The opinion
TATEL, Circuit Judge,
dissenting in part:
I concur in all of the court’s opinion except Part XI, which upholds section 15 of the 1992 Cable Act, the Premium Channel Notice Provision. I agree that the government has a compelling interest in protecting children. See Maj. op. at 982; see also Denver Area Educ. Telecommunications Consortium, Inc. v. ECC, — U.S.-,-, 116 S.Ct. 2374, 2387 , 135 L.Ed.2d 888 (1996). But because I do not believe we can sustain the statute’s constitutionality on this record, I respectfully dissent.
Section 15 plainly discriminates among programmers based solely on the content of their speech. While operators must provide thirty days advance notice to all subscribers when offering free previews of “pay service” channels carrying movies rated R, NC-17, or X — a rating system based solely on the movies’ content — they need not provide such notice when offering free previews of pay channels not carrying such movies. The court does not dispute this.
Nor could the court deny that section 15 is patently overbroad and underinclusive, and probably does not even accomplish its intended goal — all defects with significant First Amendment implications:
• Section 15 is overbroad because it requires notice to even those customers already subscribing to the “premium channel,” as well as notice every time a premium channel seeks to show a free preview, even a preview with no movies rated R, NC-17, or X. Section 15 would thus require a cable operator offering a free preview of Snow White and the Seven Dwarfs on a “premium channel” to give thirty days advance notice.
• Section 15 is underinclusive because it covers only “pay service” channels, not other stations seeking to show the same movies, see Daniels Cablevision, Inc. v. United States, 835 F.Supp. 1, 9 (D.D.C.1993), and it does not apply to indecent programming not rated by the MPAA, id. at 9 n. 16; see also Denver, — U.S. at-, 116 S.Ct. at 2392 (noting “patently offensive” programming found on both leased access and non-leased access cable channels); In the Matter of Enforcement of Prohibitions Against the Use of Common Carriers for the Transmission of Obscene Materials, 2 F.C.C.R. 2819, 2820 (1987) (noting that “non-MPAA member companies ... are not required to have their movies rated” and that “the lack of a rating bears no relationship to the content of a film” (internal quotations omitted)).
• Because section 15 does not require operators to inform subscribers that the term “premium channel” is defined as a channel that shows movies rated R, NC-17, or X, the statute only marginally furthers the government’s stated interest of warning parents about indecent programming. See 47 U.S.C. § 544 (d)(3)(A)(i) (requiring notice’ that operator will provide premium channel free preview); § 544(d)(3)(A)(ii) (requiring notice of when operator will offer the free preview); § 544(d)(3)(A)(iii) (requiring notice of customers’ right to block). Subscribers- unaware that “premium channels” show such movies would thus not have the very information the government believes to be so valuable: that the free preview may include materials inappropriate for their children. The Government acknowledges this statutory flaw, stating in its brief that section 15 “simply requires advance notice; the operator is free to describe in any way the programming that is to be previewed *984 free of charge.” Opening Brief for the FCC and the United States at 66 n.21.
Section 15 thus “does not reveal the caution and care” First Amendment jurisprudence requires. Denver, — U.S. at -, 116 S.Ct. at 2392 . Were the court to engage in ordinary First Amendment analysis, I have little doubt it would be hard-pressed to uphold section 15 under either strict scrutiny, Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 , 109 S.Ct. 2829, 2836 , 106 L.Ed.2d 93 (1989) (requiring that content-based statute be “least restrictive means to further the articulated interest”), or even the “close judicial scrutiny” standard endorsed by four Justices in Denver , — U.S. at-, 116 S.Ct. at 2378 (plurality opinion) (invalidating statute if it imposes “unnecessarily great restriction on speech”).
The court, however, sidesteps the free expression issues in this case, concluding that because “[njothing in section 15 prohibits a cable operator from running any program a subscriber desires,” Maj. op. at 982, the statute does not restrict speech. To arrive at this conclusion, the court assumes that “the increased costs associated with the advance notice cannot be significant.” Maj. op. at 982. Yet the record contains abundant un-controverted evidence that the costs of notice are not only significant, but also so prohibitive as to make free previews financially impractical. According to the President of Time Warner’s Austin Division, for example, “because of the requirements of the 1992 Cable Act regarding free previews, the Austin Division has discontinued all previews of premium services that offer movies rated by the Motion Picture Association of America as X, NC-17[,] or R.” Rutledge Aff. ¶3. Time Warner’s San Diego Division President stated that “[tjhe notice, which takes the form of a bill insert, has a cost of between .02<c — ,03<f per subscriber, depending on the number of other bill inserts included in a given month, or a total of between $3,240.00 — $4,860.00.” Burr Aff. ¶3. See also Bewkes Aff. ¶7; Collins Aff. ¶ 39; Hanson Aff. ¶¶ 4-5; High Aff. ¶¶ 3 — 4; Mitchell Aff. ¶¶3-4; Sharrard Aff. ¶ 2. Thus, the court ignores both the record and, contrary to Supreme Court precedent, the statute’s practical effects. See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 255 , 107 S.Ct. 616, 626 , 93 L.Ed.2d 539 (1986) (plurality opinion) (“The fact that [a] statute’s practical effect may be to discourage protected speech is sufficient to characterize [it] as an infringement on First Amendment activities.”); American Communications Ass’n v. Douds, 339 U.S. 382, 402 , 70 S.Ct. 674, 686 , 94 L.Ed. 925 (1950) (“[T]he fact that no direct restraint or punishment is imposed upon speech ... does not determine the free speech question.”). The court overlooks “a notion so engrained in ... First Amendment jurisprudence that ... [the Supreme Court] found it so ‘obvious’ as to not require explanation”: “A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.” Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105 , 115— 16, 112 S.Ct. 501, 508 , 116 L.Ed.2d 476 (quoting Leathers v. Medlock, 499 U.S. 439, 447 , 111 S.Ct. 1438, 1443-44 , 113 L.Ed.2d 494 (1991)).
The court relies on Meese v. Keene, 481 U.S. 465, 480-81 , 107 S.Ct. 1862, 1871 , 95 L.Ed.2d 415 (1987), for the proposition that “disclosure” statutes do not burden speech. In my view, Keene does not so hold. The Supreme Court has long subjected disclosure statutes to serious First Amendment scrutiny. See, e.g., Riley v. National Fed’n of the Blind, 487 U.S. 781, 798 , 108 S.Ct. 2667, 2678 , 101 L.Ed.2d 669 (1988) (subjecting to “exacting First Amendment scrutiny” statute that required professional fundraisers to disclose to potential donors percentage of charitable contributions actually turned over to charity); Buckley v. Valeo, 424 U.S. 1, 64 , 96 S.Ct. 612, 656 , 46 L.Ed.2d 659 (1976) (“[W]e have repeatedly found that compelled disclosure, in itself, can seriously infringe on ... the First Amendment.”). Moreover, Keene did not involve the constitutionality of disclosure requirements. See Keene, 481 U.S. at 467 , 107 S.Ct. at 1864 . Keene’s sole issue was the constitutionality of Congress’s use of the term “political propaganda” in a statute requiring the labeling of certain films. The Supreme Court simply held that the “mere designation” of a film as “political propaganda” does not pose any “obstacle” to speech, *985 and thus “places no burden on protected expression.” Id. at 480 , 107 S.Ct. at 1871. Keene would be relevant here, as might the Supreme Court’s approving reference in Denver to “informational requirements,” only if section 15 required merely the designation of programs as R, NC-17, or X, either at the time of showing or in some other way that did not burden speech. But section 15 goes beyond requiring labeling. Here we have uncontroverted evidence that by requiring thirty days advance notice, section 15 creates an obstacle to the exercise of free expression by imposing a financial burden on speech, see Simon & Schuster, 502 U.S. at 115 , 112 S.Ct. at 507 -08 — a burden so great as to make certain speech, solely because of its content, financially impractical.
Although I dissent from the court’s conclusion that the notice requirement does not burden speech, I do not believe the district court should have granted Time Warner summary judgment without affording the Government an opportunity for further discovery. The district court concluded that “[t]he notice requirements make carriage of free previews less practicable and more costly.” Daniels, 835 F.Supp. at 9 . Given the uncontroverted factual record before it, this conclusion was reasonable. But the Government treated Time Warner’s affidavits as “going only to support plaintiffs’ claims of injury for purposes of establishing jurisdiction,” Sitcov Decl. ¶ 3, properly requesting further discovery pursuant to Federal Rule of Civil Procedure 56(f) were the district court to treat any of Time Warner’s evidence as relevant to the merits of the case. See id. ¶4. I would therefore remand for further development of the record on the factual question of whether section 15 imposes financial burdens on Time Warner’s speech.