Supreme Court Videogame Ruling Import Limited for Broadcast Indecency, Says ESA CEO
A Supreme Court decision on videogames may have limited import for broadcasters in an indecency case before the high court, Entertainment Software Association CEO Michael Gallagher said Tuesday. June’s Brown ruling striking down California’s ban on the sale of violent games to kids may help broadcasters some in the consolidated FCC v. ABC and Fox case, he said. But, because TV stations use public airwaves, the videogames ruling may not foretell a clearcut win for broadcasting, Gallagher said in response to a question from a TV executive at an industry lunch in Washington. Gallagher told us it may take time for the commission to approve ESA’s separate waiver request from disabilities accessibility rules for all videogames.
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Gallagher hopes the Brown ruling will be a watershed of sorts for his industry, prompting members of the public and policymakers to pay attention to the positive aspects of videogames. The industry “must seize the opportunity presented by the court to capitalize on our creative abilities in ways that strengthen our society,” he said during a speech at a Media Institute event. Gallagher was surprised by the Brown ruling, because he'd prepared for the worst in the case, he said during Q-and-A. “I'm still in a state of disbelief that we actually achieved the result we did” and that “the court ruled as clearly and as convincingly,” he said.
"Those are definitely winds at the back of the broadcast industry,” Gallagher said. TV stations however use “a public good” to transmit programming terrestrially, even though only about 8 percent of American households rely on over-the-air TV, he said during Q-and-A. “There is still that linkage, and I think that could be problematic” in the ABC/Fox case, Gallagher said. “In many ways, you are asking the wrong person” for a prediction on broadcast indecency, since that’s not what he’s focused on, Gallagher said. Independent constitutional law scholars have said Brown may help broadcasters win in the indecency case, which will be heard in the next few months by the Supreme Court (CD July 6 p4).
ESA hasn’t taken a position recently on the spectrum reallocation from TV stations to wireless broadband that some audience members, including CEA President Gary Shapiro, seek and broadcasters are cautious about. “You'll see something from us very soon on that,” Gallagher said. “You'll hear more” on the reallocation and “on the importance of an auction of spectrum,” he said.
On implementation of the 21st Century Communications and Video Accessibility Act that Congress passed last year, Gallagher said FCC officials have kept an “open mind” on ESA’s request for an open-ended waiver of advanced communications service rules for all videogames. “We've been up there visiting with them” (CD Aug 11 p13), he said. ESA has had five lobbying meetings at the FCC since July 1 on the subject, filings in docket 10-213 show. “We're also very mindful of the challenges the commission faces in implementing the CVAA,” Gallagher said. “We think it’s very clear in the statute that the waiver provision was designed for services that our industry makes” and its applications, “because the principal purpose as designed is video games” and not advanced communications services, Gallagher said.
Devices including Microsoft’s Kinect controller and remote controls for Nintendo’s Wii and Sony’s PS3 videogame consoles each are a “videogame device” -- and that speaks for itself, Gallagher said. “It’s not designed for advanced communications services, which is the focus of the” act, he said. The FCC Monday night released a rulemaking notice on the act and captioning of Internet content. (See separate story in this issue.) “We feel we're being heard by the commission, but are also patient” with the agency, Gallagher said, to “navigate what will undoubtedly be a challenging path.”