The NOI also requested comment on whether content controls were effective and easy to understand and activate by parents, and sought information on the extent to which parents use them.392 According to PFF, the Yankee Group reports that 72 percent of teens between ages 13 and 17 already have a mobile phone.393 The Commission did not receive any data on parental use of content controls for wireless devices. While we do not have precise data on parental use of content controls, according to a recent survey, among those teens whose parents are aware they go online through a cell phone, only one in five have parents that limit or control that online time and just over half have parents who have talked to them about Internet safety on their cell phone.394 Wireless providers comment regarding the (Continued from previous page) capabilities. Additionally, the music filtering capabilities of the service do not work on devices with certain V CAST Music software (Music v01.0 or v01.01); and the Internet filtering capabilities will not work with devices utilizing Mobile Web 1.0, or on devices that use the Venturi data compression software, including phones tethered to PCs or PC cards, unless the compression software is turned off. Verizon Wireless notes that Content Filtering may not work outside the National Enhanced Services Rate and Coverage Area. See http://support.vzw.com/faqs/Features%20and%20Optional%20Services/content_filtering.html#item1. 388 See CTIA Comments at 10. 389 See PFF Comments at 68; CTIA Comments at 11. These applications – Mobicip, Safe Eyes Mobile, and iWonder – consist generally of a browser that replaces the installed Apple browser on the device. See PFF Comments at 68. While PFF notes that these filtering tools currently work only with Apple’s iPhone, it asserts that this “will likely change in coming months.” See id. at 68-69. 390 See CTIA Comments at 11; PFF Comments at 68 (noting that Mobicip costs $9.99 for the premium version of its software). Another iPhone application, the Safe Eyes Mobile browser (which has a retail price of $19.95), allows parents to choose from 35 categories to determine the specific types of content that will be allowed or blocked, and allows parents to change settings remotely through a web-based interface. See PFF Comments at 68. A third iPhone application, iWonder, works in a similar fashion to Safe Eyes Mobile, allowing parents to disable wireless web browsing or block access to certain web sites (and costs $14.99). See CTIA Comments at 11; PFF Comments at 68. 391 See Microsoft Comments at 11. Windows Marketplace for Mobile allows consumers to download applications for wireless phones running Microsoft’s upcoming Windows Mobile 6.5 software. 392 See NOI, 24 FCC Rcd at 3354, ¶ 31. 393 See PFF Comments at 63. 394 Cox Communications Teen Online & Wireless Safety Survey: Cyberbullying, Sexting, and Parental Controls (May 2009) at 49. The survey was conducted by Harris Interactive for Cox Communications, in Partnership with the National Center for Missing & Exploited Children® (NCMEC) and John Walsh, regarding teen (ages 13-18) use of the Internet and wireless devices. The survey found that about one in five teens go online via their wireless phone, and among those, one in five say that their parents are not aware that they do. Id. at 48. According to a (continued….) Federal Communications Commission FCC 09-69 46 ease with which parents can activate, use, and learn about carriers’ content controls. Sprint and Verizon assert that their controls are easy to use and activate through the customer’s wireless handset, the carrier’s website, or by calling customer care.395 AT&T notes that its content control service, “AT&T Smart Limits™,” includes a suite of wireless parental controls and an online portal that explains all of the parental control features available for its services, including directions on how to use the controls for wireless, Internet, video and home phone services.396 102. The Commission also sought comment on how the content rating systems operate.397 In response, the Commission received extremely limited information. As discussed above, a number of wireless carriers offer certain blocking or filtering technologies.398 They do not, however, provide in their comments further specifics regarding the mechanisms used to filter inappropriate content.399 CTIA notes that the Safe Eyes Browser system uses “a blacklisted website address categorization and filtering approach to prevent viewing of and visits to certain sites.”400 With respect to how content is rated, the nationwide wireless carriers appear generally to follow CTIA’s guidelines. Specifically, Verizon states that its content classification levels are similar to TV Parental Guidelines and MPAA rating systems.401 According to AT&T’s web site, AT&T uses an internal content review process to determine whether content is appropriate for minors.402 T-Mobile uses a third party vendor to assist in reviewing and blocking content for its Web Guard feature, which maintains the list of blocked URL’s.403 Microsoft also notes that the ESRB, which provides video games rating information, recently has begun rating games that are playable on mobile phone handsets.404 (Continued from previous page) Nielsen survey, 62 percent of teens using mobile devices say that parents have “placed at least one restriction on their mobile use.” See Nielsen, How Teens Use Media, June 2009, at 8-9. In both of these surveys, however, it is unclear whether parents are limiting their child’s mobile phone/mobile Internet use via an advanced blocking technology, or through a parental rule (e.g., prohibiting mobile phone/Internet use at the dinner table). 395 See Sprint Comments at 2-3; Verizon Comments at 7-8. 396 See AT&T Comments at 6. See also www.att.com/smartlimits. 397 See NOI, 24 FCC Rcd at 3354, ¶ 31. 398 See supra ¶¶ 98-100. 399 Although the carriers do not describe in their comments how precisely the content is filtered, they do provide some specific information on their web sites regarding what type of content is filtered. For additional information on specific content controls, see the following web sites: AT&T (http://www.wireless.att.com/learn/messaging- internet/media-entertainment/faq.jsp#controls); Sprint (http://nextelonline.nextel.com/en/services/safety_security/parental_control.shtml); T-Mobile (http://www.t- mobile.com/shop/addons/services/information.aspx?tp=Svc_Tab_IncludedServices&tsp=Svc_Sub_ContentControl); and Verizon (https://wbillpay.verizonwireless.com/vzw/nos/uc/uc_content_filter.jsp). 400 CTIA Comments at 11. 401 See Verizon Comments at 7. 402 See http://www.wireless.att.com/learn/messaging-internet/media-entertainment/faq.jsp#parental_controls_decide. AT&T notes it is also participating in CTIA’s industry efforts to develop content ratings, which, according to AT&T, “may be used in conjunction with Parental Controls in the future.” 403 See T-Mobile’s Web Guard FAQs at: https://support.t- mobile.com/doc/tm23350.xml?related=y&Referring%20Related%20DocID%20List%20Index=5&navtypeid=6&pa getypeid=7&prevPageIndex=9. 404 See Microsoft Comments at 11. Federal Communications Commission FCC 09-69 47 2. Filtering Content Using Digital Watermarking 103. Digimarc and DWA suggest that digital watermarking would be an effective way to enable parents to filter inappropriate content accessible across various distribution platforms, including wireless devices.405 Digital watermarking enables the use of any rating system, allowing parents to block or allow content based on a set of labels parents can select. Rating systems and their associated labels can be provided either by content owners, content distributors (such as satellite, cable, or the Internet), or vendors of devices, and digital watermarks from one vendor can work and coexist with other digital watermarks from other vendors.406 Some consumers express support for a uniform rating system across all platforms.407 Because digital watermarking allows ratings-related information to be embedded into the content itself,408 it might allow parents more precise Internet blocking technologies than those technologies implementing CTIA’s Internet Content Access Control guidelines, which enable parents to block access to specific web sites. As discussed above, however, some commenters express concern that digital watermarking could also be used for DRM functionality and that intellectual property licensing terms for this technology are unknown.409 B. Non-Content-Based Blocking and Filtering Technologies 104. In addition to the content-based blocking technologies described above, the NOI also sought information on any other types of technologies currently available to consumers for use on wireless devices.410 Commenters mention several technologies that allow parents to view the information children receive over their wireless devices.411 For example, the “iWonder” browser, for use on Apple’s iPhone, allows parents to view remotely from their own computer or wireless device the web sites that the child visits and also allows parents to disable wireless web browsing or block access to certain web sites.412 As referenced in the NOI, eAgency’s “Radar – My Mobile Watchdog” parental monitoring system is a handset-based solution that sends parents an alert when a child receives calls and messages from unauthorized or unapproved sources and also allows parents to view and archive remotely all of the text, e-mail, and instant messages that their child sends and receives.413 Ace*Comm’s “Content Patrol™” service also offers a range of services that allow parents to restrict usage of wireless devices, such as restricting use to certain times of day or limiting the specific phone numbers a child can 405 See, e.g., Digimarc Comments at 2, 4-5, 10; DWA Comments at 6. Digital watermarking is discussed in greater detail in Section II.C.4 above. 406 See Digimarc Comments at 5; Digimarc Reply at 2, 4. Digital watermarks can carry both semantic information and a reference number and can block based on ratings. See Digimarc Comments 5-6. For example, when a mobile device is enabled to read the watermark, it can allow parents to set parameters of content accessibility, such as: Block all “Mature Audience” content and/or “look up sub-rating of designated ‘Mature Audience’ and block ‘TV- 14’ and higher designations.” See id. at 5. 407 See, e.g., Comments of Nancy Brennan at 1; Robert Matthews at 1. 408 See DWA Comments at 6. 409 See supra ¶ 83. See also CEA Reply at 10-11; TiVo Reply at 3. 410 See NOI, 24 FCC Rcd at 3354-55, ¶ 32. 411 See, e.g., CTIA Comments at 10-11; PFF Comments at 66. 412 See CTIA Comments at 11. 413 See id. at 10; PFF Comments at 66. According to PFF, this service costs $10 per month for one user or $15 per month for an entire family. See PFF Comments at 66. Federal Communications Commission FCC 09-69 48 call.414 105. In addition to restricting access to inappropriate content or monitoring messages, wireless carriers themselves also provide tools to help parents set customized limits for each child. Although specific parameters – including cost of the service – vary by provider, these services allow parents to manage how and when children use their phones, including limitations on time, dollar amount, and number of messages or downloads a child receives.415 Many wireless carrier plans also allow parents to place restrictions on the specific individuals that their children are permitted to contact on their mobile phones.416 Below, we provide brief descriptions of the parental control limits offered by the nationwide wireless carriers, as well as a survey of location-based services and other technologies that have been developed to aid parents in monitoring and limiting their child’s mobile phone usage. 1. General Limits on Wireless Phone Use 106. AT&T. With AT&T’s Smart Limits for Wireless™, parents can set monthly limits on the number of text and instant messages their children send and receive; the amount of web-browsing allowed per billing cycle; the dollar amount of downloadable purchases (e.g., ringtones, games); and the times of day when the phone can be used for texting, browsing, or outbound calling.417 Through this program, parents can also block messages or calls to certain numbers.418 107. Sprint. Sprint’s free parental controls give parents the ability to (1) restrict premium content purchases; (2) disable data usage and access to the Internet; (3) disable text messaging entirely or block incoming text messages from specific numbers; and (4) limit incoming and outgoing voice calls to phone numbers specified in the handset’s phone book.419 Parents can also lock device features, such as the handset’s camera, on particular wireless devices.420 108. T-Mobile. One of T-Mobile’s services, Family AllowancesSM, allows parents to manage their child’s account activity to reduce overage charges and control their child’s phone usage.421 For a monthly fee, the Family AllowancesSM service allows parents to assign allowances for minutes, messages, and downloads to multiple lines on the account.422 In addition, parents can set up to ten “Always Allowed” SM and ten “Never Allowed” SM numbers, and block usage during certain times of the 414 See CTIA Comments at 10. 415 See PFF Comments at 65. 416 See id. at 65-66. 417 See AT&T Comments at 6; see www.att.com/smartlimits. See also CTIA Comments at 7; PFF Comments at 65. 418 See AT&T Comments at 6; see also CTIA Comments at 7; PFF Comments at 65. 419 See Sprint Comments at 2. See also http://nextelonline.nextel.com/en/services/safety_security/parental_control.shtml; CTIA Comments at 8. 420 See Sprint Comments at 2; CTIA Comments at 8. 421 See T-Mobile Reply at 1; see http://www.t- mobile.com/shop/addons/services/information.aspx?PAsset=FamilyWireless&tp=Svc_Tab_FW101FamilyAllowanc es. 422 See T-Mobile Reply at 1-2. Federal Communications Commission FCC 09-69 49 day (in most cases).423 T- Mobile also offers – free of charge – its Message Blocking Service, which allows parents to block incoming and outgoing text messages (SMS), picture messages (MMS), instant messages (IM), and e-mail.424 109. Verizon Wireless. Verizon Wireless provides “Usage Controls,” which, for a monthly fee per line, allow parents to: (1) limit the times of day during which their child can use messaging or wireless data services; (2) block calls or messages to or from certain phone numbers; (3) set monthly voice minute and messaging allowances and receive free alerts when a child approaches or reaches the allowance; and (4) designate trusted numbers from which a child can always be reached, even outside of the designated time of use and regardless of usage allowances.425 2. Location-Based Services and Other Technologies 110. CTIA has developed a set of Consumer Best Practices guidelines to protect user privacy for Location-Based Services.426 Many wireless carriers offer global positioning system (“GPS”) tracking technology in their mobile handsets, which allows parents to locate their children and monitor their whereabouts.427 Sprint’s Family Locator service allows parents to monitor a child’s location by using the GPS chip in the mobile phone.428 Verizon Wireless offers the ChaperoneSM Family Locator service, a tool that helps parents monitor the location of a child’s wireless phone at all times using either the ChaperoneSM Website or the ChaperoneSM Parent application on parents’ own mobile phones.429 The ChaperoneSM service also includes Child Zone capabilities, which allow parents to establish geographical boundaries around specific locations, such as school, home, or soccer practice.430 In addition to carrier- provided services that assist parents in tracking their child’s location, a number of third parties offer location-based services. The Wherify “Wherifone” offers GPS location tracking via the Internet, and 423 See id. at 1-2; CTIA Comments at 8-9. “Always Allowed” SM numbers are reachable even when a user has exceeded a set maximum, and 911 calls do not count against the allowed numbers and minutes. See CTIA Comments at 8-9. 424 See T-Mobile Reply at 2-3. See also CTIA Comments at 8. 425 See Verizon Comments at 8; CTIA Comments at 9. See also https://wbillpay.verizonwireless.com/vzw/nos/uc/uc_home.jsp. Parents can customize these settings for each line on the account. Designated trusted numbers are limited to other lines on the same account. 426 See CTIA Comments at 18. According to CTIA, under these guidelines, Location-Based Services providers must give notice to users about how location information will be used, disclosed, etc., and must give users the opportunity to give their consent prior to certain uses (such as disclosing information to third parties). See CTIA Comments at 18-19. These guidelines assist parents by ensuring that social mapping and networking services do not allow unauthorized individuals to monitor their children’s whereabouts. See PFF Comments at 69-70. 427 See PFF Comments at 65-66. 428 Sprint’s service costs 5 dollars monthly per family. See Sprint Comments at 2. See also http://www.nextel.eom/en/services/gps/familv locator.shlml. 429 See Verizon Comments at 8 430 See id. See also http://products.vzw.com/index.aspx?id=fnd_chaperone; CTIA Comments at 9; PFF Comments at 68. When a child carrying a registered Chaperone service mobile phone arrives at or leaves the Child Zone, the parent receives a notification via text message. See Verizon Comments at 8. Parents can elect to receive text message alerts notifying them of the location of the child’s phone at a specific date/time, similar to a curfew check. See id. Federal Communications Commission FCC 09-69 50 includes an SOS panic button for emergencies.431 Guardian Angel Technology produces a GPS mobile phone that also allows parents to monitor their children’s movements via the Internet.432 In addition to using Location-Based wireless services to monitor one’s child, another application is “social mapping.” Social mapping allows subscribers to find others on a digital map and then instantly network with those individuals through social networking utilities.433 CTIA and the industry are currently working to create safeguards to ensure that information over social mapping networks is not shared inappropriately.434 111. In addition to usage controls available for wireless services and location-based services, specific mobile devices have been designed for younger users. For example, Firefly Mobile has created a voice-only phone for very young children that allows them to call their parents and emergency services via pre-programmed numbers that are represented by icons on the mobile phone.435 Verizon Wireless’s “Migo,” like the Firefly Mobile phone, also has a limited number of buttons for parents to program.436 Enfora’s TicTalk phone (in partnership with the educational toy maker LeapFrog Enterprises) allows parents to restrict numbers that can be called only during certain times of the day and determine at what times during the day the phone can ring.437 C. Open Platform Issues 112. The NOI also sought comment on how blocking and filtering will be affected as wireless carriers move toward open platforms.438 CTIA asserts that wireless consumers have unprecedented access to “open” third-party devices, content, and applications.439 Although not commenting in this 431 See PFF Comments at 67. The “Wherifone” also allows parents to program phone numbers and can restrict the downloading of games and text messages. See id. 432 See id. The Guardian Angel GPS phone allows parents to keep a record of their child’s precise movements for a 30-day period. See id. For instance, when a child is traveling in a car, the phone can monitor how fast the car is going and the direction in which it is heading. See id. 433 See PFF Comments at 69; Thierer Report at 110-111. 434 For example, Google, Loopt, and Helio have already established user privacy safeguards. See CTIA Best Practices and Guidelines for Location-Based Services, www.ctia.org/business_resources/wic/index.cfm/AID/11300. See, e.g., Loopt’s safety and privacy guide, https://loopt.com/loopt/beSafe.aspx. 435 See PFF Comments at 67 (the Firefly Mobile phone contains only five buttons, two of which “have small icons symbolizing Mom and Dad…[and] comes in several colors and contains a variety of accessories geared toward kids”). 436 See id. at 68. 437 See id. at 67. Parents can also enter phone numbers that children can call at any time of day. See id. 438 See NOI, 24 FCC Rcd at 3354-55, ¶ 32. In the 700 MHz Second Report and Order, 22 FCC Rcd 15289 (2007), the Commission adopted an “open platform” rule that requires licensees of the Upper 700 MHz Band C Block to allow consumers to use the handset of their choice and download and use the applications of their choice, subject to certain reasonable network management conditions that allow the licensee to protect the network from harm. Following adoption of this rule, some wireless carriers have announced that they will voluntarily make their networks more open to devices and/or applications. 439 See CTIA Comments at 16. Further, CTIA notes that “As open device and application initiatives take hold in the marketplace, CTIA expects both carriers and third party vendors will continue to focus on the task of introducing groundbreaking technologies that not only provide additional open platforms and applications, but also on providing a new generation of parental controls that are as effective in an open environment as they are within a carrier’s walled garden.” Id. at 17. Federal Communications Commission FCC 09-69 51 proceeding, other entities have recently criticized the claims of “openness” of wireless networks in related Commission proceedings.440 CTIA notes that wireless carriers have made great strides in ensuring that third-party content filtering applications and access controls can be compatible with wireless devices and services.441 CTIA also asserts that parents can independently download third-party parental control solutions to their wireless devices through various sources, including wireless “app stores,” web sites, and other outlets.442 D. Future Developments 113. The NOI also sought information on blocking or filtering technologies for wireless devices that are currently in development.443 Although the record on this issue was scant, commenters briefly addressing the issue predict that more advanced filters and access controls for wireless devices will be developed.444 Given the competition within the wireless industry, however, carriers report that they cannot disclose their specific competitive offerings prior to launch.445 Some individual commenters support extending filtering technology, such as TVGuardian, to mobile devices.446 Further, some individuals indicate they are willing to pay a modest fee for this service – less than $5 for 6 months, for example.447 E. Educational Efforts 114. In the NOI, the Commission requested information on how wireless providers educate consumers on existing filtering technologies, as well as how consumer and trade organizations should publicize the development, deployment, and use of filtering technologies.448 CTIA reports that wireless carriers such as Sprint have worked with the National Center for Missing & Exploited Children (“NCMEC”) and the National Education Association (“NEA”) to develop educational tools and initiatives aimed to improve wireless and Internet safety awareness.449 Specifically, Sprint’s 440 See, e.g., Letter from Christopher Libertelli, Skype S.A.R.L., to Julius Genachowski, Chairman, FCC, RM- 11361, WT Docket No. 09-66 (Jun. 29, 2009); Letter from Ben Scott and Chris Riley, Free Press, to Michael Copps, Acting Chairman, FCC, WC Docket No. 07-52 (Apr. 3, 2009). 441 See CTIA Comments at 9-10. 442 See id. 443 See NOI, 24 FCC Rcd at 3354-55, ¶ 32. 444 See, e.g., CTIA Comments at 12 (“more advanced filters and access controls are most certainly on the way”); T- Mobile Reply at 3 (“T-Mobile continues to enhance [its parental control] offerings, as well as explore other initiatives that would be useful for parents in managing their children’s online experiences”); PFF Comments at 70. 445 See Sprint Comments at 3 (“Sprint does have additional parental control features under development that it intends to offer parents in the future. But as the Commission will appreciate, given the intense competition within the wireless industry, Sprint cannot disclose its competitive offerings prior to launch.”). 446 See, e.g., Comments of Brenda Prosser at 1; Diane Finnan at 1; William Bauza at 1; Art Gillespie at 1. 447 See, e.g., Comments of Curtiss Wilson at 1; Barbara Jenkins at 1; James Sammons at 1. 448 See NOI, 24 FCC Rcd at 3355, ¶ 33. 449 See CTIA Comments at 8. In addition to ways to make a child’s wireless experience safer, in 2005 the wireless industry and The Wireless Foundation partnered with the United States Department of Justice and NCMEC to create the Wireless AMBER AlertsTM Program, a “key example of the wireless industry’s commitment to harnessing the convenience and ubiquity of wireless technology to safeguard children.” Id. at 13. The Wireless AMBER AlertsTM (continued….) Federal Communications Commission FCC 09-69 52 4NetSafetySM program provides individuals with the tools and information they need to teach minors how to use the Internet more safely.450 Through this program, individuals can also access (for free) the bNetS@vy, an online resource created by the NEA Health Information Network (“HIN”) that offers adults information to help teach children – and pre-teens in particular – how to navigate the Internet safely.451 Verizon Wireless notes that on its website it has posted a set of recommendations about steps parents can take to control their children’s access to certain materials – regardless of the technology platform used.452 115. Similarly, Cox’s “Take Charge” program includes a web site to educate parents, which includes a list of chat acronyms that children use on cell phone text messages and instant messages.453 Cox states that in 2009, its Take Charge program will emphasize safety on wireless phones and will focus on smartphones’ Internet access and the importance of using parental controls with mobile devices.454 In its comments, Cox notes that it will conduct new research on teen behavior patterns on the Internet using mobile devices.455 In May 2009, Cox released a report summarizing its findings.456 116. In addition, the Wireless Foundation, a non-profit organization established by CTIA’s member companies in 1991, educates children, parents, teachers, and policymakers about the tools the wireless industry provides to ensure that children are safe while using wireless technology.457 For example, it maintains a “Wireless Online Safety” section on its website, which contains information for (Continued from previous page) Program provides free text messages available to wireless subscribers who have signed up to receive such messages when a child has been abducted, thereby allowing alert recipients to serve as the extra “eyes and ears that public safety officials vitally need” in such situations. See id. 450 See CTIA Comments at 8; Sprint Comments at 3-4. 451 See Sprint Comments at 4. 452 See Verizon Comments at 10-11 (“These include: talking to children to create an environment that allows honest and open dialog with children about their media activities and experiences; using all available parental control software to filter out potentially harmful, inappropriate, or offensive content; surfing the Internet, watching TV, and enjoying wireless content together with their children to help them learn to recognize and anticipate the risks associated with certain online content; using usage controls and parental controls software to monitor television, personal computer, phone, and wireless use and setting limits where appropriate; moving the TV and personal computer to open areas of the home, with the screens facing out and visible at all times, to better monitor children; and joining their children’s online social networks so that parents can make sure they know who their children’s online and wireless friends are”). See http://parentalcenter.verizon.radialpoint.net/. 453 See Cox Comments at 5. Cox notes a 2005 survey that showed that only five percent of the surveyed parents knew that “POS” was an alert to others in the chat that there was a “Parent Over their Shoulder” and that only four percent knew that “P911” was an alert that a parent was nearby. See id. 454 See id. (Cox “continues to examine and evaluate emerging content filtering technologies, such as editable video- on-demand content and technologies using customizable rating systems”). 455 See id. at 11. 456 See Cox Communications Teen Online & Wireless Safety Survey: Cyberbullying, Sexting, and Parental Controls (May 2009), available at http://www.cox.com/takeCharge/includes/docs/2009_teen_survey_internet_and_wireless_safety.pdf. 457 See CTIA Comments at 13. Further, in 2008, CTIA created the Wireless Child Safety Task Force, which aims to further deter child pornography on wireless networks while safeguarding consumer privacy. See id. at 15. This Task Force also plans to develop an educational initiative to inform parents and children about best practices for safe wireless Internet behavior. See id. CTIA has submitted the Wireless Child Safety Task Force for inclusion in the International Telecommunications Union’s “Child Online Protection Initiatives Around the World” program. See id. Federal Communications Commission FCC 09-69 53 parents and educators, such as links to wireless carriers’ content access controls, and a “model Family Cell Phone Usage Agreement – a contract that parents can use to frame family discussions about safe and responsible use of wireless devices, and to educate the entire family regarding the potential threats to children from harmful content, unwanted contact, and inappropriate conduct.”458 The wireless industry has also been active in the Family Online Safety Institute (“FOSI”), a Washington-based, international organization established to identify best practices in the field of online safety.459 Additionally, CTIA notes that the wireless industry is participating in the National Telecommunications and Information Administration’s Online Safety and Technology Working Group.460 VI. NON-NETWORKED DEVICES 117. In the NOI, the Commission inquired as to the existence and availability of blocking technologies for non-networked devices capable of receiving video or audio programming, particularly DVD players and VCRs.461 We noted that, unlike wired, wireless, or Internet platforms, which directly distribute video or audio content to consumers, DVD players and VCRs are dependent on video discs or videotapes to distribute content, and that this situation gives parents greater control over DVD players and VCRs than they have over other distribution platforms.462 We invited comment on whether blocking technologies exist or are under development for DVD players and VCRs and, if so, how these technologies compare to blocking technologies available for other distribution platforms and networked devices.463 We also sought comment on whether blocking technologies exist for similar non-networked devices, such as digital audio players (MP3 players) and portable media players, and, if so, the extent to which those technologies might be used by parents.464 Additionally, we inquired as to what methods would be effective in encouraging the development and use of such technologies.465 Finally, we inquired whether the MPAA rating system generally used for movies on DVDs and video tapes is effective.466 118. Only a few commenters address these issues. CustomPlay, PFF, TVGuardian, Digimarc, DMA, and DWA each discuss blocking technologies that are applicable to various distribution platforms, including DVD players, VCRs, and similar non-networked devices, such as digital audio players and portable media players.467 No commenter specifically addresses the effectiveness of the 458 See id. at 13-14. 459 See id. at 15; FOSI Comments at 3-5. On April, 22, 2009, The Wireless Foundation and FOSI co-sponsored a wireless online safety conference, with a focus on wireless-specific aspects of online safety such as mobility and location-based services. See FOSI Press Release at http://www.fosi.org/cms/index.php/pr2009/43-pr-2009/358- wireless-online-safety-conference.html. Appendix A of FOSI’s comments provides a summary chart of the online safety initiatives of its members. 460 See CTIA Comments at 16. CTIA notes that the Working Group was established under Section 214 of the Protecting Children in the 21st Century Act. See id. (citing Protecting Children in the 21st Century Act, Pub. L. No. 110-385, § 214, 122 Stat. 4096, 4103-04 (Oct. 10, 2008) (to be codified at 15 U.S.C. § 6554)). 461 See NOI, 24 FCC Rcd at 3355, ¶ 34. 462 See id. at 3355-56, ¶ 35. 463 See id. at 3356, ¶ 36. 464 See id. 465 See id. 466 See id. 467 See CustomPlay Comments at 3, 4; PFF Comments at 27-32; TVGuardian Comments at 19-20, 26 and Appendix C; Digimarc Comments at 5; DMA Comments at 6-8; DWA Comments at 5-7. NARM addresses audio-only (continued….) Federal Communications Commission FCC 09-69 54 MPAA rating system with regard to movies on DVDs and video tapes. 119. CustomPlay states that it has developed a content customization system that utilizes the capabilities of random access technologies, such as DVD players and VOD services, to selectively play, skip, or mute portions of a motion picture.468 CustomPlay notes that information provided by a source other than the motion picture identifies the content of segments in that picture.469 According to CustomPlay, this information enables a random access device to customize, in real time, the presentation of a motion picture, and this customization is responsive to a viewer’s content preference for a level of explicitness in 14 separate categories of possible objectionable content.470 120. PFF notes that one company, ClearPlay, produces a unique DVD player that eliminates profanity, violence, and nudity from certain movies.471 PFF states that ClearPlay does not produce pre- edited DVDs, but rather places filters into its DVD player, enabling it to know when to skip or mute while the movie is playing.472 Therefore, PFF states, consumers do not have to purchase special DVDs; rather, they only need to purchase a ClearPlay DVD player and download the codes for their movies to activate the filtering controls.473 PFF explains that ClearPlay’s MaxPlay DVD player retails for under $70 and comes loaded with the filters for about 1,000 popular movies, with access to new movie filtering codes available at a monthly membership fee of $7.95.474 PFF reports that ClearPlay’s technology has raised copyright concerns and was opposed by many movie directors and studios, but PFF observes that in 2005 Congress exempted services like ClearPlay from any copyright liability.475 PFF notes, however, that other types of pre-edited DVD software service – “scrubbed” DVDs – were ruled to violate copyright laws by a U.S. district court judge in 2006 and are no longer available.476 121. As discussed above, TVGuardian is an example of a technology that filters language based on closed captioning information.477 TVGuardian states that its AFLFT has already been deployed in approximately 12 million DVD Players, VCRs, and combination units.478 According to TVGuardian, over the past two years, DVDs have been increasingly distributed with a new caption format, called Subtitles for the Deaf and Hard-of-Hearing (“SDH”), rather than closed-captions in the television format (Continued from previous page) devices and asserts that Congress did not intend for the Commission to address technologies relating to such devices, including MP3 players and other portable audio devices. See NARM Comments at 1. 468 See CustomPlay Comments at 1. 469 See id. 470 See id. 471 See PFF Comments at 42. 472 See id. 473 See id. 474 See id. 475 See id. PFF notes that this legislation – The Family Movie Act of 2005, Pub. L. No. 109-9, Title II, 119 Stat. 223 (2005) (codified at 17 U.S.C. § 101 note) – was included in The Family Entertainment and Copyright Act of 2005, Pub. L. No. 109-9, 119 Stat. 218 (2005), and was signed into law on April 27, 2005. See id. 476 See id. at 43. 477 TVGuardian can operate with both networked and non-networked technologies. Accordingly, we also discuss TVGuardian in Section II.C above pertaining to devices for television. 478 See TVGuardian Comments, Appendix C at 3. Federal Communications Commission FCC 09-69 55 standard.479 TVGuardian states that its technology cannot easily read the SDH format.480 TVGuardian states that its technology faces a similar problem with Blu-Ray players.481 TVGuardian explains that its technology works for movies shown on television (broadcast or pay-TV) because the standard closed- captioning format is required by law.482 122. As discussed above, Digimarc and DWA discuss the potential for digital watermarking to provide advanced blocking for non-networked devices, as well as across multiple media platforms.483 Digimarc recommends that the Commission focus on approaches to parental control in which the data that enables such control is contained in the content itself, such as digital watermarking.484 As also discussed above, CEA expresses concern that proponents of digital watermarking are using the issue of parental controls over objectionable content as an avenue to accomplish their goal of requiring televisions and other devices to incorporate DRM functionality.485 In addition, CEA argues that watermarking raises a number of intellectual property and other technical issues.486 123. While the record reflects that parental control technologies exist for DVD players, VCRs, and similar non-networked devices, the record is lacking data in a number of areas regarding parental control devices for these devices that the Commission intends to explore in a forthcoming NOI.487 VII. INTERNET A. Internet 124. The NOI asks about “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” that “may be appropriate across a wide variety of distribution platforms, including …Internet platforms.”488 During the first quarter of 2009, children between the ages of two and 11 spent an average of one hour and 45 minutes per month watching video over the Internet, and teens between the ages of 12 and 17 spent two hours and 50 minutes per month watching video over the Internet.489 This section will concentrate on video programming accessible over the Internet, and is informed by previous online safety work. After providing a technical discussion regarding the availability of video on the Internet, we consider the variety of parental controls. We discuss how numerous solutions are available that address different risks, and note that an effective approach to online safety requires multilayered solutions, including 479 See id. 480 See id. 481 See id. 482 See id. 483 See generally Digimarc Comments; DWA Comments. Digital watermarking can operate with both networked and non-networked technologies. Accordingly, we also discuss digital watermarking in Sections II.C and V above pertaining to networked devices (television and wireless). 484 See Digimarc Comments at 1. 485 See CEA Reply at 10. 486 See id. at 10-11. See also TiVo Reply at 3. 487 See infra section XI. 488 See NOI, 24 FCC Rcd at 3356, ¶ 37. See also Child Safe Viewing Act at Section 2(b)(1), 2(d ). 489See The Nielsen Company, A2/M2 Three Screen Report, 1st Quarter 2009, at 3, Table 3. In addition, teens aged 13-17 spent an average of 6 hours and 30 minutes per month watching video on a mobile telephone. Id. Federal Communications Commission FCC 09-69 56 software solutions, network service provider solutions, content service provider solutions, education, acceptable use policies, and supervision. The record is lacking data in a number of areas regarding Internet parental control technologies, which we intend to explore in a forthcoming NOI.490 B. Introduction 125. The complexities of the Internet present unique challenges.491 On the Internet, a multitude of individuals, applications, and content492 interact, with no centralized points of control.493 The same content can be hosted at a variety of sites. Individuals can create content, making it available to everyone in the world. 126. The number of suppliers of online video and audio is almost limitless, the supply chain is fragmented, and the content can come from sources outside the jurisdiction of the United States.494 Video and audio can be delivered through web pages, email attachments, chat rooms, text messages and tweets, bulletin boards, peer-to-peer file sharing, and video and audio applications.495 While there are some video hosts that dominate the video market, such as the top online video site YouTube, anyone with access to online storage can make videos and audio recordings available. Producers of content may be commercial or non-commercial, individuals or corporations.496 127. As noted in the NOI, the Internet as an open network permits parents to select among a 490 See infra section XI. 491 See Dick Thornburgh and Herbert S. Lin, Youth, Pornography, and the Internet, Computer Science and Telecommunications Board, National Academies Press (2002), at 3 (“NAS Report”) (“[C]ompared to other media, the Internet has characteristics that make it harder for adults to exercise responsible supervision over children’s use of it.”); Final Report of the COPA Commission Presented to Congress (2000), http://www.copacommission.org/report/executivesummary.shtml, at 13 (“COPA Report”) (“unlike one-way broadcast media, the Internet is inherently multi-directional and interactive.”). 492 See COPA Report at 13 (“thousands of access providers and millions of potential publishers provide content online.”). 493 See Dr. Tanya Byron, Safer Children in a Digital World: the Report of the Byron Review (2008) (“Byron Review”) at 5 (“there is no obvious single point at which editorial control can be exercised. This means that it is very difficult for national Governments to reduce the availability of harmful and inappropriate material”); NTIA Study of Technology Protection Measures pursuant to the Children’s Internet Protect Act, Report to Congress, Children’s Internet Protection Act, Pub. L. 106-554, Study of Technology Protection Measures in Section 1703, Sec. I (2003), http://www.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/CIPAreport_08142003.htm (“CIPA Study”) Sec. II.A (describing Internet as “decentralized”). Examples of governments having difficulty imposing control over Internet content, including video content, abound. See, e.g., Brian Stelter & Brad Stone, Web Pries Lid Off Iranian Censorship, N.Y. Times (Jun. 22, 2009), http://www.nytimes.com/2009/06/23/world/middleeast/23censor.html. 494 See COPA Report at 13 (“Material published on the Internet may originate anywhere, presenting challenges to the application of the law of any single jurisdiction.”); American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775, 789 (E.D. Pa. 2007) (“Gonzales”) (discussing amount of adult websites that are outside the United States). 495 Specific types of video and audio applications are discussed below. See NAS Report at 6 (discussing different applications that can distribute offensive content). 496 See NAS Report at 4 (Congress requested that the National Academies of Sciences “conduct a study of computer- based technologies and other approaches to the problem of the availability of pornographic material to children on the Internet.”) at 4. See also Gonzales, 478 F. Supp. 2d at 798-799; American Civil Liberties Union v. Mukasey, 534 F.3d 181, 200 (3rd Cir. 2008) (“Mukasey”) (discussing commercial and non-commercial content). Federal Communications Commission FCC 09-69 57 wide variety of parental control technologies available in a competitive market.497 On the Internet, safety solutions can operate independently without coordination with, cooperation with, or permission from content producers or network service providers. As discussed below, the disaggregation of content, sources, applications, access, and networks on the Internet means that there is no single Internet safety solution. As the COPA Report stated, “[m]ethods to protect children from content harmful to minors must be effective in this diverse and decentralized environment.”498 As many others have concluded, online solutions are complex.499 128. The Commission asked in the NOI how the value of the Internet as an educational and informational tool for children can be balanced against efforts to ensure children’s online safety.500 Commenters note the importance of recognizing that the Internet provides a positive opportunity for children, giving them educational opportunities, information, social interaction, and the ability to become creators of content.501 The recent Internet Safety Technical Task Force (“ISTTF”) Report stated that “[m]any youth in the United States have fully integrated the Internet into their daily lives. For them, the Internet is a positive and powerful space for socializing, learning, and engaging in public life.”502 Commenters also note, however, that the Internet also poses risks to children.503 As one expert has noted, “[d]ata is beginning to reveal risks to young people in terms of increased exposure to sexually inappropriate content, contributions to negative beliefs and attitudes, stranger danger, cyberbullying and access to inappropriate content from sites which may promote harmful behaviors. Moreover, there are issues relating to commercial content and contact with young people.”504 While a number of online risks exist, the Child Safe Viewing Act specifically directs the Commission to address indecent or offensive video and audio programming.505 129. Commenters urge, and we agree, that it is important to balance the benefits of being online with the risks. CDT states that “[t]he opportunities and benefits for minors of one of the primary 497 See NOI, 24 FCC Rcd at 3360, ¶ 42. 498 COPA Report at 13. 499 See, e.g., NAS Report at 11 (“Contrary to statements often made in the political debate, the issue of protecting children from inappropriate sexually explicit material and experiences on the Internet is very complex.”) 500 See NOI, 24 FCC Rcd at 3361, ¶ 43. 501 See, e.g., USTelecom Comments at 3; Verizon Comments at 9; CDT Comments at 15. See also CIPA Study, Exec. Sum. (“In homes, schools, and libraries across the nation, the Internet has become a valuable and even critical tool for our children’s success. Access to the Internet furnishes children with new resources with which to learn, new avenues for expression, and new skills to obtain quality jobs.”); Byron Review at 2, 6 (noting specifically the advantages that IT offers for individuals with disabilities); NAS Report at 1 (“The Internet provides convenient access to a highly diverse library of educational resources, enables collaborative study, and offers opportunities for remote dialog with subject-matter experts. It provides information about hobbies and sports, and it allows children to engage with other people on a near-infinite variety of topics.”). 502 Final Report of the Internet Safety Technical Task Force: Enhancing Child Safety and Online Technologies, Berkman Center for Internet & Society (2008) (“ISTTF Report”) at 4. 503 See AT&T Comments at 4-5; CIPA Study, Exec. Sum.; Byron Review at 2, 4; NAS Report at 3; What are the Risks for Children Online, GetNetWise, http://kids.getnetwise.org/safetyguide/danger/. 504 Byron Review at 4. See also ISTTF Report at 4 (noting “dangers of sexual exploitation, online harassment, and bullying, and exposure to problematic and illegal content” and noting “in most cases [risks are] not significantly different than those they face offline.”). 505 See Child Safe Viewing Act at Section 2(d). Federal Communications Commission FCC 09-69 58 ‘new media platforms’ – the Internet – far outweigh the risks.”506 Moreover, as discussed below, a growing number of technologies assist parents in minimizing the risks while introducing children to the vast benefits of the Internet. C. Previous and Current Online Safety Work 130. Several commenters encourage the Commission to be aware of the existing body of online safety reports and relevant case law.507 As AT&T, for example, states “[m]embers of the Internet community, parents groups, state and government officials and other organizations already have compiled a substantial body of work regarding the risks children face online, and the variety of parental control and online child protection tools and methods already available, as well as those on the horizon.”508 131. As noted in the NOI, the safety of children online has been a primary concern of families and Congress since the Internet was first available for public use.509 Congress has addressed this issue through numerous laws.510 Commenters urge the Commission to be sensitive to the constitutional issues previous federal laws have raised.511 There have also been several federally mandated reports:512 (i) the 506 CDT Comments at 15. See also CIPA Study, Exec. Sum.; Byron Review at 4; NAS Report at 1 (“[W]e must approach our need to protect children with care to avoid placing unnecessary restriction on the many positive features of the Internet.”). 507 See, e.g., AT&T Comments at 4-5; CDT Comments at 10. 508 AT&T Comments at 2. 509 See NOI, 24 FCC Rcd at 3357, ¶ 38. 510 See, e.g., Telecommunications Act of 1996, Sec. 501 et. seq., The Communications Decency Act, Pub. L. No. 104-104, 110 Stat. 56 (1996), codified at 47 U.S.C. § 230 (ruled unconstitutional in part in Reno v. ACLU, 521 U.S. 844 (1997)); Children’s Online Protection Act (COPA), Pub. L. No. 105-277, 112 Stat. 2681-2736 (1998), codified at 47 U.S.C. § 231 (2000) (struck down as unconstitutional on First Amendment grounds in ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008), cert. denied, (129 S. Ct. 1032 (2009)); Children’s Online Privacy Protection Act of 1998 (COPPA), Pub. L. No. 105-277, 112 Stat. 2581-728 (1998), codified at 15 U.S.C. §§ 6501-6508 (2000); Children’s Internet Protection Act (CIPA), Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000), codified at 47 U.S.C. § 254(h), 20 U.S.C. § 9134 (2000); Dot Kids Implementation and Efficiency Act of 2002, Pub. L. No. 107-317, 16 Stat. 2766, codified at 47 U.S.C. § 941 (2002); Truth in Domain Names Act of 2003, Pub. L. No. 108-21, codified at 18 U.S.C. § 2252B (2003); Providing Resources, Officers and Technology to Eradicate Cyber Threats to Our Children Act of 2008, Pub. L. No. 110-401, 121 Stat. 4229 (2008) (to be codified at 18 U.S.C. §§ 2258A-E; 42 U.S.C. §§ 17601, 17611-16) (hereinafter PROTECT Our Children Act of 2008); Child Protection and Sexual Predator Punishment Act of 1998, Pub. L. No. 105-314, 112 Stat. 2974 (1998); Reporting of Child Pornography by Electronic Communication Service Providers, Pub. L. No. 101-647, 104 Stat. 4806, codified as 42 U.S.C. § 13031 (requires IPSs, when they become aware of potential child pornography, to report this to the National Center for Missing and Exploited Children); Keeping the Internet Devoid of Sexual Predators Act of 2008 (hereinafter KIDS act of 2008), Pub. L. No. 110-400, 122 Stat. 4224 (2008), codified as 42 U.S.C.A. § 16915 (2008) (requiring sex offenders to register their online identifiers); Protecting Children in the 21st Century Act, Broadband Data Improvement Act, Pub. L. No. 110-385, Sec. II, Protecting Children in the 21st Century Act (2008); see also, Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006) (codified as amended in scattered sections of 42 U.S.C.) (mandated Internet access to state sex offender registries, facilitating public access to information); Child Pornography Prevention Act, Pub. L. No. 104-208, § 121, 110 Stat. 3009 (1996), codified as 18 USC § 2252 (1996). 511 See CDT Comments at 13-14 (stating “the constitutional limits on government regulation of online content do not change depending on whether the content previously had been broadcast over the air.”); Industry and Public Interest Groups Joint Comments at 3-4; EFF Reply at 3. Federal Communications Commission FCC 09-69 59 Final Report of the COPA Commission;513 (ii) the National Academies of Science Report;514 and (iii) the NTIA Study of Technology Protection Measures pursuant to the Children’s Internet Protect Act.515 There has also been federal law enforcement activity and educational programs. As AT&T noted, a great deal of work has also been done by non-U.S. Government entities which have examined and worked towards child online safety.516 132. Most recently, in the Broadband Data Improvement Act, Congress directed NTIA to establish the Online Safety and Technology Working Group (“OSTWG”)517 “to review and evaluate the status of industry efforts to promote online safety through educational efforts, parental control technology, blocking and filtering software, age-appropriate labels for content or other technologies or initiatives designed to promote a safe online environment for children.”518 OSTWG’s online safety mandate is broad, covering all online content and applications. The OSTWG includes 34 expert participants (many of whom have commented in this proceeding) from a diversity of corporations, organizations, and government agencies concerned with online safety.519 OSTWG has until June 4, 2010 to submit a report to Congress, which we expect will expand on many of the issues raised in this Report. D. The Availability of Video on the Internet 133. As noted in the NOI, online video and audio can be delivered in many different ways.520 Many sites stream video and audio to an audience. An individual goes to a host site and requests a (Continued from previous page) 512 In addition, PROTECT Act of 2008 requires the Department of Justice to file several reports on topics such as its strategy for protecting children, its forensic resources and capabilities, and the progress of the Internet Crimes Against Children Task Forces. See PROTECT Act of 2008, Pub. L. 110-401 (2008). 513COPA Report, Executive Summary (Congress directed the COPA Commission to “identify technological or other methods that . . . will help reduce access by minors to material that is harmful to minors on the Internet.”). 514 See NAS Report (Congress requested that the National Academies of Sciences “conduct a study of computer- based technologies and other approaches to the problem of the availability of pornographic material to children on the Internet”). 515 See Report to Congress, Children’s Internet Protection Act, Pub. L. 106-554, Study of Technology Protection Measures in Section 1703, Sec. I (2003), http://www.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/CIPAreport_08142003.htm (Congress directed NTIA “to evaluate whether currently available Internet blocking or filtering technology protection measures and Internet safety policies adequately address the needs of educational institutions”). 516 See AT&T Comments at 4-5. See, e.g., ISTTF Report; Byron Review; Making Wise Choices Online, Family Online Safety Institute (2008) (“FOSI Report”); Safer Internet for Children: Qualitative Study of 29 European Countries, Directorate General Information Society and Media, European Commission (2007); Protecting Children in the Internet Age, New York State Senate Task Force on Critical Choices (2007). 517 See NOI, 24 FCC Rcd at 3358, ¶ 38; Online Safety and Technology Working Group, National Telecommunications and Information Administration, Department of Commerce, http://www.ntia.doc.gov/advisory/onlinesafety/. 518 Broadband Data Improvement Act, Pub. L. 110-385, Sec. 214(b) (2008); See also CDT Comments at 10 (“The Commission does not have any independent authority or experience with content on the Internet, and in light of the OSTWG effort the Commission should not reach out beyond the terms of the Act to address Internet content generally.”). 519 Online Safety and Technology Working Group: Participants, National Telecommunications and Information Administration, Department of Commerce, http://www.ntia.doc.gov/advisory/onlinesafety/participants.html. 520 See NOI, 24 FCC Rcd at 3356-57, ¶ 37. Federal Communications Commission FCC 09-69 60 specific video; the host streams the video to the individual while it is being played, and the video is not otherwise stored on the individual’s computer. The host may use a proprietary application embedded in the webpage to display the video, with copyright protection built in, limiting the ability of the individual to view the video in any other way. In order to view the video, the individual generally must be online. Examples of sites using this delivery method include YouTube, Hulu, and Fox Interactive. 134. Another delivery method is for the individual to download the video or audio file onto the individual’s computer and play it on demand. The individual may search and find video or audio files and elect to download them. Alternatively, the individual might subscribe to a video or audio feed. Whenever a new video or audio file is released, it is automatically downloaded to the individual’s computer and is available to be played; this is known as podcasting and vodcasting.521 Generally, the file is stored on the individual’s computer, and the individual can play the files whenever and for as long as the individual wants. Some television sets have the ability to download shows and movies built directly into the set.522 135. An alternative means of video and audio file download distribution involves peer-to-peer (“P2P”). P2P applications allow individual computer users to transmit data directly to another user, without the use of an intermediate network service. The P2P software and services523 permit individuals to search the computers of other participants for the desired content, and individual members act as hosts, distributing content from their computers. This is a highly decentralized system of content distribution.524 136. Finally, audio and video files can be transferred across the Internet in the same way that any other data can be transferred: email, file transfers, bulletin boards, social networks, and more.525 Files can also be ripped and burned from the network and then distributed on CDs or DVDs. 521 Generally, podcasting is a series of audio recordings that can be subscribed to by individuals using RSS (“Really Simple Syndication”). Having subscribed, whenever the content creator releases a new recording, that recording will automatically be downloaded to the individual’s computer or MP3 player. Likewise, vodcasts are a series of video recordings that can be subscribed to by individuals and automatically downloaded. 522 Examples of sites where video and audio content, such as TV shows or movies, can be downloaded include iTunes, Amazon, and Audible. See, e.g., http://www.apple.com/itunes/; http://www.amazon.com/Video-On- Demand/b?ie=UTF8&node=16261631; http://www.xbox.com/en-US/live/. Services such as NetFlix and Blockbuster now allow customers to download movie rentals. http://www.netflix.com/HowItWorks#faq8; http://www.blockbuster.com/download. 523 See, e.g., BitTorrent, http://www.bittorrent.com/; Kazaa, http://www.kazaa.com/; Limewire, http://www.limewire.com/. 524 See OECD Glossary of Statistical Terms (Aug. 29, 2003), http://stats.oecd.org/glossary/detail.asp?ID=6095 ("Peer-to-peer is a communication structure in which individuals interact directly, without going through a centralized system or hierarchy."); Clay Shirky, What is P2P . . . And What Isn't, O'Reilly OpenP2P (Nov. 24, 2000), http://www.openp2p.com/pub/a/p2p/2000/11/24/shirky1-whatisp2p.html; Ed Felten, More on Berman-Coble's Peer- to-Peer Definition, Freedom to Tinker (Sept. 10, 2002), http://www.freedom-to-tinker.com/blog/felten/more- berman-cobles-peer-peer-definition; Rudiger Schollmeier, A Definition of Peer-to-Peer Networking for the Classification of Peer-to-Peer Architectures and Applications, Computer Society (2002). P2P File Sharing, iKeepSafe.org, http://www.ikeepsafe.org/PRC/topics/?action=display_article&article_id=52. 525See Simon Byers, Lorrie Cranor, Eric Cronin, Dave Kormann, and Patrick McDaniel. Analysis of Security Vulnerabilities in the Movie Production and Distribution Process, in Proceedings of the 2003 ACM Workshop on Digital Rights Management, October 27, 2003, Washington, DC. (discussing sources for and methods of content distributed online); Peter Biddle, Paul England, Marcus Peinado, and Bryan Willman, The Darknet and the Future of Content Distribution, Microsoft, http://msl1.mit.edu/ESD10/docs/darknet5.pdf. Federal Communications Commission FCC 09-69 61 137. There is a great diversity of video and audio content online from a wide variety of sources. Many sources of video and audio programs traditionally seen on television are making their content available over the Internet.526 Services such as Hulu permit individuals to watch television programs and movies that are streamed to computer screens.527 A wealth of educational video is also available online.528 138. The ease and affordability of video and audio content creation has resulted in an explosion of content creators. New digital cameras, editing software, and video hosting services allow anyone, including children, to become creators of content.529 Some cameras and editing software are affordable and high quality. Digital cameras are now ubiquitous. People are producing video and audio content prolifically; YouTube reports that 20 hours of video is uploaded to its service every minute.530 Online safety organizations praise online material that helps show parents how to teach their children how to create content with new media tools.531 139. Individuals can also create short video messages.532 Video chatting is the use of short recorded videos or real time video to engage in conversations. Many forums, including YouTube, permit participants to post video comments as well as write comments. Social networks permit the uploading of video, some of which may be more formal productions, and some of which amount to an individual simply recording a message. Other chat features allow two or more people to talk to each other in real time much like a telephone call. These opportunities raise their own set of parental concerns.533 E. Discussion 140. In the NOI, the Commission invited comment on technologies available or under development to control children’s access to Internet content, as well as any other parental empowerment tools currently available.534 We agree with those commenters who recognize that there is no one solution 526 See, e.g., http://www.cbs.com/video/; http://abc.go.com/; http://www.fox.com/; http://www.nbc.com/; http://www.pbs.org/video/; http://mlb.mlb.com/mlb/subscriptions/index.jsp. 527 Hulu is a joint effort of NBC Universal, News Corp, ABC, and Providence Equity Partners. See http://www.hulu.com/. See also http://www.veoh.com/; http://www.joost.com/. 528 See NAS Report at 9 (commenting on the importance of having “compelling, safe, and educational Internet content that is developmentally appropriate, educational, and enjoyable”). Examples of sites providing educational video include Smithsonian Kids, Discovery Education, iTunes University, Disney Educational Production. A number of educational videos can be found on hosting sites such as YouTube. 529 See ISTTF Report at 5; Top 10 Safety Tips for Video-Sharing, ConnectSafetly (Sept. 3, 2007), http://www.connectsafely.org/Safety-Tips/top-10-safety-tips-for-video-sharing.html (“Many kids today are video- literate – able to communicate in a medium once reserved for highly trained professionals with expensive equipment.”). 530 See Ryan Junee, Zoinks! 20 Hours of Video Uploaded Every Minute!, YouTube Blog (May 20, 2009), http://www.youtube.com/blog?entry=on4EmafA5MA 531 See Creating with Digital Media, http://www.commonsensemedia.org/creating-digital-media. See, e.g., A Common Sense Approach to Internet Safety, Common Sense Media, YouTube (May 29, 2008), http://www.youtube.com/watch?v=cQ1ZqiYzSTw. 532 See PFF Comments at 90 (noting chat capabilities). 533 Video Chatting, http://www.commonsensemedia.org/video-chatting 534 See NOI, 24 FCC Rcd at 3360, ¶ 41. Federal Communications Commission FCC 09-69 62 at present to address online safety concerns.535 As discussed above, there is a wide array of content, applications, sources, experiences, and risks online. Different parents have different concerns, and the same parents may have different concerns for children of different ages.536 Numerous solutions are available that address different risks. With this complexity, an effective approach requires multilayered solutions including public education and consumer empowerment technologies and methods, among others.537 141. Commenters state that there is an unprecedented abundance of parental control tools available in the market today. PFF filed in the record a comprehensive list of such parental control technologies.538 Commenters assert the competitive marketplace of parental control tools fosters innovative solutions and a diversity of choices for parents.539 142. Commenters point to the recent COPA District Court decision which found that parents have easy access to affordable540 parental control tools.541 The COPA District Court found that filters 535 See AT&T Comments at 5 (there is “growing consensus that there is no single silver bullet to keep children safe online, nor is there an “easy technological fix to shield children from harmful content or to keep them from behaving inappropriately online”); FOSI Comments at 5-6 (“The ISTTF’s report found that there is no one silver bullet to keeping kids safe online and that education is essential to protecting kids online.”); PFF Comments at 72. See also ISTTF Report at 6 (“Technology can play a helpful role, but there is no one technological solution or specific combination of technological solutions to the problem of online safety for minors.”); NAS Report at 13 (“Though some might wish otherwise, no single approach – technical, legal, economic, or educational-will be sufficient. Rather, an effective framework for protecting our children from inappropriate materials and experiences on the Internet will require a balanced composite of all of these elements, and real progress will require forward movement on all of these fronts.”). 536 See CIPA Study at Sec. IV.A. (recommending “Establish flexible policies that accommodate different ages and implement education settings with varying degrees of supervision”); NAS Report at 2. 537 See PFF Comments at 99. See also ISTTF Report at 6 (stating “a combination of technologies, in concert with parental oversight, education, social services, law enforcement, and sound policies by social network sites and service providers may assist in addressing specific problems minors face online”); Gonzales, 478 F. Supp. 2d at 794 (explaining that filtering technology has improved in part because the services “provide multiple layers of filtering”). COPA Report at 7-9 (“no single technology or method will effectively protect children from harmful material online” but “[r]ather. . . a combination of public education, consumer empowerment technologies and methods, increased enforcement of existing laws, and industry action are needed to address this concern”). 538See PFF Comments at 78-79. See also Advertisers Comments at 4; AT&T Comments at 7; Joint Comments of CDT et al at 12 (“The Internet is a major ‘parental empowerment’ success story, with effective and easy-to-use tools that offer parents a wide variety of approaches to online safety.”); Comcast Reply at 2; FOSI at 5-6; EFF Reply at 2 (“The record is abundantly clear that these technologies continue to be created, deployed, and extensively advertised”). 539 See PFF Comments at 6 (“A marketplace of controls and filters can then develop that is more closely tailored to the diverse values of the citizenry”); EFF Reply at 2; Comcast Reply at 2; AT&T Comments at 6 (mandating a single solution would “’stifle future progress in this area’ by encouraging service providers to build to the standard or rule rather than continuing to innovate and invest to meet new online threats and challenges as they appear”). See also Gonzales, 478 F. Supp. 2d at 795 (“There is a high level of competition in the field of Internet content filtering. That factor, along with the development of new technologies, has also caused the products to improve over time.”); CIPA Study, Sec. III (“NTIA also found that more companies are increasingly entering the market for Internet content protection technology” and companies are “increasing the amount of money that they put into their research and development divisions”). 540 See COPA Report, Sec. II (reviewing costs of online safety tools). Federal Communications Commission FCC 09-69 63 are “easy to install, configure, and use and require only minimal effort by the end user to configure and update.”542 While there are many different tools offering different types of solutions, these tools may be bundled together in the operating system or by the network service provider, offering parents the ability to open, click, and turn on parental control tools without having to purchase or download additional software. Parental control tools are built into several operating systems, including Windows Vista and Mac OS X. Windows 7 will also reportedly have parental control tools built in. 543 Network service providers frequently offer parental control tools bundled into the software package provided to new customers.544 They are frequently offered for free.545 Off-the-shelf tools can be purchased in stores546 and are available online for download. As several commenters note, online safety organizations, such as GetNetWise, also make online safety tools easy to find, with online searchable directories that can help parents find the specific tools that they need.547 Given this range of options, commenters assert that there is no single solution to provide Internet safety; rather, many solutions can be used together to tailor an approach appropriate for each family.548 We will discuss many of these options below, including software filters, monitors, safe applications, labels, flags, safe search, and parent and caregiver driven solutions. 143. Studies have found that Internet parental control tools on the market are effective549 and that those who use these tools are generally pleased with their performance.550 Some commenters point out that these tools are not foolproof.551 CDT and other commenters observe, however, that while these (Continued from previous page) 541 See Mukasey, 534 F.3d at 201; Gonzales, 478 F. Supp. 2d at 793; COPA Report, Sec. II.B. Filtering/Blocking. See also Industry and Public Interest Groups Joint Comments at 13-14. 542 Mukasey, 534 F.3d at 201; Gonzales, 478 F. Supp. 2d at 793. 543 See Microsoft Comments at 7; PFF Comments at 79-81; FOSI Comments at 8. See also Microsoft VISTA Parental Controls, http://www.microsoft.com/protect/products/family/vista.mspx. 544 See PFF Comments at 77; NCTA Comments at 12-13 (noting efforts of broadband Internet providers). See Gonzales, 478 F. Supp. 2d at 793 (“Because most ISPs offer filtering products, a parent does not have to do anything to obtain a filter other than to activate it through the ISP’s Web site or to call the ISP.”). 545 See Gonzales, 478 F. Supp. 2d at 793 (“AOL’s filter is now even available for free to anyone who wants to use it, even non-AOL subscribers.”). 546 See Gonzales, 478 F. Supp. 2d at 793 (“Non-ISP filtering products vary in cost, ranging from approximately $20 to $60.”). 547 See GetNetWise Tools for Families, http://kids.getnetwise.org/tools/. See CDT Comments at 5; PFF Comments at 75 (noting GetNetWise’s comprehensive list). See also Internet Filter Software Review 2009, http://internet-filter- review.toptenreviews.com/ (providing side by side comparison of top ten filtering products). Many others provide information and reviews of online safety products, including Filtering Facts, http://filteringfacts.org/filter-reviews/, PC Magazine, http://www.pcmag.com/category2/0,2806,1639158,00.asp, Monitoring Software Reviews, http://www.monitoringsoftwarereviews.org/, and Filter Review, http://www.filterreview.com/; PFF Comments at 76. 548 See FOSI Comments at 5-6, 13; AT&T Comments at 5. 549 See Gonzales, 478 F. Supp. 2d at 795-797 (“filters generally block about 95% of sexually explicit material”). 550 See CIPA Study, Exec. Sum., Sec. V (concluding “currently available technology measures have the capacity to meet most, if not all, of [educational institutions’] needs and concerns.”); Gonzales, 478 F. Supp. 2d at 794 (“A study done by AOL found that 85 percent of parents are highly satisfied with their AOL Parental Control products, and that 87 percent of parents find them easy to use. Surfcontrol has also found that customer response is positive and 70 to 80 percent of their customers renew their subscriptions to Surfcontrol’s filter.”). 551 See PFF Comments at 2; EFF Reply at 7 (noting that the content to be reviewed by filtering companies is vast, and much of the review is not done by humans but by automated reviews). Federal Communications Commission FCC 09-69 64 tools are not perfect, they have undergone significant improvements over the past ten years and parents are increasingly using them.552 There have been a number of studies, including the COPA Report and the CIPA Review,553 that examined the strengths and weaknesses of different technologies and different specific solutions. 1. Software Solutions 144. Software solutions can be downloaded, installed, and implemented by parents on their home computers and networks, and used by care givers at schools and other locations. Types of software solutions include filters; white lists; and monitors, reports and time controls. 145. Filters. The Commission asked in the NOI about filtering solutions, and many commenters discuss this technology.554 Filters act as gatekeepers, controlling the flow of content.555 Filters generally follow one of three strategies: (i) blacklist: any content on the filter’s list is blocked;556 (ii) white list: any content on the list is permitted;557 and (iii) dynamic: content is analyzed dynamically and in real time to determine whether it should be permitted.558 An April 2007 study by the Pew Internet & American Life Project found that 53 percent of parents of online teens have filtering software installed on the computer their child uses at home.559 552See Industry and Public Interest Groups Joint Comments at 13-14; FOSI Comments at 5-6. 553 See CIPA Review Sec. I.A. (“Even the most sophisticated and current technology tools are not one hundred percent effective.”) and Sec. II.A. (exploring how filtering technology both overblocks – blocks content that should be permitted – and underblocks – fails to block content that should have been blocked). 554 See NOI, 24 FCC Rcd at 3358, ¶ 39; see Industry and Public Interest Groups Joint Comments at 5; Advertisers Comments at 4; AT&T Comments at 9; Comcast Comments at 5; Cox Comments at 2; Microsoft Comments at 7; NCTA Comments at 12; USTelecom Comments at 7; Verizon Comments at 9; Google Comments at 5; CFIRS Comments at 2; PFF Comments at 7. 555 See PFF Comments at 73; Mukasey, 534 F.3d at 199; Gonzales, 478 F. Supp. 2d at 789; COPA Report, Sec. II.B. 556 See Microsoft Comments at 7; American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d at 790 (“Black lists are lists of URLs or Internet Protocol (“IP”) addresses that a filtering company has determined lead to content that contains the type of materials its filter is designed to block.”);see also COPA Report, Sec. II.B. Filtering/Blocking. 557 See PFF Comments at 82-84; American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d at 790 (“White lists are lists of URLS or IP addresses that a filtering company has determined do not lead to any content its filter is designed to block, and, thus, should never be blocked. A very restrictive filter, like a ‘walled garden’ filter, might block all URLs except those included on a white list.”). 558 See American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d at 790 (stating that “dynamic filters analyze the words on the page, the metadata, the file names for images, the URLs, the links on a page, the size of images, the formatting of the page, and other statistical pattern recognition features, such as the spatial patterns between certain words and images, which can often help filters categorize content even if the actual words are not recognized”). 559 See Pew Internet and American Life Project, Teens, Privacy and Online Social Networks, April 2007, at v, available at http://www.pewinternet.org/~/media//Files/Reports/2007/PIP_Teens_Privacy_SNS_Report_Final.pdf.pdf (“2007 Pew Study”). A March 2005 study by the Pew Internet & American Life Project found that 54 percent of parents of online teens have a filter installed on their home computer, up from 41 percent in December 2000. See Pew Internet and American Life Project, Protecting Teens Online, March 17, 2005, at 7-8, available at http://www.pewinternet.org/~/media/Files/Reports/2005/PIP_Filters_Report.pdf.pdf (“2005 Pew Study”). The questions regarding filtering were asked differently in the 2005 and 2007 studies, thus they cannot be directly compared. 2007 Pew Study at v n.1. Federal Communications Commission FCC 09-69 65 146. As noted in the NOI, the list of what is blocked (or permitted) may be generated through an automated analysis, human review, or by user options.560 Individuals can select different blocking services that may block based on different criteria, permitting parents to select a service that addresses their concerns.561 Most software products allow parents to configure the software further to block the type of content to which the parent objects. In addition, filtering software will often permit the parent to add specific sites that they desire to be blocked.562 Frequently, different accounts can be created for different children in a household, with appropriate settings for each.563 The list of blocked (or permitted) content may be updated regularly by the filtering service or by a third party service that reviews Internet content. Generally filters give parents the ability to use a password to turn off the filters when desired.564 147. We recognize that filtering technology has its limitations. There is a wide body of literature on the limitations of filters.565 The amount of content on the Internet is vast, making it difficult for humans to review each site.566 Filtering technology both overblocks (blocks access to sites that should otherwise be accessible) and underblocks content (permits access to sites that should be accessible).567 148. While online parental controls continue to improve and are able to inform parents when children attempt to tamper with or alter the settings,568 children can still circumvent them by moving to an unfiltered device, moving to another location without filters, using a proxy server, or accessing websites that create ways to bypass content filters.569 Filters are not generally restricted to one type of Internet application or one type of content, such as video or audio programming. Instead, generally, 560 See NOI, 24 FCC Rcd at 3358, ¶ 39. 561 See FOSI Comments at 6. 562 See PFF Comments at 73; AT&T Comments at 9; Comcast Comments at 5; NCTA Comments at 12-13. See alsoGonzales, 478 F. Supp. 2d at 790, 792. 563 See PFF Comments at 79-81; Microsoft Comments at 7. 564 See COPA Report, Sec. II.B; see also CSTB Report, p. 6-7; GetNetWise Tools Filtering Out Sexually Explicit Content, http://kids.getnetwise.org/tools/blocksex. 565 See PFF Comments at 2-4; see also COPA Report, Sec. II.B. Filtering/Blocking (discussing strengths and weaknesses of filtering technology); Nancy Kranich, “Why Filters Won’t Protect Children or Adults,” Library Administration and Management, Vol. 18, No. 1, Winter 2004, http://www.ala.org/ala/aboutala/offices/oif/ifissues/issuesrelatedlinks/whyfilterswontprotect.cfm; REPORT: See No Evil: How Internet Filters Affect the Search for Online Health Information, Kaiser Family Foundation (Dec. 13, 2002), http://www.kff.org/entmedia/20021210a-index.cfm; Internet Blocking in Public School, EFF (Sept. 9, 2002), http://w2.eff.org/Censorship/Censorware/net_block_report/. 566 See EFF Reply at 7; NAS Report at 6 (stating that “the volume on the Internet is so large that it is impractical for human beings to evaluate every discrete piece of information for inappropriateness”). 567 See CIPA Study, Sec. II.A & B (noting that “the technology measures also sometimes block online educational content sought by teachers.”); NAS Report at 10 (discussing limitations of technology). 568 See Gonzales, 478 F. Supp. 2d at 795. 569 See Tom A. Peter, “Internet Filters Block Porn, But Not Savvy Kids,” Christian Science Monitor, April 11, 2007, http://www.csmonitor.com/2007/0411/p13s02-lihc.htm; see also NAS Report at 11-12 (“Technology can pose barriers that are sufficient to keep those who are not strongly motivated from finding their way to inappropriate material or experiences. Further, it can help to prevent inadvertent exposure to such materials. But, as most parents and teachers noted in their comments to the committee, those who really want to have access to inappropriate sexually explicit materials will find a way to get them.”). Federal Communications Commission FCC 09-69 66 filters are designed to work on any application or content with which a child might interact, including website visits, e-mail, instant messaging, websites visited, chat rooms, and other activities.570 149. Pursuant to Section 2(b)(3) of the Act, the NOI specifically asked about advanced blocking technologies that “can filter language based upon information in closed captioning.”571 Broadcast TV closed captioning is not required for Internet video services and is generally not available. Some services offer video producers a closed captioning feature, but it is not based on the same standards as broadcast TV closed captioning.572 Because several different captioning technologies are used on the Internet, solutions based on filtering closed captioning would have to be adapted to work for different Internet content sources in order to be effective. 150. White Lists. The Commission also asked in the NOI about child safe zones that “white list” safe content and block out unwanted content. The Commission asked whether parents know about this option and find it effective.573 PFF comments that child friendly applications are available on the market that allow children to do only things that are safe or approved by parents.574 These include web browsers that permit children to access only content within a walled garden or on a white list, browsers with filtering technology built in, and messaging programs that permit children to message and e-mail only individuals added to the address book by the parent.575 Examples of such applications include Firefox’s Glubble, which, once loaded, locks the Firefox browser so that a password is required before a user can access the Internet. Parents can then establish a user account for their children that allows them access only to a set of prescreened, kid-friendly websites.576 Other video applications have been designed specifically for children, such as the Kideo Player and Totlol.com.577 151. Monitors, Reports, and Time Controls. The Commission asked in the NOI about monitoring and recording devices.578 Solutions that commenters mention include tools that can monitor a child’s activities, deny access to certain applications or pieces of hardware (e.g., a webcam), report to 570 See AT&T Comments at 9; PFF Comments at 73; Verizon Comments at 9. 571 NOI, 24 FCC Rcd at 3352, ¶ 24 (quoting Child Safe Viewing Act at Section 2(b)(3)). 572 See New Captions Feature for Videos, YouTube Blog (Aug. 28, 2009), http://www.youtube.com/blog?gl=GB&hl=en-GB&entry=7RN6iHLHX_w (enabling a feature that permits, but does not require, video producers to add captioning to their videos); Hulu – Support, http://www.hulu.com/support/content_faq (“The closed-captioning data that's used for broadcast TV isn't easily translated for online use, so we're investigating alternative solutions to boost our closed-captioning coverage.”). See also TVGuardian Frequently Asked Questions, http://tvguardian.com/gshell.php?page=FAQ&PHPSESSID=86cdfbdd52e288ad79b69695a8b82e10 (describing TVGuardian as a solution that filters based on closed captioning from TV and DVDs). 573 See NOI, 24 FCC Rcd at 3359, ¶ 41. 574 See PFF Comments at 82-84. See also Gonzales, 478 F. Supp. 2d at 790. 575 See PFF Comments at 82-84. See also Advertisers Comments at 4; Comcast Comments at 5; Microsoft Comments at 7; 9. 576 See PFF Comments at 82. 577 Kideo Player, http://www.kideoplayer.com/, describes itself as a “A fun and safe way to ‘channel surf’ YouTube.” Totlol – Video for Kids, Babies, Toddlers, Pre and School Kids, Tweens and Parents, http://www.totlol.com/, describes itself as “a video website designed specifically for children. It is community moderated. It is constantly growing. It is powered by YouTube.” 578 See NOI, 24 FCC Rcd at 3359-60, ¶ 41. Federal Communications Commission FCC 09-69 67 the parent on what the child has done online, and limit time on the computer.579 Monitors can record the specific addresses of pages visited by children; thus, in the case of a video service like YouTube, parents can know specifically what videos have been watched.580 Time control software can control how much time a child is online, and when a child is online.581 Each member of a family can have a separate account that is configured according to his or her needs.582 Microsoft notes that such features are built into Windows Vista and reports that they will be included in Windows 7.583 These features are also built into Apple OS X.584 An April 2007 study by the Pew Internet & American Life Project found that 45 percent of parents of online teens have monitoring software that records what their children do online.585 152. While these tools can be very useful to caregivers, they too have their limitations. The COPA Commission observed: Monitoring and time-limiting technologies can be effective when used in the home because they influence children’s activities and require involvement of parents. These technologies can be effective for email and other non-Web communication, and for access to global content. Monitoring and time-limiting technologies encourage greater parental involvement in the child’s online experience; however, because a parent learns of activities only after the fact, effectiveness in reducing accidental access to harmful to minors materials may be limited.586 2. Network Service Provider Solutions 153. Many commenters provide information on how network service providers help promote online safety. Many network service providers include parental control software in the materials provided to new subscribers, in addition to making this software available on their websites.587 They 579 See FOSI Comments at 5-6; AT&T Comments at 9; Comcast Comments at 5; Cox Comments at 5; Verizon Comments at 9; PFF Comments at 74. According to GetNetWise, “monitoring tools inform adults about a child's online activity without necessarily limiting access. Some of these tools simply record the addresses of Web sites that a child has visited. Others provide a warning message to a child if he/she visits an inappropriate site.” GetNetWise, Tools that Monitor Computer Activity, http://kids.getnetwise.org/tools/monitors (providing a list of available monitoring applications). See also Gonzales, 478 F. Supp. 2d at 792; NAS Report at 11; COPA Report, Sec. II.F.15 (discussing monitoring and time-limiting technologies as “Use (typically at the PC) of software that creates logs showing details of a child’s online activities and, optionally, enforces rules regarding the amount of time that may be spent online. Such systems may track both web use and email and instant messaging activities.”). 580 See PFF Comments at 73, 75; AT&T Comments at 9; Verizon Comments at 9. See also YouTube and Your Teen, http://www.commonsensemedia.org/youtube-and-your-teen. See also Marian Merritt, YouTube is Top Kid Destination; How to Enjoy it Safely, (Jun. 24, 2009), http://community.norton.com/t5/Ask-Marian/YouTube-Is-Top- Kid-Destination-How-To-Enjoy-It-Safely/ba-p/111256 (“OnlineFamily.Norton will report on the videos that children are watching or searching for.”). 581 See PFF Comments at 81; AT&T Comments at 9; Comcast Comment at 5; Microsoft Comments at 7. 582 See Microsoft Comments at 7; PFF Comments at 81; NCTA Comments at 13. 583 See Microsoft Comments at 7. 584 See Microsoft Comments at 7; PFF Comments at 81. 585 See 2007 Pew Study at v. 586 COPA Report, Sec. II.F.15. 587 See PFF Comments at 77; NCTA Comments at 12-13; USTelecom Comments at 7; FOSI Comments at 7; AT&T Comments at 9; Comcast Comments at 5; Verizon Comments at 10. See also GetNetWise How ISPs are Helping, http://kids.getnetwise.org/tools/ispoptions. See also 47 U.S.C. § 230(d) (“A provider of interactive computer service (continued….) Federal Communications Commission FCC 09-69 68 provide educational material on their websites and host educational events.588 Network service providers also support the work of online safety nonprofit organizations.589 Many of these network service providers have participated in government working groups such as NTIA’s OSTWG590 and the COPA Commission,591 as well as private sector efforts such as the Internet Safety Technical Task Force (“ISTTF”) at the Berkman Center.592 3. Content Service Provider Solutions 154. Commenters discuss content service providers’ efforts to promote online safety, which provide additional parental tools.593 Content service providers offer a series of solutions, many of which also increase the parents’ ability to make their children’s online experiences positive. 155. Acceptable Use Policies. The Commission asked in the NOI about acceptable use and “takedown” policies.594 Commenters explain that content hosting sites and services may have acceptable use policies and terms of service that indicate what content is acceptable and when unacceptable content will be taken down. 595 If content is found that violates the acceptable use policy, the service may take it down from the site and may terminate the account of the individual that posted it. Sites may actively review their content, or they may review the content when notified by a visitor that the content is problematic. 156. Labels. The NOI also asked about labeling capabilities.596 Content creators can label (Continued from previous page) shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors.”); Internet Tax Freedom Act, Sec. 1101(f)(1), codified at 47 U.S.C. § 151 nt. (Internet Tax Freedom Act “shall also not apply with respect to an Internet access provider, unless, at the time of entering into an agreement with a customer for the provision of Internet access services, such provider offers such customer (either for a fee or at no charge) screening software that is designed to permit the customer to limit access to material on the Internet that is harmful to minors.”). 588 See AT&T Comments at 9-10; NCTA Comments at 13-14; Cox Comments at 2; Comcast Comments at 8; FOSI Comments at 10-11. See also AT&T Parental Controls and Online Safety, http://www.att.com/gen/landing- pages?pid=6456; Power to Learn: a service of Cablevision, Internet Smarts, http://www.powertolearn.com/internet_smarts/index.shtml; Charter Communications, http://www.charter.com/Visitors/NonProducts.aspx?NonProductItem=65; Comcast.net Security Channel , http://security.comcast.net/; COX Take Charge Smart Choices for your Cox Digital Home, http://www.cox.com/takecharge/; Verizon Parental Control Center, http://parentalcenter.verizon.radialpoint.net 589 See USTelecom Comments at 8-9; http://www.cox.com/takecharge/; Sprint Comments at 3. 590 See USTelecom Comments at 8-9 591See COPA Commission Commissioners, http://www.copacommission.org/commission/commissioners.shtml. 592 See CDT Comments at 15; Internet Safety Technical Task Force, Members, Berkman Center, http://cyber.law.harvard.edu/research/isttf/members. 593 See, e.g., AT&T Comments at 9-10; Google Comments at 6. 594 See NOI, 24 FCC Rcd at 3360, ¶ 41. 595 See Google Comments at 4, 6. See also YouTube Community Guidelines, http://www.youtube.com/t/community_guidelines. See, e.g., Flickr Community Guidelines, http://www.flickr.com/guidelines.gne; Second Life Safety Tips for Teens and Parents, http://secondlife.com/policy/security/teensafety.php. 596 See NOI, 24 FCC Rcd at 3359, ¶ 40. Federal Communications Commission FCC 09-69 69 their content,597 providing semantic information about the content or a reference number for the content.598 This reference number can be used to look up the content in a database and determine whether it is appropriate.599 A number of hosting sites require content uploaders to identify their content.600 157. Flags and Tags. An alternative strategy that commenters discuss is to have the community that interacts with the content flag or tag the content.601 The amount of video content being uploaded to the Internet is more than any hosting service or filtering service can manually review for compliance with its acceptable use policy. By “crowdsourcing”602 the review of content to the community that interacts with the content, services can have many people looking at large amounts of content, increasing the effectiveness of the acceptable use policy.603 When problematic content is encountered, anyone viewing the content can click on the flag and identify how the content in question violates the site’s acceptable use policy. When a video receives a certain number of flags, it may come to the attention of the hosting service, which may then review the video and decide whether it comports with the guidelines and whether it should be taken down. A number of video hosting sites follow this approach.604 158. Another strategy is for the interacting community to tag content. Tagging is not directed so much at identifying objectionable content, as it is directed at simply identifying content. Individuals 597 The terms “tags,” “labels,” and “flags” are used differently by different sites, and are somewhat interchangeable. 598 See W3C Semantic Web Activity, http://www.w3.org/2001/sw/ (W3C is the standards body for the World Wide Web). 599 See, e.g., PFF Comments at 95 (The Family Online Safety Institute is developing the Internet Content Rating Association (ICRA) which “is helping to develop improved Internet filtering systems through comprehensive website labeling and metadata tagging.”); See also Website Reviews Kids Websites, http://www.commonsensemedia.org/website-reviews. The COPA Report described labeling as “[v]oluntary action by content sources to indicate that a site or particular content meets a particular standard or fits a particular category. The ‘label’ can take the form of a metatag, or entry into a database listing, or display of a seal. The use of a label may be audited.” COPA Report, Sec. II.C.6. At the time, the COPA Commission noted that “labeling” had not been widely adopted by publishers. Id. 600 See Promoting Videos: Tags definitions, YouTube, http://www.google.com/support/youtube/bin/answer.py?hl=en&answer=55769; YouTube Glossary: Category, http://www.google.com/support/youtube/bin/answer.py?hl=en&answer=94328. One method of labeling content could be through digital watermarks. Digimarc Corporation Comments at 5-6; Digimarc Corporation at 5-6. Digital watermarking is discussed above. 601 See PFF Comments at 98; Google Comments at 6. 602 See Jeff Howe, The Rise of Crowdsourcing, WIRED (June 2006), http://www.wired.com/wired/archive/14.06/crowds.html. 603 See PFF Comments at 95. 604 See Google Comments at 6; PFF Comments at 98 (noting efforts of YouTube, Flickr, and MySpace). YouTube’s efforts will be discussed in greater detail below. See, e.g., Flickr: Help: Content Filters, http://www.flickr.com/help/filters/#258; Facebook Facebook Safety, http://www.facebook.com/help/search.php?hq=report#/safety/ (“You can help Facebook by notifying us of any nudity or pornography, or harassment or unwelcome contact by clicking on the "Report" link located on pages throughout the site.”); Vimeo FAQ, How Do I Report Abuse, http://www.vimeo.com/help/faq; Google Webpage Removal Request Tool, https://www.google.com/webmasters/tools/removals?pli=1 (offering the option to identify “inappropriate webpage or image that appears in our SafeSearch filtered results.”). Federal Communications Commission FCC 09-69 70 interacting with content can tag that content as worthy of reading and identify what type of content it is.605 They can tag the content with keywords that, like labels, help to identify the content. For example, someone may tag a photo with the names of the individuals in the photo and where the photo was taken. Or one might tag a news article with keywords that identify the topics of the article. Like labels, tags can be used to help find (or avoid) the type of content for which individuals are looking.606 159. Safe Search. Several search engines provide settings that enable individuals to set the search engine to a restrictive setting that filters the responses returned. Many services such as Google, Flickr, and AOL provide safesearch features.607 According to Google, “[m]any users prefer not to have adult sites included in search results (especially if children use the computer). Google’s SafeSearch screens for sites that contain explicit sexual content and deletes them from your search results. No filter is 100 percent accurate, but SafeSearch should eliminate most inappropriate material.”608 160. Age Verification. The NOI also asked about age verification solutions.609 Age verification solutions require the user to verify his or her age, sometimes by using a credit card number or an independently issued identification.610 Commenters note that it is generally not effective as a tool in online environments where minors are likely to participate.611 161. Tools Used by Specific Online Video Services. As noted above, the diversity of sources for online video and audio is almost infinite. There are, however, certain notable large players. According to Nielsen Online,612 in April 2009 the top five online video sites as measured by streams were YouTube (58.1 percent), Hulu (3.9 percent), Yahoo! (2.2 percent), Fox Interactive (2.1 percent), and Nickelodeon (1.9 percent). YouTube stands out as one of the most popular sites on the web (all websites included),613 most popular video site, and most popular site among children.614 The second 605 See PFF Comments at 95. 606 There are many popular tagging services that inform participants in a community regarding what other members of the community have found interesting and worth reading. See, e.g., Delicious, http://delicious.com/; reddit.com: what’s new online, http://www.reddit.com/; Digg, http://digg.com/. See also Social Networks and Bookmarking, Pew Internet & American Life Project (Jan. 24, 2005), http://www.pewinternet.org/PPF/p/1035/pipcomments.asp. 607 See FOSI Comments at 8. See also Google SafeSearch, http://www.google.com/support/websearch/bin/answer.py?hl=en&answer=35892; Flickr: Help: Content Filters: What is Safesearch, http://www.flickr.com/help/filters/#249; AOL SafeSearch, http://about-search.aol.com/. 608 See http://www.google.com/support/websearch/bin/answer.py?hl=en&answer=35892. 609 See NOI, 24 FCC Rcd at 3360, ¶ 41. 610 See COPA Report at II.D. 611 See CDT Comments at 13; PFF Comments at 90. See also Mukasey, 534 F.3d at 195; Gonzales, 478 F. Supp. 2d at 800 (finding that “there is no evidence of age verification service or products available on the market to owners of Web sites that actually reliably establish or verify the age of Internet users” and “nor is there evidence of such service or products that can effectively prevent access to Web pages by a minor”); COPA Report, Sec. II.D.8. 612 See YouTube Maintains Top Rankings by Total Streams and Hulu Grows 490% Year-Over-Year, According to Nielsen Online, (May 14, 2009), http://www.nielsen-online.com/pr/090514_2.pdf. 613 See comScore Media Metrix Ranks Top 50 US Web Properties for May 2009, (Jun. 23, 2009), http://www.comscore.com/content/download/2589/27981/file/comScore%20Media%20Metrix%20Ranks%20Top% 2050%20U.S.%20Web%20Properties%20for%20May%202009.pdf 614 See Mariam Merritt, YouTube is Top Kid Destination; Hot to Enjoy it Safety, (Jun. 24, 2009), http://community.norton.com/t5/Ask-Marian/YouTube-Is-Top-Kid-Destination-How-To-Enjoy-It-Safely/ba- p/111256 Federal Communications Commission FCC 09-69 71 most popular video site has only 4 percent market share, demonstrating how profuse the offering of video sites is.615 The top audio download services include iTunes, Amazon, Napster, and others.616 The amount of online video and audio content continues to grow.617 We review below some of the solutions online video services have employed in order to promote online safety. 162. YouTube. YouTube is a video hosting site where anyone anywhere can upload short videos to his account and share them with the world.618 YouTube has enabled a number of safety features, leveraging community review and input.619 YouTube uses flags and Community Guidelines.620 Each video page has a button under the video called “flag.” To use the flags, an individual must sign into the YouTube service, click on “Flag”, and choose among six categories: (1) sexual content, (2) violent or repulsive content, (3) hateful or abusive content, (4) harmful dangerous acts, (5) spam, and (6) infringes my rights.621 In addition, YouTube has Community Guidelines that prohibit pornography or sexually explicit content, animal abuse, drug abuse, under-age drinking and smoking, bomb making, graphic or gratuitous violence, shock or gross out material, copyright violations, hate speech, predatory behavior, stalking, threats, and spam. YouTube states that content uploaders who are found to have violated the YouTube Community Standards once will be given a warning, and a strike will be placed on the account that lasts six months. If in that six months the uploader receives a second strike, the account will be temporarily disabled. If no further strikes are received during the period, the account will be restored. If a third strike is received, the account will be terminated.622 163. YouTube promises to enforce its Community Guidelines: YouTube staff review flagged videos 24 hours a day, seven days a week to determine whether they violate our Community Guidelines. When they do, we remove them. Sometimes a video 615 See Chris Anderson, The Long Tail, Wired Magazine (Oct. 2004), http://www.wired.com/wired/archive/12.10/tail.html. 616 See Eliot Van Buskirk, Zune Eats Creative’s Lunch, Grapping 4 Percent of MP3 Player Market, WIRED (May 12, 2008), http://www.wired.com/listening_post/2008/05/ipod-loses-mark/ (as of Q108 listing Apples market share of MP3 players as 71%, SanDisk 11%, Creative 2%, and Microsoft 4%); Sam Costello, Top 4 Music Download Services, About.com, http://ipod.about.com/od/downloadservicereviews/tp/top_download_services.htm. 617 See Online TV Grows in Popularity, (Sept. 4, 2008), http://www.tnsglobal.com/news/news- CA47962D13C744DD9A4BEDCAA07AF42E.aspx; Greg Sandoval, Study: Web-video viewers to top 1 billion by 2013, CNET (May 27, 2008), http://news.cnet.com/8301-10784_3-9952659- 7.html?part=rss&subj=news&tag=2547-1_3-0-20; Ben Worthen, Cisco Says Internet Video to Explode, Wall Street Journal (Jun. 9, 2009), http://blogs.wsj.com/digits/2009/06/09/cisco-says-internet-video-to-explode/. 618 See YouTube Company History, http://www.youtube.com/t/about. 619 See Safety, education, and empowerment on YouTube, The Official Google Blog (Dec. 11, 2008), http://googleblog.blogspot.com/2008/12/safety-education-and-empowerment-on.html. 620 See http://www.youtube.com/t/community_guidelines. 621 Each of those categories has several subcategories. For instance, sexual content is broken down into (a) graphic sexual activity, (b) nudity, (c) suggestive, but without nudity, and (d) other sexual content. See http://www.youtube.com/t/community_guidelines. 622 See Accounts and Policies: General Policy Enforcement Information, http://help.youtube.com/support/youtube/bin/answer.py?hl=en&answer=92486; Flagging on YouTube: The Basics, http://www.youtube.com/watch?v=ZA22WSVlCZ4/. See Marian Merritt, YouTube is Top Kid Destination; How to Enjoy it Safely, (June 24, 2009), http://community.norton.com/t5/Ask-Marian/YouTube-Is-Top-Kid-Destination- How-To-Enjoy-It-Safely/ba-p/111256. Federal Communications Commission FCC 09-69 72 doesn’t violate our Community Guidelines, but may not be appropriate for everyone. These videos may be age-restricted. Accounts are penalized for Community Guidelines violations and serious or repeated violations can lead to account termination. If your account is terminated, you won’t be allowed to create any new accounts.623 164. Each video posted to YouTube can have comments posted by the community, discussing the video. Individuals who uploaded videos to their accounts can moderate the comments posted at their videos, requiring pre-approval before any comments are posted624 or deleting offensive comments,625 block users whose comments they consider inappropriate,626 or permit only friends to post comments to their videos.627 165. Online safety organizations encourage parents to go to YouTube and become familiar with the content that their children are accessing.628 Parents can also use monitoring software, discussed above, to receive reports about which YouTube videos a child has watched. 166. Other Video Services. Other online video and audio services also include safety features. Yahoo! Video, which permits individuals to upload their own videos, follows a strategy similar to YouTube’s, with guidelines and the ability of the community to flag offensive content.629 Hulu streams TV shows and movies and offers parental controls that will block minors’ access to mature content.630 iTunes, which enables individuals to download music and shows on demand to be enjoyed on a computer, TV, or handheld device, offers a feature whereby parents can block the downloading of songs or videos with explicit language and sends a receipt to the email on the account whenever content is purchased.631 167. As commenters note, there are also a number of video and audio sites that are walled gardens, providing only family friendly content.632 Examples of child safe zones include Yahoo! Kids 623 YouTube Community Guidelines, http://www.youtube.com/t/community_guidelines. 624 See Getting Started: Comments on my videos, http://www.google.com/support/youtube/bin/answer.py?answer=58123. 625 See Learn More: Removing comments on my videos, http://www.google.com/support/youtube/bin/answer.py?answer=56112. 626 See Abusive Users: Blocking users, http://help.youtube.com/support/youtube/bin/answer.py?answer=56113. 627 See Learn More: “Friends-only” messages, http://www.google.com/support/youtube/bin/answer.py?answer=67057. 628 See Marian Merritt, YouTube is Top Kid Destination; How to Enjoy it Safely, (Jun. 24, 2009), http://community.norton.com/t5/Ask-Marian/YouTube-Is-Top-Kid-Destination-How-To-Enjoy-It-Safely/ba- p/111256; YouTube and Your Teen, http://www.commonsensemedia.org/youtube-and-your-teen. 629 See Guidelines, http://video.yahoo.com/guidelines. 630 See CDT Comments at 10. Hulu Support, http://www.hulu.com/support/account (“Parental Controls Users are required to be logged into an account and over the age of 18 in order to view mature content (films rated R, TV-MA shows) on Hulu. Unfortunately, we do not have a setting that allows for more customized parental controls at this time. The best suggestion we can offer is to log out of your Hulu account while watching with younger children; this will block mature content.”). 631 See CDT Comments at 10; PFF Comments at 45; iTunes: Using Parental Controls, http://support.apple.com/kb/HT1904. 632 See, e.g., PFF Comments at 88. See also COPA Report, Sec. II.F.14. Federal Communications Commission FCC 09-69 73 (kids.yahoo.com), PBS Kids (pbskids.org), Nickelodeon (nick.com), Cartoon Network (cartoonnetwork.com), TV Disney.com (home.disney.go.com), and .Kids.US.633 4. Parent and Care Giver Driven Solutions 168. Outside of any technical solution, the record in this proceeding suggests that there are a series of best practices that parents and all adult care givers can follow in order to promote children’s safety.634 These generally include education, acceptable use policies, and supervision. 169. Education. The NOI asked what role education should play in protecting children from objectionable content, especially given the ways in which blocking technology may be circumvented.635 Commenters,636 previous reports,637 experts, case law, and government officials agree that the key to online safety is education. Children need to be educated regarding Internet safety and media literacy. The National Academy of Sciences states that “[w]hile both technology and public policy have important roles to play, social and educational strategies to develop in minors an ethic of responsible choice and the skills to effectuate these choices and to cope with exposure are foundational to protecting children.”638 170. Education is also needed for parents, teachers, and care givers.639 As the National Academies of Sciences stated, “[a]dults must be taught to teach children how to make good choices on the Internet. They must be willing to engage in sometimes-difficult conversations.”640 Educational materials and resources are increasingly available online,641 including educational materials dealing with video and audio.642 Internet Service Providers are also aggregating and making available to their subscribers educational materials.643 633 See .Kids.US – Play, Learn, Surf, http://www.kids.us/. See also COPA Report, Sec. II.E.10 & 11. Some parties noted that .kids.us has had limited success. CDT Comments at 12. 634 See, e.g., AT&T Comments at 6, FOSI Comments at 10. 635 See NOI, 24 FCC Rcd at 3361, ¶ 43. 636 See CDT Comments at 14; FOSI Comments at 12. 637 See, e.g., COPA Report, Sec. II.A.2 (“As families are the first line of defense in raising and protecting children, education programs can be highly effective in giving caregivers needed information about online risks and protection methods, and access to technologies and ways to get help.”). 638 NAS Report at 12. See also Byron Review at 2-4; NAS Report at 9. 639 See ISSTF Report at 6; CIPA Study at Sec. IV.A (recommending parent and school staff education). 640 NAS Report at 10. 641 See NCTA Comments at 13-14; Verizon Comments at 10; Google Comments at 6. See also CIPA Study at Sec. IV.A (recommending Child Media Literacy education); COPA Report, Sec. II.A.2. See, e.g., Become a Common Sense School, http://www.commonsensemedia.org/schools. 642 See, e.g., Top 10 Safety Tips for Video-Sharing (Sept. 3, 2007), http://www.connectsafely.org/Safety-Tips/top-10- safety-tips-for-video-sharing.html (“Many kids today are video-literate – able to communicate in a medium once reserved for highly trained professionals with expensive equipment.”). 643See Verizon Comments at 10; Cox Comments at 7; NCTA Comments at 13-14. See also COPA Report, Sec. II.A.1. Online Information Resources (“Internet companies have made substantial efforts to make these online information resources available.”) The COPA Report states, “While not directly preventing access to harmful to minors materials, online information resources are essential to protecting children, as they can effectively provide access to technologies, information for families online, and hotlines to reach and report to authorities. Easily (continued….) Federal Communications Commission FCC 09-69 74 171. AT&T observes that the government has an important role in providing educational opportunities and resources.644 The FTC has operated, in partnership with several government agencies, the educational project Onguard Online.645 In 2008, the Broadband Data Improvement Act directed the FTC to engage in a public awareness campaign “to promote the safe use of the Internet by children.”646 Individual agencies also have their own separate educational programs.647 172. Internet safety courses are increasingly being taught in schools,648 and several states have online safety as a part of their required school curriculum.649 The Broadband Data Improvement Act also amended the Children’s Internet Protection Act (“CIPA”) requirements for schools receiving funding from the Commission’s universal service fund program known as the E-rate program. Section 215 of the Broadband Data Improvement Act now requires participating schools to educate “minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response.”650 173. Acceptable Use Policies. Acceptable use policies, in which expectations regarding Internet use are established in the home, can be a part of the educational experience between children and parents or caregivers. According to a study of children aged 8-18 with a computer in their home, 28 percent reported that they have rules about how much time they spend on the computer, 32 percent said there are explicit rules about what they can do on the computer, and 30 percent said their parents usually know what Web sites they access.651 These acceptable use policies can help educate children regarding the limits of safe and appropriate behavior, and when they might stray into risky areas. More formal, institutional acceptable use policies, such as the acceptable use policies drafted by educational institutions and posted near computers, serve a similar purpose. Model acceptable use policies are available online.652 (Continued from previous page) accessible online, the “one-click-away” approach is well-designed to make sure that notice of available technologies is provided at common points of entry to the Internet.” COPA Report, Sec. II.A.1. 644 See AT&T Comments at 5-6 (contending that federal, state and local governments “should allocate resources to better educate parents and children regarding the risks children face online and the tools available to protect them”). See also Byron Review at 8 (recommending “a properly funded public information and awareness campaign”). 645 See OnGuard Online, http://www.onguardonline.gov/. 646 Broadband Data Improvement Act, § 212, codified at 15 U.S.C. § 6552. 647 See, e.g., ED Technology Internet Safety, http://www.ed.gov/about/offices/list/os/technology/safety.html; Project Safe Childhood, US Dept. of Justice, http://www.projectsafechildhood.gov/; A Parent’s Guide to the Internet, http://www.fbi.gov/publications/pguide/pguidee.htm. See also FOSI Comments at 14 (“what is lacking [is] a high level of coordination and leadership” for the different agencies.); Byron Review at 8 (recommending “an authoritative ‘one stop shop’ for child internet safety” information). 648 See NCTA Comments at 13-14; see also Byron Review at 8 (noting important role of schools in equipping children to stay safe online); ISTTF Report at 6 (recommending greater resources be allocated to schools and libraries to assist them in providing education about online safety). 649 See, e.g., VA. CODE ANN. § 22.1-70.2 (Michie 2003) (acceptable Internet use policies for public and private schools); CAL. EDUC. CODE § 51871.5 (West 2008); 105 ILL. COMP. STAT. 5/27-13.3 (2009). 650 Broadband Data Improvement Act, Sec. 215, codified as 47 U.S.C. § 254(h)(5)(B)(iii). 651 See Generation M: Media in the Lives of 8-18 Year-olds at 17 and Appendix 3.4. 652 See CIPA Study Sec. IV (“Most of the commenters expressed a great deal of satisfaction with the evolution and use of safety policies…”); NAS Report at 9, 235; COPA Report, Sec. II.F.16 (“Involvement of parents and institutions in expressly establishing guidelines through an acceptable use policy or family contract can have a (continued….) Federal Communications Commission FCC 09-69 75 174. Supervision. As FOSI observed, supervision of children is crucial.653 Supervision may vary. It may initially include sitting side-by-side while teaching a child online literacy,654 placing a family computer where it can be viewed by parents, occasionally reviewing social network accounts, or using software tools to monitor online usage.655 Common Sense Media offers simple supervision recommendations. For example, if you give permission to your children to upload videos, they suggest that you ask to see the videos before they are uploaded.656 VIII. UNIVERSAL STANDARDS 175. The Child Safe Viewing Act directed the Commission to consider advanced blocking technologies that “may be appropriate across a wide variety of distribution platforms” and “may be appropriate across a wide variety of devices capable of receiving video or audio programming.”657 Today, there is no single universal rating technology or system that applies across all media sectors.658 As discussed above, however, voluntary content ratings systems currently exist within each media sector – television, movies, music, video games, and the Internet – and much of the content within each sector is rated.659 In addition, a wide variety of organizations provide independent ratings for television programming, movies, music, video games, and Internet content.660 176. Some commenters argue that imposing either a mandatory advanced blocking technology or ratings standard to apply across all media platforms would be impractical and unworkable.661 With respect to a technical standard, commenters note that wired, wireless, and Internet platforms differ widely in terms of their technical capabilities.662 They assert that a single technology designed to work across platforms would by necessity have to be reduced to a lowest common denominator in terms of (Continued from previous page) significant positive impact on awareness and behavior, although they do not themselves directly reduce access by minors to harmful to minors material.”). See also Family Contract for Online Safety, http://www.safekids.com/contract.htm; Using Family Contracts to Help Protect Your Kids Online, (Oct. 21, 2006), http://www.microsoft.com/protect/family/guidelines/contract.mspx; Internet Safety Plan, http://www.webwisekids.org/internet-safety-plan.pdf. 653 See FOSI Comment at 9. 654 See also Marian Merritt, YouTube is Top Kid Destination; How to Enjoy it Safely, (Jun. 24, 2009), http://community.norton.com/t5/Ask-Marian/YouTube-Is-Top-Kid-Destination-How-To-Enjoy-It-Safely/ba- p/111256 (discussing how to the YouTube features to improve the safety of your child’s experience). 655 See CIPA Study Sec. IV.A; NAS Report at 9. 656See YouTube and Your Teen, http://www.commonsensemedia.org/youtube-and-your-teen. 657 Child Safe Viewing Act at Section 2(b). 658 See PFF Comments at vi, 112. 659 See id. at 112. 660 See, e.g., CEA Comments at 7, 10; Common Sense Media Comments at 7; CMPC Comments at 8; Comcast Comments at 9; DISH Network Comments at 6; PFF Comments at 138-142; Smart Television Alliance Comments at 2. 661 See, e.g., CDT Comments at 14; Industry and Public Interest Groups Joint Comments at 8-12; NAB/NCTA/MPAA Comments at 21-22. 662 See Industry and Public Interest Groups Joint Comments at 8 (noting that there is a significant difference in capability between, for example, an in-home computing device and a small portable device). See also NAB/NCTA/MPAA Comments at 21 (noting that the interfaces and protocols used in various consumer electronics devices for accessing content on platforms vary and are not designed to handle a single blocking technology). Federal Communications Commission FCC 09-69 76 technical capabilities, thereby losing the greater flexibility and control currently provided by individual media platforms.663 Commenters also point out that a move to a single technology, whether voluntary or mandated, would stifle the drive to innovate within each platform, thus hindering the cause of empowering parents.664 While commenters generally oppose a mandated cross-platform technology, one commenter notes that particular companies or interest groups could pursue the development of such a technology and could create a niche market for a cross-platform solution.665 Several commenters urge the government to take steps to encourage industry and trade associations to work together to develop a universal parental control technology.666 As discussed above, digital watermarking is one possible technology that might provide a means of creating standards that work across multiple media platforms.667 177. With respect to a universal media rating system, some commenters argue that mandating such a rating system would require re-educating the public, which would be expensive and could result in consumer confusion.668 In addition, NAB, NCTA, and MPAA contend that media providers and consumer electronics companies would be required to install new filtering technology to accommodate the new rating standard, which would be expensive and would likely pose an issue with respect to legacy content and devices.669 Some commenters also assert that a universal ratings standard would destroy innovation by requiring a government-approved, “one-size-fits-all” approach that would result in less useful and effective ratings than those currently in use.670 Finally, commenters question how a universal rating system would be selected, pointing out that media ratings and content-labels are inherently subjective and inevitably reflect the perspectives and values of the person evaluating the content.671 In addition, some commenters contend that imposition of mandatory government ratings poses significant First Amendment concerns.672 178. Although industry commenters in general oppose the notion of mandating universal ratings, other commenters argue that individual groups could offer a cross-platform rating scheme.673 663 See AT&T Comments at 11; NAB/NCTA/MPAA Comments at 22; Verizon Comments at 12. 664 See Industry and Public Interest Groups Joint Comments at 9; AT&T Comments at 4; CEA Comments at 2. See also DMA Comments at 12-13 (noting that the effort to develop DRM solutions across media platforms was unsuccessful, and suggesting that parental controls developed to suit specific applications would be more likely to succeed). Some commenters argue that government adoption of the V-chip led to less innovation in content blocking for broadcast television than for other media platforms. See, e.g., Industry and Public Interest Groups Joint Comments at 9; AT&T Comments at 12. 665 See Industry and Public Interest Groups Joint Comments at 10. 666 See, e.g,. Common Sense Media Comments at 5; TiVo Comments at 6; CFIRS Comments at 7-8; DISH Network Comments at 8. 667 See, supra, section II.B.4. But see CEA Comments at 10-11 (expressing concern that digital watermarking could also be used for DRM functionality and that intellectual property licensing terms for this technology are unknown). See also TiVo Reply at 3. 668 See, e.g., NAB/NCTA/MPAA Comments at 20. See also ALEC Comments at 7. 669 See NAB/NCTA/MPAA Comments at 20. 670 See PFF Comments at vi. See also ESA Comments at 7-8. 671 See NAB/NCTA/MPAA Comments at 19. See also Industry and Public Interest Groups Joint Comments at 11. 672 See PFF Comments at 114-117; Industry and Public Interest Groups Joint Comments at 12. 673 See Industry and Public Interest Groups Joint Comments at 12. See also CFIRS Comments at 7. Federal Communications Commission FCC 09-69 77 CFIRS advocates the creation of such a group to create and maintain common standards for rating, filtering, and blocking content across multiple platforms.674 According to CFIRS, many industries have standards bodies that create and maintain agreed-upon standards, and such a body could create a common standard for media that would allow consumers to move more easily from one system to the next and make comparisons.675 CFIRS urges the Commission to state the need for an industry ratings standard and convene a ratings oversight group to work on its development.676 Common Sense Media also asks the Commission to consider forming a task force to consider the information received in this proceeding, the potential interoperability of technology and filtering across media, and the incentives that might need to be put into place to facilitate interoperability and to address other issues with respect to parental controls.677 IX. ENCOURAGING THE DEVELOPMENT AND USE OF PARENTAL CONTROLS 179. Except for those commenters that call for specific action with respect to their own particular technologies,678 commenters generally oppose the imposition of any specific new government mandate in the area of parental controls on the ground that mandates would chill innovation and investment in new control technology.679 Instead, many commenters that consider the question of how to encourage the development, deployment, and use of parental controls agree that, in order to accelerate the rate of adoption of parental control technologies, the government and industry must undertake efforts to promote and educate consumers regarding these technologies.680 180. A number of commenters suggest that the government could play a role in expanding awareness of the need for and availability of parental control technology and in encouraging industry to cooperate to further improve parental control solutions.681 Some commenters ask the Commission to engage in a public service campaign to educate parents about the availability of parental control tools.682 Common Sense Media urges the Commission to focus on the need for greater media literacy in schools and to support the funding of media literacy programs through the Department of Education and other 674 See CFIRS Comments at 7. See also ALEC Reply at 7. 675 See CFIRS Comments at 7. 676 See id. at 8. CFIRS also recommends that the group coordinate a comprehensive list of ratings services across all platforms, analysis of the accuracy of ratings, and usage rates for ratings. See id. at 7. 677 See Common Sense Media Comments at 5. 678 See, e.g., TVGuardian Reply at 12 (urging the government to require that cable, satellite and IPTV providers permit consumers to have access to its filtering technology); Digimarc Reply at 1 (suggesting that, as an alternative to the V-Chip, the Commission consider recommending to Congress the deployment of alternative technologies, such as digital watermarking). 679 See, e.g., NAB/NCTA/MPAA Comments at 18; Industry and Public Interest Groups Joint Comments at 8-9; CEA Reply at 14-15. 680 See, e.g., Smart Television Alliance Comments at 7; TV Watch Comments at 1; Verizon Comments at 12; Advertisers Replyat 5. The Electronic Frontier Foundation was the only commenter to expressly oppose government action to “encourage or support” parental control technologies. See EFF Reply at 1. 681 See, e.g., AT&T Comments at 3-4; Verizon Comments at 12; CMPC Reply at 3. 682 See, e.g., FOSI Comments at 13. See also TiVo Comments at 5 (suggesting that the government, industry, and trade associations partner on an outreach campaign similar to that created for the DTV transition). The National Hispanic Media Coalition notes that the Spanish-speaking community in particular may not understand the TV Parental Guidelines, indicating that education may be particularly necessary to reach this community. See National Hispanic Media Coalition Comments at 1. Federal Communications Commission FCC 09-69 78 agencies.683 Commenters also encourage the government to provide research grants684 and create comprehensive websites with information about advanced blocking technologies.685 As noted above, both the CFIRS and Common Sense Media suggest that the Commission establish a working group or task force to consider issues raised in this proceeding.686 NAB, NCTA, and MPAA also support the idea of a parental control task force.687 DISH Network proposes that the Commission identify industry “best practices” with respect to the creation and deployment of blocking technologies as well as the promotion of these tools.688 181. As noted above, industry commenters provide information about their efforts to inform the public about parental controls and rating systems, including public service campaigns, website links, and customer hotlines. Some commenters propose that industry take other specific steps such as including easy-to-understand instructions in all user manuals explaining how to set up parental controls and what the ratings mean.689 In addition, some commenters suggest that embedded controls could have pre-established default settings before they are shipped or downloaded.690 The Electronic Frontier Foundation (“EFF”), however, argues that such default settings would require the many users that are not interested in parental controls to opt-out and would cause significant consumer confusion.691 Others point out that industry will respond if there is significant demand for kid-friendly products and that cable and satellite providers are already differentiating their product offerings on the basis of the parental control options they provide.692 182. One commenter argues that the Commission should approach consumer education about parental control technology in a manner similar to its recent effort to educate consumers about the nation’s DTV transition. As suggested by TiVo, government, industry, and trade associations could partner on an outreach campaign similar to that created for the DTV transition to highlight the V-chip and other advanced blocking technologies.693 183. Both NTIA and the Commission played important roles in facilitating the DTV transition. NTIA focused initially on establishing the technical requirements for the “coupon-eligible” digital-to-analog converter boxes, which allow older televisions to be used to view digital broadcast signals. NTIA also handled public awareness and distribution of the converter box coupons. The Commission’s primary role in the transition was to spearhead and coordinate a nationwide DTV Consumer Education Initiative. The initiative included industry efforts, some of which were required by 683 See Common Sense Media Comments at 10. 684 See, e.g., Industry and Public Interest Groups Joint Comments at 4; FOSI Comments at 13. 685 See TiVo Comments at 5. 686 See CFIRS Comments at 7-8; Common Sense Media Comments at 5. FOSI also proposes that the Commission work to bring groups together to work on parental control issues. See FOSI Comments at 13. 687 See NAB/NCTA/MPAA Reply at 16. 688 See DISH Network Comments at 8 (citing Remarks of Commissioner Jonathan S. Adelstein, Stuck in the Mud: Time to Move an Agenda to Protect America’s Children (Media Institute Speech), June 11, 2008, at 20). 689 See PFF Comments at 102. See also CFIRS Comments at 5. 690 See CFIRS Comments at 5; Wi-LAN Comments at 5. 691 See, e.g., EFF Reply at 7. 692 See, e.g., DISH Network Comments at 8; Motorola Reply at 3. 693 See TiVo Comments at 5. Federal Communications Commission FCC 09-69 79 regulation,694 and direct outreach by the Commission, which increased in scope and intensity as additional funding from Congress was directed towards the effort.695 Industry participants included television manufacturers and MVPDs, among others. Television broadcasters were particularly active partners. The Commission required broadcasters to air PSAs and educational programs about the transition,696 and broadcaster organizations like the NAB and the Association of Public Television Stations prepared PSAs and programs that were made available to, and aired by, broadcasters nationwide.697 184. The Commission’s direct consumer education efforts were underway for many years prior to the transition,698 but they intensified in the year prior to the transition. In early 2008, for example, the Commission hosted workshops targeted at groups most at risk of losing service due to the transition,699 and contracted with a media services company to produce billboards, literature, and radio and television PSAs to reach citizens directly.700 The Commissioners and Commission staff worked on the ground with stakeholders and consumers, in several dozen television market areas most likely to be affected by the transition.701 In early 2009, after the transition date was extended, the Commission not only continued its ongoing direct outreach efforts, but was provided with significant funding by Congress to expand those efforts and fund scores of targeted contracts that created walk-in DTV help centers and provided in-home installation focused in at-risk markets, while expanding the Commission call center to serve citizens nationwide 185. In the fast-moving period prior to the transition, the Commission worked closely with regulatees, both at the national policy level and within local communities, to maintain flexibility while still ensuring that citizens had access to the information they needed. For their part, many regulatees went beyond the obligations imposed by our rules to ensure that consumers were fully educated – this 694 See generally DTV Consumer Education Initiative, MB Docket No. 07-148 (“consumer education docket”). 695 See, e.g., FCC Announces Digital Television Consumer Education Workshop on September 26, 2007, Press Release (July 16, 2007); FCC Expands National Digital Television Education And Awareness Campaign, Targets Outreach In Wilmington, NC, Press Release (June 4, 2008); FCC Announces Extensive Nationwide Initiative For DTV Outreach, Press Release (August 18, 2008); FCC Creates Television Public Service Announcements And Educational Video To Help Prepare For Transition To Digital, Press Release (September 17, 2008); FCC Announces $12 Million Call Center Contract To Assist DTV Call Center Capability, Press Release (January 16, 2009); FCC Releases Solicitations For DTV Transition Assistance As Part Of A Comprehensive Consumer Outreach And Support Effort, Public Notice, DA 09-689 (March 26, 2009); 30 Days And Counting To DTV Transition: FCC Concentrates On Preparing Consumers For June 12 Deadline, Press Release (May 13, 2009); 8 Days And Counting To DTV Transition: Free In-Home Installation Available For Consumers In Many Markets, Press Release (June 4, 2009); FCC Continues DTV Outreach Across The Nation: Call Center Receives Over 900,000 Calls In Days Surrounding Transition, Press Release (June 15, 2009). 696 47 C.F.R. § 73.674. 697 See generally Implementation of the DTV Delay Act, MB Docket No. 09-17, Third Report And Order And Order On Reconsideration, 24 FCC Rcd 3399 (2009). 698 See, e.g., Chairman Powell To Kickoff Consumer Education Initiative On Transition To Digital Television, Press Release (September 28, 2004). 699 FCC Releases Agenda for April 1, 2008, Digital Television Consumer Education Workshop Focusing on Low- Income Consumers, Press Release (March 20, 2008). 700 RFQ08000005 – FCC Digital Television (DTV) Consumer Education Support Services, awarded to Ketchum, Incorporated on 02/13/2008. 701 FCC Announces Extensive Nationwide Initiative For DTV Outreach, Press Release (August 18, 2008). Federal Communications Commission FCC 09-69 80 was particularly true for broadcasters, whose customers were of course most directly affected by the change. Finally, Congress committed tens of millions of dollars, over and above the Commission’s normal budget, in order to ensure that sufficient staffing and oversight resources were available for effective DTV consumer education. Without this additional funding, the Commission’s efforts would have continued to be effective, but clearly could not have been nearly as extensive, particularly in regard to contractors.702 186. The Commission could take a similar approach to raising consumer awareness of the availability of parental controls and how to use them. Presumably this would be on a smaller scale, as the DTV transition was a singular event that required extraordinary funding and commitment of resources, by both the government and the private sector. We intend to explore in a forthcoming NOI whether and, if so, what efforts would promote and educate consumers regarding parental control technologies and thereby accelerate the pace of adoption of these technologies. X. CRITERIA FOR PARENTAL CONTROL TECHNOLOGIES 187. The record demonstrates that parental control technologies vary greatly among media platforms, and even among different providers within the same media platform, with respect to various criteria. Below, we discuss these various criteria and, to the extent available in the existing record, provide examples of how different parental control technologies compare with respect to each criteria. Going forward, we believe these criteria will be useful in comparing and contrasting the usefulness and effectiveness of parental control technologies across various media platforms. As discussed below, these criteria are as follows: (i) cost to consumers; (ii) level of consumer awareness/promotional and educational efforts; (iii) adoption rate; (iv) customer support; (v) ease of use; (vi) means to prevent children from overriding parental controls; (vii) blocking content/black listing; (viii) selecting content/white listing; (ix) access to multiple ratings systems; (x) parental understanding of ratings systems; (xi) reliance on non-ratings-based system; (xii) ability to monitor usage and view usage history; (xiii) ability to restrict access and usage; (xiv) access to parental controls outside of the home; and (xv) tracking. 188. Cost to Consumers. The cost of a parental control technology is an important consideration for parents. The record indicates that many parental control technologies are included in the price of a service or device with no additional cost apparent to the consumer. For example, most televisions come equipped with a V-chip.703 Most MVPDs offer some form of parental control included with the price of the service, although the most advanced features require parents to purchase or lease a digital set-top box. 704 Many wireless parental control technologies are included within the cost of the wireless service. 705 For Internet usage, parental control technologies are often built into operating systems or included within the price of Internet access.706 Other parental control technologies, however, 702 According to Nielsen, in September 2008, 8.4 percent of American households remained completely unready for the transition, with neither an over-the-air digital tuner or access to digital broadcast signals through an MVPD. By February 15, 2009, two days before the original date of the transition, that number still stood at 4.4 percent. Within a month of the final completion of the transition, due in large part to ongoing Commission education efforts, the number had dropped to close to 1 percent. See 200,000 American Homes Have Upgraded To Digital Since June 28, Nielsen Media Alert (July 16, 2009). 703 See supra note 20. 704 See id. ¶ 59. 705 See id. ¶ 99. 706 See id. ¶ 142. Federal Communications Commission FCC 09-69 81 may require parents to pay recurring fees. For example, a ClearPlay DVD player, which blocks profanity, violence, and nudity from movies, requires a monthly membership fee of $7.95 in order to receive filtering codes for movies beyond the 1,000 movies provided with the device.707 Some content filtering applications provided by third-parties for wireless devices and Internet usage require users to pay a one-time or recurring fee.708 189. Level of Consumer Awareness/Promotional and Educational Efforts. Efforts to promote and to educate the public about a particular parental control technology may lead to an increase in awareness and adoption of the technology. The record reflects that industry has undertaken various measures to promote and to educate the public about their parental control technologies, including advertising campaigns, PSAs, websites, customer hotlines, and written materials.709 As discussed above, further study is needed to assess whether and, if so, what additional efforts to promote and to educate consumers regarding parental control technologies would accelerate the rate of awareness and adoption of these technologies.710 With the exception of three technologies, the record does not indicate the level of consumer awareness for the various parental control technologies discussed. With respect to the V- chip, studies have found that the percentage of parents that are aware of the V-chip varies from less than half to 69 percent.711 With respect to MVPD parental control technologies, studies have found that the percentage of parents that are aware of these technologies varies from 45 percent to 90 percent.712 Among recent purchasers of TiVo DVRs in households with children 13 years of age and younger, 29 percent were aware of KidZone parental control technology prior to purchase.713 190. Adoption rate. The extent to which a particular parental control technology has been adopted by parents may provide an indication of how well that product has been promoted, how well parents have been educated about the product, and how useful and effective that technology is for parents. With the exception of three technologies, the record does not indicate the adoption rate for the various parental control technologies discussed. With respect to the three technologies for which we have data, the adoption rates appear low. Specifically, with respect to the V-chip, studies have found that the percentage of parents that use the V-chip varies from 5 percent to 16 percent.714 With respect to MVPD parental control technologies, one study found that 17 percent of families studied used cable parental controls and 12 percent used satellite parental controls.715 With respect to TiVo’s KidZone, the usage rate among parents has never exceeded 15 percent to 16 percent.716 191. Customer Support. Once a parent starts using a particular control technology, effective customer support in addressing questions from parents may increase understanding and usage of the 707 See id. ¶ 120. 708 See id. ¶ 100. 709 See id. ¶¶ 53-54, 61. 710 See id. section IV. 711 See id. ¶ 16. 712 See id. ¶ 57. 713 See id. ¶ 73. 714 See id. ¶ 17. 715 See id. ¶ 57. 716 See id. ¶ 72. Federal Communications Commission FCC 09-69 82 technology. The record contains some information regarding the extent to which providers of various parental control technologies described herein offer continuing customer support for parents using their technologies.717 Providing information on websites and use of hotlines are two methods providers use to provide customer support. 192. Ease of use. The extent to which a parental control technology is easy for parents to understand and use will increase its adoption rate among parents. While various providers claim their parental control technologies are easy to use,718 the record does not contain data demonstrating that parents agree with these claims. With respect to the V-chip, the record indicates that many parents find programming the V-chip to be a confusing process and prefer parental control technologies provided by MVPDs.719 193. Means to Prevent Children from Overriding Parental Controls. Most parental control technologies use password protection to prevent children from overriding the settings established by the parent.720 With respect to Internet parental control technologies in particular, however, the record reflects that children have various means to override these controls.721 194. Blocking Content/Black Listing. Most parental control technologies provide parents with the ability to “black list,” or block certain content from viewing by children.722 Technologies differ, however, in their ability to target specific content for blocking. 195. The V-chip, for example, is limited to blocking entire programs based on the TV Parental Guidelines and MPAA ratings.723 Most MVPD set-top boxes are more flexible than the V-chip, providing parents with the ability to not only block entire programs based on TV Parental Guidelines and MPAA ratings, but to also block entire channels, entire services (such as VOD), and channels at specified times of day.724 They also have the ability to block adult-oriented titles from appearing in 717 See, e.g., Comments of Comcast at 5-6 (provides information to customers about parental controls in customer welcome kit, provides a telephone hotline and maintains a website to assist customers with parental control tools, and provides an instructional video available on Comcast’s VOD service and on Comcast cable systems’ instructional channels); Cox at Appendix B, page iv (provides information to customers about parental controls in a welcome kit and maintains a website with information about parental controls); DIRECTV at 3-4 (runs an instructional video continuously on one of its channels providing information about the DIRECTV system including the “Locks and Limits” parental controls and maintains a website). See also Supplemental NCTA Comments at 6-7. Wireless carriers also noted that they maintain websites and customer care lines where customers can obtain information about parental controls. See, e.g., Sprint Comments at 2-3; Verizon Comments at 7-8; AT&T Comments at 6. 718 See supra ¶¶ 101, 142. 719 See id. ¶ 19. 720 See id. ¶ 59 (password protection for MVPD parental control technologies); id. ¶ 71 (password protection for TiVo’s KidZone); id. ¶ 146 (password protection for Internet parental control technologies). 721 See id. ¶ 148 (discussing ways to circumvent Internet filters). 722 See id. ¶ 11 (V-chip), ¶ 59 (MVPDs), ¶ 70 (TiVo KidZone), ¶ 74 (TVGuardian), ¶ 79 (CC+), ¶ 87 (video games), ¶ 98 (wireless); ¶¶ 145-149 (Internet). 723 See id. ¶¶ 12-13. The record indicates that some parents would like the flexibility to use the V-chip to block inappropriate commercials as well as programming content based on additional descriptors, such as alcohol, tobacco, and illegal drugs. See id. ¶¶ 30, 32. 724 See id. ¶ 59. Federal Communications Commission FCC 09-69 83 programming guides and to designate channels to be skipped when channel surfing.725 Some devices, such as TVGuardian and CC+, appear to provide even more flexibility. Rather than blocking entire programs or channels, these devices filter specific content within programs, such as foul language or nudity, thereby enabling families to view a program without the objectionable content.726 196. Wireless and Internet parental control technologies provide even greater ability to selectively target content for blocking. With respect to wireless service, both carriers and third-party application developers offer parents the ability to block all Internet access on a device or only specific sites and content based on certain criteria.727 T-Mobile, for example, blocks adult-oriented content, such as content featuring alcohol, drugs, gambling, pornography, mature content, violence, and weapons.728 With respect to the Internet, a wide array of filtering software and web browsers are available that permit parents to block certain content based on criteria specified by the parent.729 Many of these Internet technologies also allow parents to set different blocking criteria for different children in the household.730 197. Selecting Content/White Listing. Some of the parental control technologies discussed have the ability to “white list,” or allow parents to affirmatively select the programming that can be viewed by their children. For example, TiVo’s KidZone provides parents with the ability to white list, including selection of programs identified by broadcasters as E/I.731 Motorola states that its forthcoming TVFirewall server technology for MVPDs will allow for white listing of content selected by parents.732 Some wireless providers also offer parents the ability to restrict their children’s wireless Internet usage to only certain sites.733 For example, Sprint permits parents to restrict Internet access to designated websites deemed appropriate for children 17 and under.734 With respect to the Internet, filtering software and web browsers, such as Firefox’s Glubble, allow children to access only sites approved by their parents.735 We note above that further study is needed on the issue of using the V-chip as an affirmative tool to select E/I programming for children.736 198. Access to Multiple Ratings Systems. Some of the parental control technologies discussed enable parents to access multiple independent rating systems for blocking or selecting programming. For example, TiVo’s KidZone permits parents to block, select, and/or record programming based on a list programs recommended by PTC, KIDS FIRST!, and Common Sense Media.737 In addition, a 725 See id. 726 See id. ¶¶ 74-80. 727 See id. ¶¶ 98-100. 728 See id. ¶ 99. 729 See id. ¶¶ 145-149. 730 See id. ¶ 146. 731 See id. ¶ 71. 732 See id. ¶ 65. 733 See id. ¶ 99. 734 See id. 735 See id. ¶ 150. 736 See id. ¶¶ 36-38. 737 See id. ¶ 69. Federal Communications Commission FCC 09-69 84 number of MVPDs provide their subscribers with web-based access to ratings and reviews established by Common Sense Media.738 DIRECTV anticipates that in the future its subscribers will be able to access the Common Sense Media reviews and ratings directly through a programming guide on their TV screen rather than on the Internet.739 The record also reflects that it is technically possible to allow parents to access multiple independent ratings systems through the V-chip, but this option is not currently available.740 199. Parental Understanding of Ratings Systems. For parental control technologies that rely on common ratings to block content, the extent to which parents are familiar with the ratings system used by a parental control technology will greatly increase its usefulness among parents. With the exception of the TV Parental Guidelines, the record does not contain data demonstrating whether parents are familiar with the ratings systems developed for other media platforms. With respect to the TV Parental Guidelines, the record indicates that most parents have heard of the ratings but many do not understand what they mean.741 To increase awareness, some MVPD set-top boxes allow parents to review descriptions of ratings and content labels on their television screens.742 200. Reliance on a Non-Ratings-Based System. Given conflicting studies on the usefulness of the TV Parental Guidelines,743 a parental control technology that blocks or selects programming without the use of ratings may be attractive to parents.744 201. Ability to Monitor Usage and View Usage History. Some of the parental control technologies discussed allow parents to monitor and view the history of their children’s media usage. For example, some wireless applications, such as the “iWonder” browser for use on Apple’s iPhone, allow parents to view remotely from their own computer or wireless device the websites that the child visits.745 Other wireless applications send parents an alert when a child receives calls and messages from unauthorized sources and allow parents to view and archive remotely all of the text, e-mail, and instant messages that their child sends and receives.746 Similarly, various Internet applications allow parents to view a list of sites visited by children.747 202. Ability to Restrict Access and Usage. Some of the parental control technologies discussed enable parents to restrict access to and usage of particular media. For example, television time management tools, as well as Motorola’s forthcoming TVFirewall technology, allow parents to specify 738 See id. ¶ 60. 739 See id. ¶ 63. 740 See id. ¶¶ 39-46. 741 See id. ¶ 25. 742 See id. ¶ 60. 743 See id. ¶ 25. 744 As discussed above, Section 330(c)(4) of the Communications Act provides that the Commission shall amend its V-chip rules if it determines that an alternative blocking technology exists that “enables parents to block programming based on identifying programs without ratings” and satisfies certain other specified criteria. See 47 U.S.C. § 330(c)(4). See also supra note 17. 745 See id. ¶ 104. 746 See id. 747 See id. ¶ 151. Federal Communications Commission FCC 09-69 85 the aggregate number of hours or the times of day when their children are permitted to watch television.748 Similarly, wireless applications allow parents to restrict usage of wireless devices to certain times of day, blocks calls or messages to and from certain phone numbers, and limit the number of text and instant messages a child sends and receives.749 Various Internet applications also allow parents to limit the number of hours or the times of day when their children are permitted to be online and to specify the individuals to which a child can send emails or messages.750 203. Access to Parental Controls Outside of the Home. Some of the parental control technologies discussed enable parents to set parental control settings from outside of the home, using a web-based interface. For example, Motorola’s forthcoming TVFirewall technology will be accessible to parents from any device that can access the Internet, including web-enabled mobile devices.751 Some wireless applications, such as Sprint’s Parental Controls web site, allow parents to specify online the websites a child’s wireless device is permitted to access and to set other usage restrictions.752 204. Tracking. While not possible for fixed technologies, some wireless devices offer parties the ability to locate their children and monitor their whereabouts using GPS technology.753 XI. NEED FOR ADDITIONAL DATA REGARDING PARENTAL CONTROL TECHNOLOGIES 205. The record developed in response to the NOI provides a general indication of the parental control technologies that are available to parents today. With respect to many of the parental control technologies discussed in this Report, however, the record is lacking data in five key areas: (i) level of consumer awareness; (ii) pace of adoption; (iii) ease of use; (iv) familiarity with ratings systems; and (v) pace of innovation. For example, for many technologies, the record does not have data explaining the extent to which parents are aware of and are using the parental control technology. To the extent that awareness and usage rates are low, as is the case with the V-chip, the record does not have sufficient data to fully understand the reasons underlying this phenomenon. Moreover, while the record provides a sense of what technologies exist today, the record does not have data to determine whether the pace of innovation in parental control technologies is proceeding at a level that ensures that new parental control features and devices are being developed at a rate responsive to evolving parental and caregiver needs. We discuss below the areas where additional data, surveys, and studies are needed. We intend to explore these and other issues in a forthcoming NOI. The list below is illustrative and is not meant to serve as a definitive list of items to be addressed by the NOI. 206. Level of Consumer Awareness. Further study is needed to determine (i) the extent to which parents are aware of specific parental control technologies; (ii) to what extent does the level of awareness differ among media; and (iii) whether and, if so, what additional promotional and educational efforts would be effective in increasing awareness of these parental control technologies. 207. Pace of Adoption. Further study is needed to better understand (i) the extent to which parents are using specific parental control technologies; (ii) to the extent that the usage rate is low, what 748 See id. ¶ 64. 749 See id. ¶¶ 104-105. 750 See id. ¶¶ 150-151. 751 See id. ¶ 64. 752 See id. ¶ 99. 753 See id. ¶ 110. Federal Communications Commission FCC 09-69 86 reasons, if any, besides lack of awareness keep parents from using parental control technologies, and to what extent do these reasons differ among media;754 and (iii) whether and, if so, what actions could be taken to increase use of these parental control technologies. Moreover, it appears that there may be greater adoption of technologies on the Internet than broadcasting and other traditional media sources.755 Further study is needed to determine the reasons for these different adoption rates among media. 208. Ease of Use. Further study is needed to determine (i) what, if any, features of specific parental control technologies parents find confusing and difficult to use; and (ii) if such features exist, whether and, if so, how these technologies could be improved to make them easier for parents to use. 209. Parental Understanding of Ratings Systems/Content Evaluation Methodology. Further study is needed to determine (i) whether parents understand the various ratings systems currently in use and the way content is evaluated for blocking and other purposes in conjunction with specific parental control technologies; (ii) if the level of understanding is low, whether that lack of understanding is impeding use of particular parental control technologies; and (iii) whether and, if so, what steps can be taken to increase understanding. 210. Pace of Innovation. Parental control technologies vary greatly among media platforms, and even among different providers within the same media platform, with respect to the criteria identified in Section X. Further study is needed to determine the pace of innovation in parental control technologies, whether it is proceeding at a pace consistent with other consumer technologies (e.g., computers, mobile phones and broadband devices), and whether evolving needs of parents, caregivers, and children are being satisfied in a timely manner. 211. With respect to gathering additional data concerning online safety, we are mindful that research and literature in this area are extensive. As noted above, there have been multiple federal studies, private sector studies, and litigation that comprehensively explored online safety. Continued reexamination of online safety is necessary to ensure the protection of children. As noted above, in order to explore these issues further and to gather the latest data and expertise, Congress in the Broadband Data Improvement Act directed the Assistant Secretary of Commerce for Communications and Information to establish the Online Safety and Technology Working Group (“OSTWG”).756 That group, which consists of representatives from the business community, public interest groups, and other groups and Federal agencies, is charged with reviewing and evaluating the following issues: (1) the status of industry efforts to promote online safety through educational efforts, parental control technology, blocking and filtering software, age-appropriate labels for content or other technologies or initiatives designed to promote a safe online environment for children; (2) the status of industry efforts to promote online safety among providers of electronic communications services and remote computing services by reporting apparent child pornography under section 13032 of title 42, United States Code, including any obstacles to such reporting; 754 For example, with respect to the V-chip, the record indicates that a lack of understanding of the ratings system and difficulty in using the V-chip are two factors limiting parental adoption of the V-chip. See supra ¶¶ 19, 25, 27. Data regarding other technologies is lacking. 755 For example, estimates of V-chip usage vary from 5 percent to 16 percent of parents and one study concludes that only 17 percent of parents use cable parental controls, whereas another study finds that half of parents have filtering or monitoring software installed on computers used by teens. See supra ¶¶ 17, 57, 145, 151. Data regarding other technologies is lacking. 756 See Broadband Data Improvement Act, Pub. L. 110-385, Sec. 214 (2008). Federal Communications Commission FCC 09-69 87 (3) the practices of electronic communications service providers and remote computing service providers related to record retention in connection with crimes against children; and (4) the development of technologies to help parents shield their children from inappropriate material on the Internet.”757 212. The OSTWG held its first meeting on June 4, 2009 and must report its findings and recommendations to the Assistant Secretary and to Congress within one year of that first meeting (i.e., by June 4, 2010). The Commission is participating in the OSTWG and recognizes the important work the OSTWG is engaged in to improve the data and information available for policy makers. The Commission will consider how to best engage the work of the OSTWG in order to ensure that the policy process is well informed on these important issues. XII. CONCLUSION 213. The record in this proceeding demonstrates that a market exists for advanced blocking technologies and other parental empowerment tools, although data is lacking in certain key areas, such as awareness and usage levels, which warrant further study. Educational programs to increase awareness of parental control technologies have the potential to accelerate the rate of development, deployment, and adoption of these technologies. Parental control technologies vary greatly among media platforms, and even among different providers within the same media platform, with respect to various criteria. While there are technologies in existence for each media platform, there is not currently a universal parental control technology that works across media platforms. To explore these issues and how to maximize benefits and minimize harms to children in this rapidly changing environment, the Commission intends to issue a further Notice of Inquiry exploring these issues and others relating to protecting children and empowering parents in the digital age. XIII. ORDERING CLAUSES 214. Accordingly, IT IS ORDERED that, pursuant to the authority contained in sections 4(i), 303(g), 303(r) and 403 of the Communications Act, 47 U.S.C. §§ 154(i), 303, and 403, and pursuant to the Child Safe Viewing Act of 2007, this Report IS ADOPTED. 215. It is FURTHER ORDERED that the Office of Legislative Affairs shall deliver copies of this Report to the appropriate committees and subcommittees of the United States House of Representatives and the United States Senate. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 757 Id. See also Online Safety and Technology Working Group, National Telecommunications and Information Administration, Department of Commerce, http://www.ntia.doc.gov/advisory/onlinesafety/. Federal Communications Commission FCC 09-69 88 APPENDIX A Commenters Filing in MB Docket No. 09-268* Adam Thierer, The Progress & Freedom Foundation Association of National Advertisers, Inc. AT&T, Inc. Caption TV Inc. Center for Democracy and Technology Children’s Media Policy Coalition Coalition for Independent Ratings Comcast Corporation Common Sense Media Consumer Electronics Association Cox Communications, Inc. CTIA-The Wireless Association CustomPlay, LLC Decency Enforcement Center for Television Digimarc Corporation Digital Media Association Digital Watermarking Alliance DIRECTV, Inc. DISH Network LLC DTV Innovations, LLC Entertainment Software Association Family Online Safety Institute Google, Inc. Joint Comments of Industry & Public Interest Groups Joint Comments of National Cable Television Association, National Association of Broadcasters, and the Motion Picture Association of America Microsoft Corporation Morality in Media Motion Picture Association of America National Association of Recording Merchandisers National Cable & Telecommunications Association National Hispanic Media Coalition Richard Kahlenberg Sanyo Manufacturing Corporation Smart Television Alliance Sprint Nextel Corporation TiVo Inc. TVGuardian, LLC TV Watch United States Telecom Association Verizon Wi-LAN V-chip Corporation Federal Communications Commission FCC 09-69 89 APPENDIX B Reply Comments American Legislative Exchange Council (“ALEC”) Association of National Advertisers, Inc. (“ANA”), the American Advertising Federation (“AAF”), and the American Association of Advertising Agencies (“AAAA”) Children’s Media Policy Coalition Coalition for Independent Ratings Comcast Corporation Consumer Electronics Association Digimarc Corporation Electronic Frontier Foundation Entertainment Software Association Funai Electric Co., Ltd. and Funai Corporation, Inc. ION Media Netoworks Microsoft Corporation Motorola Inc. National Association of Broadcasters, National Cable Television Association and the Motion Picture Association of America Nintendo of America Inc. Parents Television Council Smart Television Alliance T-Mobile USA TiVo Inc. TVGuardian, LLC * The Commission has also received thousands of comments from concerned individuals in this proceeding. These comments are available through the Commission’s electronic comment filing system. Federal Communications Commission FCC 09-69 90 STATEMENT OF CHAIRMAN JULIUS GENACHOWSKI Re: Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26 In the Child Safe Viewing Act of 2007, Congress instructed the Commission to conduct an inquiry into parental control technologies. Over the past six months, the Commission has compiled a record on existing technologies as well as technologies still in development. This report summarizes our findings. I cannot think of a more critical topic for the Commission to be considering right now than how to ensure that our children are protected from inappropriate content. Government has a vital role to play in helping parents and protecting children, while honoring and abiding by the First Amendment. For decades, parents have worried about shielding their children from harmful material on television and in our popular culture. In recent years, the explosion of new technologies has significantly increased the availability of inappropriate content and elevated parents’ concerns. We recognize that technology has created profound new challenges for parents by vastly expanding the scope and quantity of media available to our children. But technology also can—and must—be part of the solution. Parents must have access to control technologies that can appropriately limit their children’s exposure to unsuitable material. And we must encourage the development of parental control technologies so that they keep pace with innovation in the rest of the technology and information marketplace. It seems that every time we step into a consumer electronics store, there are a vast new array of devices and inventions that improve on what was available just months ago. As a society, we must find ways to promote that same rapid and ongoing improvement for the tools that we rely upon to protect our children. The report that we issue today details the technologies that are available to parents today – as well as technologies that are in development – to control their children’s access to media. While the record that was created in response to inquiry contains some important information for parents, it also raises important questions and exposes the need for further study of this essential issue. In the days ahead, the Commission will initiate a new notice of inquiry that will seek to gather new information on this topic as well as others related to children and media in the digital age. Federal Communications Commission FCC 09-69 91 STATEMENT OF COMMISSIONER MICHAEL J. COPPS Re: Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26 I am pleased to support submittal of this Report to Congress in response to the mandate of the Child Safe Viewing Act of 2007. As I continue to discuss our nation’s media with people throughout the country, I consistently hear from parents about the programming their children are exposed to—on broadcast television, on cable or satellite, on the Internet, on their mobile devices. Graphically violent and indecent content is all too present. While I hear many voices, there is one common refrain: parents, concerned about the many images their children see on these different modes of distribution, seek reliable, effective ways to protect their children from inappropriate content. Media and communications technologies present all of us—especially our children—with new opportunities for learning and acquiring skills to succeed in our increasingly technology-driven society. At the same time, these advances pose large and growing challenges to parents’ ability to control the content to which their children are exposed. Parents are the first line of defense in protecting their children against these barrages of violent and indecent images. But parents must be armed with information about programming content and the tools to prevent their children’s exposure to objectionable content. As required by the Child Safe Viewing Act, the Commission issued a Notice of Inquiry to examine advanced blocking technologies currently available across a range of media platforms and devices. The resulting Report shows that industry has responded to parents' concerns by developing several blocking and filtering options intended to aid parents in protecting their children from objectionable programming. However, the Report also reveals a multiplicity of complicated, disparate technology tools which each apply only to specific media, and, in some instances, only to specific providers. So parents are challenged to become familiar with, and learn to use, all sorts of different blocking tools and program ratings systems. No wonder parents have such a hard time! Just as bad, even when a parent successfully masters all this, his or her children often are able to find the same programming online or on their wireless devices. For all the gains new technology tools may bring us, let's not jump to the conclusion that technology alone is necessarily the whole answer. It may very well be that we need to consider other options, beyond technology-based solutions, to halt the bombardment of our kids with objectionable programming. I am encouraged that this Report acknowledges that the record compiled so far fails to address all key questions when it comes to protecting children in the evolving digital media marketplace. I want to make sure this acknowledgment receives the attention it merits. The Commission will be pursuing this issue further with a subsequent Notice of Inquiry. The Commission, the Congress, and all of us as citizens have more work to do before we understand all the myriad causes underlying the decline of child-friendly programming standards. In the final analysis, it may be that other tools—a voluntary code of conduct, a Commission rule, a federal statute—may be needed to meet the goals of true child safe viewing. Federal Communications Commission FCC 09-69 92 I am grateful to Congress for providing the opportunity for the Commission to begin serious inquiry into these important questions. I particularly thank Senator Mark Pryor and his colleagues for their leadership in bringing these issues to the fore. I also commend FCC Chairman Julius Genachowski for his leadership in bringing this Report to Congress. It is my hope and expectation that the Commission will continue to work towards a comprehensive solution that will do an effective job in protecting America’s children. Federal Communications Commission FCC 09-69 93 STATEMENT OF COMMISSIONER ROBERT M. MCDOWELL Re: Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26 I am pleased to join with my colleagues in delivering – on time – our Report to Congress pursuant to the Child Safe Viewing Act. Spearheaded by the efforts of Senator Mark Pryor of Arkansas, Congress directed us to report on the existence and efficacy of various “advanced blocking technologies” that permit parents to shield their children from inappropriate video and audio content when such content is distributed across a wide range of electronic communications systems. Thanks to the labor of staffers across the Commission – including those in the Media Bureau, Wireless Telecommunications Bureau, Wireline Competition Bureau, Office of Engineering and Technology and Office of Strategic Planning and Policy Analysis – the agency has produced a comprehensive overview of the information submitted in the docket. Our 90-page Report makes plain that an array of filtering technologies have proliferated across broadcasting, cable, satellite, wireless, and Internet platforms. As the father of three young children, I am keenly interested in the availability and usefulness of parental-control mechanisms. As a regulator, I note that many of the most innovative new systems and devices have come into being in response to consumer demand rather than government mandate. The Report, by bringing much wide-ranging data together in one document, should provide a solid empirical foundation for future inquiry in this arena. The Report also makes plain that despite what we now know about existing parental-control technologies, we still lack data and analysis required to grapple with such thorny issues as the need for possible improvements, if any, to existing systems and the scope of our legal authority to take actions that some may see as desirable. Again, I thank the Commission staff for its work in helping us to produce a data-filled document. I hope that Members of Congress find it useful in getting up to speed on the technological advancements that communication service and content providers have delivered to date to help American parents guide and protect their children. Federal Communications Commission FCC 09-69 94 STATEMENT OF COMMISSIONER MIGNON L. CLYBURN Re: Implementation of Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26; Report I commend Senator Mark Pryor and the Senate Committee on Commerce, Science and Transportation for compelling the Commission to take stock of the current technologies that afford parents greater control over the content available to their children through various media. Today’s Report is a small step forward in our larger quest to ensure that the digital age is a thoroughly positive one for parents and their children. On a daily basis, parents are faced with the seemingly insurmountable challenge of monitoring what their children are viewing. Especially in today’s economy, where parents may be forced to work harder and longer to make ends meet, many children have more time without direct supervision. Under these conditions, our duty is to find ways to help parents maintain a presence even when they are not actually there. Families deserve that level of security and peace of mind. Today’s Report catalogues the myriad blocking technologies available across a variety of platforms and describes the lack of consistency among and within those platforms. It appears that many parents are unaware of these technologies or, even if aware, they have been unable to figure out how to use them. The upshot is that parents are currently wading around in a digital gumbo, either unfamiliar with the many available tools or simply overwhelmed by them. What remains unexamined is exactly why parents have not adopted the various advanced blocking technologies. Are they simply unaware? Are the technologies too confusing? Is the discontinuity in the ratings a factor? These are critical questions that must be answered if we are to come to grips with why the V-chip and other technologies of its kind have failed to become a meaningful part of the viewing experiences of American families. The information is out there; our job is to find and cultivate it. I thank the various bureaus and offices that worked hard to produce this Report in a timely fashion. I look forward to working with them, the Chairman, and my fellow Commissioners to further this inquiry and provide families with meaningful control over the many forms of media available to their children. Federal Communications Commission FCC 09-69 95 STATEMENT OF COMMISSIONER MEREDITH A. BAKER Re: Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, Report One of the most important and demanding jobs is that of a parent. The barrage of indecent, violent or otherwise objectionable programming to which our children have access can present a daunting parenting challenge. Because extreme images and words have a powerful influence on the behavior of our children, parents must have the tools to allow them to identify harmful content so that they can protect their families. Recent surveys reveal a low rate of V-chip use—according to a 2007 study by the Kaiser Family Foundation, only about 16 percent of parents have used this technology. With the emergence of additional “new” media—such as advanced wireless devices and the Internet—that can deliver audio and video programming to our children, the challenges confronting parents have multiplied. Now, material can be accessed on portable devices outside of the home, far from parental supervision. I am encouraged that the Commission has engaged in this fresh, top-to-bottom review of this important subject, leading to the Report to Congress that we have adopted today. I have a long-standing interest in finding ways to protect our children from harmful material. During my previous tenure as Acting Administrator of the National Telecommunications and Information Administration, we convened a working group to consider ways to shield them from inappropriate online content. As we recognized then, all parents want to keep their children safe. Today’s Report categorizes and analyzes the sizeable record compiled in our proceeding. The Commission has heard from a wide range of commenters and compiled information about the various rating systems and blocking tools available for matter delivered over a wide variety of media platforms. We have also received comments on how we can encourage the development, deployment and use of improved mechanisms to assist parents. Despite the volume and breadth of the record, however, today’s Report is only the initial step in this process. As we note, there is much data that we still require, and a number of legal questions that we may need to resolve, including those involving the First Amendment and the extent of our statutory authority. I am pleased that additional proceedings are contemplated to seek out this necessary information, and I encourage all interested parties to make their views known. While increased Commission regulation should not be the solution here, I cannot agree with those industry commenters who maintain that the status quo is acceptable. Parents must be provided access to reliable programming ratings information and easy to use blocking and filtering tools. Because such technologies must be improved, we need a full, collaborative effort by all stakeholders, pooling their resources and expertise. Together, we can build on the V-chip and fashion new, more technologically advanced mechanisms to enable parents to protect their children from harmful content over any platform. In light of the current level of V-chip use, we must also find ways to more effectively reach out to parents and make them familiar with these resources, so that they will become more comfortable using them. Federal Communications Commission FCC 09-69 96 I am pleased to vote in favor of this Report, and want to recognize the hard work and long hours logged by the Media Bureau in its preparation, as well as the valuable contributions of the Wireless Telecommunications Bureau, the Office of Engineering and Technology, and the Office of Strategic Planning and Policy Analysis. As a result of their efforts, the Commission is prepared to assist in the development of a new generation of parental control tools. I look forward to working in this effort with all interested parties, along with the Chairman, my fellow Commissioners and our dedicated FCC staff. Together, we can make a real difference in helping our nation’s parents foster the healthy development of America’s greatest resource: our children.