Petition for Writ of Certiorari — Denver Area Ed. Telecommunications Consortium, Inc. v. FCC

Supreme Court brief1996

Ask Donna

What actually matters in this document.

Text

“BILLED

Ne. 95 124 si 21 19%

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1995

DENVER AREA EDUCATIONAL TELECOMMUNICATIONS

CONSORTIUM, INC. AND AMERICAN CIVIL LIBERTIES UNION,

Petitioners,

—_—V—

FEDERAL COMMUNICATIONS COMMISSION

AND UNITED STATES OF AMERICA, et al.,

Respondents.

JN PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

STEVEN R. SHAPIRO CHARLES S. SIMS

MARJORIE HEINS Counsel of Record

American Civil Liberties PETER J. W. SHERWIN

Union Foundation Proskauer Rose Goetz

132 West 43d Street & Mendelsohn LLP

New York, New York 10036 1585 Broadway

(212) 944-9800 New York, New York 10036

(212) 969-3000

Counsel for Petitioners

QUESTIONS PRESENTED

Sections 10(a) and (b) of the 1992 Cable Act establish a

comprehensive scheme for censorship of “indecent programming”

on leased access channels. Congress authorized cable operators to

prohibit programming that they “reasonably believe” to be indecent

and, in the alternative, required such protected speech to be placed

on segregated channels that must be blocked until the subscriber

requests access in writing and for up to thirty days thereafter.

Section 10(c) authorized cable operators to prohibit programming

on public, educational, and governmental access channels that is

“sexually explicit” or “solicits or promotes unlawful conduct.”

1. Is section 10 unconstitutionally vague under the heightened

scrutiny required in First Amendment cases, where it (A) defines

“indecent programming” based upon its “patently offensive manner

as measured by contemporary community standards,” (B) authorizes

cable operators to ban leased access programming that they

“reasonably believe” to be indecent, and (C) will produce self-

censorship by access programmers by requiring them — on pain of

fines or cut-off of access — to guess what the FCC may decide is,

and what a cable operator may “reasonably believe” to be,

“indecent,” and to certify that their programs do not violate these

standards?

2. Is section 10’s explicitly content- and speaker-based

censorship scheme immune from First Amendment scrutiny as not

“state action” because it delegates censorship decisions in part to

cable operators, where (A) petitioners challenge a congressional

Statute, not a cable operator’s specific censorship decisions,

(B) Congress and the FCC have defined the category of disfavored

speech that they wish cable operators to censor, and (C) Congress

has created a joint enterprise with cable operators to effect its

censorship scheme, in which the FCC is integrally involved?

3. Can section 10(b) be upheld as the least restrictive means

of achieving a “compelling” interest in shielding minors from

“indecent” speech, where (A) the interest underlying section 10 is

already well-advanced by existing, less-restrictive regulation and

additional less restrictive means exist and (B) cable operators are

free to continue showing on commercial channels the same

programs they must now block on leased access channels, thereby

demonstrating that section 10 is unjustifiably underinclusive?

LIST OF PARTIES

The judgment here sought to be reviewed was rendered in a

proceeding in which four petitions for review of orders of the

Federal Communications Commission were consolidated: actions

nos. 93-1169, 93-1171, 93-1270, and 93-1276. Petitioner Denver

Area Educational Telecommunications Consortium, Inc. was a

petitioner in action no. 93-1171, and petitioner American Civil

Liberties Union was a petitioner in actions nos. 93-1171 and 93-

1276.”

In addition to those listed on the cover, respondents include

Alliance for Community Media, Alliance for Communication

Democracy, and People for the American Way, which were

petitioners in actions nos. 93-1169 and 93-1270, and New York

Citizens Committee for Responsible Media, Media Access New

York, Brooklyn Producers’ Group, David Channon, and National

Cable Television Association, Inc., which were intervenors in all

four actions.

Petitioners have no parent companies or subsidiaries.

TABLE OF CONTENTS

QUESTIONS PRESENTED .................. i

eS ce cc ccc eee cceess ii

ks cece cece ecacccs 2

CONSTITUTIONAL PROVISIONS, STATUTES, AND

REGULATIONS INVOLVED .............

STATEMENT OF THECASE................

REASONS FOR GRANTING THE WRIT......... 10

l. WHETHER SECTION 10 Is UNCONSTITUTIONALLY

VAGUE UNDER THE HEIGHTENED SCRUTINY

REQUIRED FOR STATUTES DIRECTED AT SPEECH

AND LACKS ESSENTIAL PROCEDURAL SAFEGUARDS

ARE IMPORTANT ISSUES OF FEDERAL LAW THAT

SHOULD BE SETTLED BY THE CouRT.......... 11

Il. WHETHER CONTENT-BASED AND SPEAKER-BASED

FEDERAL STATUTORY PROVISIONS AIMED AT

SPEECH CAN BE IMMUNE FROM CONSTITUTIONAL

SCRUTINY SIMPLY BECAUSE THEY DELEGATE

CENSORSHIP DETERMINATIONS IN PART TO PRIVATE

PARTIES IS AN IMPORTANT ISSUE OF FEDERAL LAW

THAT SHOULD BE SETTLED BY THE CouRT .... . 17

II]. WHETHER SECTION 10(B) VIOLATES THE First

AMENDMENT AS NOT THE LEAST RESTRICTIVE

MEANS TO ACHIEVE A COMPELLING GOVERNMENT

INTEREST AND AS UNJUSTIFIABLY UNDERINCLUSIVE

IS AN IMPORTANT ISSUE OF FEDERAL LAW THAT

SHOULD BE SETTLED BY THE CouRT.......... 21

I 25

APPENDIX

In Banc Per Curiam Order of the Court of Appeals

for the District of Columbia Circuit Staying

the Issuance of the Mandate ........... la

In Banc Opinion of the Court of Appeals for the

District of Columbia Circuit........... 2a

In Banc Per Curiam Order of the Court of Appeals

for the District of Columbia Circuit Vacating

the Panel Opinion, 15 F.3d 812 (1994) .... 89a

Panel Opinion of the Court of Appeals for the

District of Columbia Circuit, 10 F.3d 812

GE tacedebhebuncuandaes se iss 90a

Section 10 of the Cable Television Consumer

Protection and Competition Act of 1992, Pub.

L. No. 102-385, § 10, 106 Stat. 1460, 1486

(1992) (codified at 47 U.S.C. §§ 531, 532(h),

Pr ee ee a 126a

First Report and Order in the Matter of

Implementation of Section 10 of the Cable

Consumer Protection and Competition Act of

1992, FCC 93-72, 8 FCC Red 998 (1993)

(summary of report and reprint of order at 58

Fed. Reg. 7990 (1993)) (codified at 47

CP 6 EEE 6.64 0 0 600 688 0 0lee as 128a

Second Report and Order in the Matter of

Implementation of Section 10 of the Cable

Consumer Protection and Competition Act of

1992, FCC 93-164, 8 FCC Red 2638 (1993)

(summary of report and reprint of order at 58

Fed. Reg. 19,623 (1993)) (codified at 47

Ci ee 2 640 eb eRe ES 178a

TABLE OF AUTHORITIES

CASES Page(s)

Action for Children’s Television v. FCC,

852 F.2d 1332 (D.C. Cir. 1988) ......... 15, 16

Action for Children’s Television v. FCC,

932 F.2d 1504 (D.C. Cir. 1991),

cert. denied, S03 U.S. 913 (1992) .......... 15

Adickes v. S.H. Kress & Co.,

ee 5d ods a ow nike eee Aare 20

Altmann v. Television Signal Corp...

849 F. Supp. 1335 (N.D. Cal. 1994) ........ 19

Arkansas Writers’ Project, Inc. v. Ragland,

2) Ye fF re eee eros 23

Baggett v. Bullitt,

ee ee ek eG ark x ed oa eg oh 13

Bella Lewitzky Dance Found. v. Frohnmayer,

754 F. Supp. 774 (C.D. Cal. 1991) ......... 13

Blum v. Yaretsky,

og 8 Of ere ee oe 21

Calhoon v. Harvey,

og RO eee 11

Carey v. Brown,

a a <o 5 coe ea ab oe wwe a 23

City of Lakewood v. Plain Dealer Publishing Co.,

CC -“-6 edb b4% 6 60 ou 4 ua 14

Connally v. General Constr. Co.,

DP Nansen wwe os koe ous 1]

Cramp v. Board of Public Instruction,

PR scence usceseeken es 14

Dennis v. Sparks,

ge Be ie 2 ee 20

Engdahi v. City of Kenosha,

317 F. Supp. 1133 (E.D. Wis. 1970) ........ 15

FCC v. League of Women Voters,

SP EE, kc oc eb cdeeeeusness 22

FCC v. Pacifica Communications Comm'n,

EE oS ee eo ele i aie ece ts 15

First Nat'l Bank v. Bellotti.

I ee ee ee 22

Florida Star v. B.J.F.,

Ce oi ¢iGeaee ees eels «s 22

Freedman v. Maryland,

4 8 fl ee eee ae 10, 12, 14

Grayned v. City of Rockford,

Se ee ae 10, 11, 12

Gulf Offshore Co. v. Mobil Oil Corp.,

Ce 4 oso» se 6a es\sa6 Was 11

Heffron v. International Soc'y for Krisha

Consciousness, 452 U.S. 640 (1981) ......... 1]

Jacobellis v. Ohio,

Ee eine ek 6 ede ee 13

Lamont v. Postmaster General,

SD EY du k oko aad eee ae ees 24

Lebron v. National R.R. Passenger Corp..,

Pe ED og ns a 66 0 6.668 wl 18

Massachusetts v. United States,

I I oc is ot er oe ok 11

Miller v. California,

CE: tu os ad's. ee & 0.8 OOO 13

Vil

Motion Picture Ass'n of Am. v. Specter,

315 F. Supp. 824 (E.D. Pa. 1970) .......... 15

National Ass'n of Theatre Owners v. Motion Picture

Comm'n, 328 F. Supp. 6 (E.D. Wis. 1971) .... 15

Norwood v. Harrison,

og ee 21

Railway Employees’ Dep't v. Hanson,

Se We MPC kv cece cwcees 10, 19, 20

Sable Communications of California, Inc. v. FCC,

ee We SUP GEIED cc tccccces 11, 17, 21, 22

Shamloo v. Mississippi State Bd.,

620 F.2d 516 (Sth Cir. 1980) ............., 16

Skinner v. Railway Labor Executives’ Ass'n,

Se 10, 20

Southeastern Promotions, Lid. v. Conrad.

ee —

Video Software Dealers Ass'n v. Webster,

968 F.2d 684 (8th Cir. 1992) ............, 16

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982) .......... 12

CONSTITUTIONAL PROVISIONS

U.S. CONST. AMEND. I

U.S. CONST. AMEND. V

STATUTES

Section 10 of the Cable Television Consumer

Protection and Competition Act of 1992, Pub.

L. No. 102-385, § 10, 106 Stat. 1460, 1486 . . passim

fF A Perera rs ke eh aor ee he 2

ee EEE 5 6 6 40 6-6 6 ees 40K ed sa ROO 7

| | eres rere ee es oP 3

| Pree ee hoe a wae wir a tof 3

a fo | reer a ee ee eee oe 3

ee a ho sb eee 86 bee 3, 23

Se ee eee eer ee 3

REGULATIONS

First Report and Order in the Matter of Implementation

of Section 10 of the Cable Consumer Protection

and Competition Act of 1992, FCC 93-72, 8

Fan DE whe Gece eee ek se es passim

Second Report and Order in the Matter of

Implementation of Section 10 of the Cable

Consumer Protection and Competition Act of

1992, FCC 93-164, 8 FCC Red 2638 (1993) . . passim

RF eR ae I et tee aN ae 3

LEGISLATIVE MATERIALS

138 CONG. REC. $646 (daily ed. Jan. 30, 1992) ....... 5

138 CONG. REC. S652 (daily ed. Jan. 30, 1992) ....... 3

H.R. Rep. No. 934, 98th Cong., 2d Sess. 70 (1984) ... 23

TREATISES

Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW

ER RNA ae ee et gee 19

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

DENVER AREA EDUCATIONAL TELECOMMUNICATIONS

CONSORTIUM, INC. AND AMERICAN CIVIL LIBERTIES UNION,

Petitioners,

—VY,.—

FEDERAL COMMUNICATIONS COMMISSION

AND UNITED STATES OF AMERICA, ef al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners respectfully petition this Court to issue a writ of

certiorari to review the June 6, 1995 judgment of the United

States Court of Appeals for the District of Columbia Circuit

sitting in banc, sustaining section 10 of the Cable Television

Consumer Protection and Competition Act of 1992, Pub. L. No.

102-385, § 10, 106 Stat. 1460, 1486 (codified at 47 U.S.C.

§§ 531, 532(h), 532(j), and 558), and the Federal Communication

Commission's implementing regulations.

OPINIONS BELOW

The in banc opinion of the United States Court of Appeals for

the District of Columbia Circuit is not yet published and is

reprinted in the appendix below (“Pet. App.”) at 2a.' The in

banc per curiam order vacating the panel decision is reported at

_a” refers to the Appendix to this Petition below.

15 F.3d 186 and reprinted below at 89a. The panel decision is

reported at 19 F.3d 812 and reprinted below at 90a.

JURISDICTION

The court of appeals issued its decision on June 6, 1995. The

court then granted a motion to stay the issuance of the mandate,

which stay is effective until August 9, 1995 and thereafter if a

petition for writ of certiorari is filed by that date. Pet. App. la.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS,

STATUTES, AND REGULATIONS INVOLVED

The First Amendment to the Constitution of the United States

provides, in pertinent part, that “Congress shall make no law . .

abridging the freedom of speech, or of the press... .” The

Fifth Amendment to the Constitution to the United States

provides, in pertinent part, that “No person shall. . . be deprived

of life, liberty, or property, without due process of law... .”

Section 10 of the Cable Television Consumer Protection and

Competition Act of 1992, Pub. L. No. 102-385, § 10, 106 Stat.

1460, 1486 (codified at 47 U.S.C. §§ 531, 532(h), 532(j), and

558) (“section 10”) is reproduced below at 126a.

The implementing regulations of the Federal Communications

Commission (“FCC”) are the First Report and Order in the

Matter of Implementation of Section 10 of the Cable Consumer

Protection and Competition Act of 1992, FCC 93-72, 8 FCC Red

998 (1993) (summary of report and reprint of order at 58 Fed.

Reg. 7990 (1993)) (codified at 47 C.F.R. § 76.701) (“First

Report and Order”), which is reproduced below at 128a, and the

Second Report and Order in the Matter of Implementation of

Section 10 of the Cable Consumer Protection and Competition

Act of 1992, FCC 93-164, 8 FCC Red 2638 (1993) (summary of

report and reprint of order at 58 Fed. Reg. 19,623 (1993))

(codified at 47 C.F.R. § 76.702) (“Second Report and Order”),

which is reproduced below at 178a.

STATEMENT OF THE CASE

1. Seeking, in part, to “assure that cable communications

provide . . . the widest possible diversity of information sources

and services to the public,” 47 U.S.C. § 521, Congress passed

the Cable Communication Policy Act of 1984, which required

cable operators to set aside channels for leased access

programming that the operators were forbidden to censor. id.

§ 532(b), (c)(2), and prohibited them from censoring

programming on the public, educational, and governmental

(“PEG”) access channels that are required under most cable

franchises, id. § 531(e). Because cable operators were barred

from exercising editorial control over these access channels.

which the FCC has held to be a “public forum,”? Congress

shielded cable operators from liability for access programming.

Id. § 558. In another provision of the Act, Congress required

cable operators to provide “lockboxes” that enable a subscriber

to block any cable channel during selected periods, id.

§ 544(d)(2); this provision remains in effect.

In 1992, Congress again focused on the cable industry — this

time primarily to re-regulate rates, address customer service

practices, and implement “must-carry” broadcast rules — and

enacted the Cable Television Consumer Protection and

Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460.

On the last legislative day before the Senate approved its bill,

Senator Helms offered two floor amendments and then-Senator

Fowler offered a third that collectively became section 10, which

is entitled “Children’s Protection from Indecent Programming on

Leased Access Channels.” Senator Helms plainly stated the

purpose of section 10's liability provision: to “put an end to the

kind of things going on” on access channels. 138 CONG. REC.

$652 (daily ed. Jan. 30, 1992). No other provision in either of

the lengthy Senate or House bills even remotely treated the

subject matter of, or resembled, section 10, which was never sent

* 87 F.C.C.2d 40, 42 (1981).

to a committee and was never the subject of any congressional

findings.

Section 10 established a censorship scheme with four

interlocking parts. Section 10(a) authorized cable operators to

ban from leased access channels what they “reasonably believe[ |

describes or depicts sexual or excretory activities or organs in a

patently offensive manner as measured by contemporary

community standards”; cable operators were given, and have, no

other authority to regulate the content of congressionally

mandated leased access programming. Pet. App. 126a.

Section 10(b), the stated purpose of which is “to limit the

access of children to indecent programming,” required the FCC

to prescribe rules requiring cable operators that have not

“voluntarily prohibited” programming under section 10(a) to

segregate all “indecent” leased access programming on blocked

channels that must remain blocked until] a subscriber requests

access in writing; Congress mandated no time period within

which such requests must be satisfied. Pet. App. 126a-27a.

Section 10(b) also required the FCC to prescribe rules requiring

leased access programmers to inform cable operators whether any

of their programming is “indecent.” Thus, if programmers do

not so certify, they are in effect promising that all of their works

are “decent.”

Section 10(c) applies to PEG access channels and authorized

cable operators to ban “any programming which contains obscene

material, sexually explicit conduct, or material soliciting or

promoting unlawful conduct.” Pet. App. 127a.

Finally, section 10(d) pressures cable operators to censor

“indecency” by eliminating their statutory immunity from liability

for programming on access channels that “involves obscene

material.” Pet. App. 127a.

2. On November 10, 1992, the FCC issued a notice of

proposed rulemaking to implement section 10 and requested

comments. Petitioners Denver Area Educational Telecommuni-

cations Consortium, Inc. (*DAETC”), which is a nonprofit cable

programmer operating a leased access cable service, and

American Civil Liberties Union (“ACLU”), whose members

include leased and PEG access viewers, (also collectively

“Petitioners”) submitted comments to the FCC expressing their

concerns about the constitutionality of section 10 and its impact

on cable system carriage of a wide variety of access

programming, much of which has serious journalistic or artistic

value.

Petitioners’ concerns stem, in large part, from section 10's

capacious definition of “indecent programming” as “describ{ing]

or depict{ing) sexual or excretory activities or organs in a

patently offensive manner as measured by contemporary

community standards.” Pet. App. 126a. Because this definition

has no substantive content except to subject any programming

containing any mention of human reproduction or sexuality,

regardless of its value, to a retrospective assessment of

“community standards” of “offensiveness,” it encompasses a far

wider range of programming — but how much more is uncertain

— than Senator Helms evidently envisioned from the examples he

gave on the Senate floor.’

For instance, DAETC’s cable access service, known as “The

90’s Channel,” offers in a verité style a wide variety of material,

often controversial and otherwise unavailable, on topics including

the Persian Gulf war, environmental contamination, AIDS,

racism, US-Cuba relations, art censorship, union organizing, the

Status of recent immigrants, gay rights, the Palestinian uprising,

issues of concern to Native Americans, prostitution, and prison

conditions. See Comments of DAETC on Notice of Proposed

Rule Making, Joint Appendix to the Panel of the Court of

* Senator Helms referenced programming on leased access that

purportedly featured people performing oral sex and included ads that

“promote incest, beastiality [sic], [and] even rape.” 138 CONG. REC.

$646 (daily ed. Jan. 30, 1992).

Appeals at 207-08. An important part of DAETC's programming

on many of these topics inextricably deals with sexuality, such as

the program segments about an organization that seeks to

demystify gynecology and teach women how to perform their

own pelvic exams, the controversy surrounding a Robert

Mapplethorpe art exhibit, a pro-choice performance artist, and an

annual Japanese fertility festival — all of which might well fall

within section 10’s broad regulatory definition of “indecency.

Id. at 219; see Pet. App. 44a-45a (Wald, J., dissenting).

3. On February 3, 1993, the FCC released its First Report

and Order, which adopted regulations to implement sections 10(a)

and (b) relating to leased access channels. Despite Petitioners

and other comments, the FCC defined “indecent” programming

almost identically to the language used in section 10(a),

authorized a cable operator to adopt and enforce a policy of

banning leased access programming that it “reasonably believes”

describes or depicts indecency, and, if a cable operator does not

voluntarily adopt and enforce such a policy, required it to block

all leased access programming that falls within the FCC’s

definition of “indecent programming.” Pet. App. 171a-72a. The

regulations further provide that a cable operator may delay for up

to thirty days satisfying a subscriber's request to receive the

blocked programming and that the subscriber’s request must be

made in writing. Pet. App. 171a.

The First Report and Order also required leased access

programmers to identify whether any of their programming Is

indecent and to certify at the operator’s request whether their

programming is indecent or obscene. If a programmer fails to

provide this identification or certification in a timely fashion or

if a cable operator believes a programmer has certified

incorrectly, the cable operator is not required to provide any

access at all to that programmer. Pet. App. 17 1a-72a. Disputes

brought by a cable operator over programming that it “reasonably

believes” to be indecent but which the programmer did not

identify as “indecent” are to be resolved by the FCC; consumer

complaints about “indecency” — but not about censorship — on

leased access channels shall also be resolved by the agency. Pet.

App. 166a-68a.

On April 2, 1993, the FCC released its Second Report and

Order, which adopted regulations to implement section 10(c)

relating to PEG access channels. In the Second Report and

Order, the FCC interpreted section 10(c) to authorize cable

operators to prohibit obscene material, indecent material (defined

as in the First Report and Order, rather than as section 10(c)’s

“sexually explicit material”), and material soliciting or promoting

unlawful conduct (interpreted by the FCC as “material that is

otherwise proscribed by law”). Pet. App. 197a-98a. To further

facilitate censorship of access programming by cable operators,

the FCC added a provision that allows a cable operator to require

a PEG access programmer “to certify that its programming does

not contain any of the materials” subject to prohibition under

section 10(c). Pet. App. 198a.

4. Petitioners directly petitioned the Court of Appeals for the

District of Columbia Circuit for review of the First Report and

Order pursuant to 28 U.S.C. § 2342(1), and petitioner ACLU

petitioned the court of appeals for review of the Second Report

and Order. These petitions were consolidated with two others

also seeking review of these FCC regulations and challenging the

constitutionality of section 10. The FCC and the United States

(collectively the “government”) were the respondents in all four

actions.

On November 23, 1993 — after oral argument during which

the government conceded that, if sections 10(a) and (c) involved

“state action,” they would be constitutionally invalid under the

First Amendment, Pet. App. 104a n.9 — a panel of the court of

appeals unanimously held that sections 10(a) and (c) violate the

Freedom of Speech Clause of the First Amendment. The panel

found that sections 10(a) and (c) amply involve governmental

action for purposes of the First and Fifth Amendments because

of their content-based regulatory objective, their significant

encouragement of private censorship, and their inevitable

censorship effect. Pet. App. 104a-08a. The panel then held the

FCC’s content-based regulations unconstitutional because they are

not the least restrictive means of furthering an asserted

compelling interest. Pet. App. 109a-lla. As to section 10(b)

and the FCC’s regulations, the panel found that they posed such

serious constitutional questions due to their apparent

underinclusiveness that on remand the FCC ought to reconsider

them in light of the panel’s opinion. Pet. App. 112a-25a.

The full court vacated the panel’s judgment, reheard the case

in banc, and on June 6, 1995 sustained section 10 and the FCC’s

regulations over the dissent in whole or in part of four of the full

court’s eleven judges. Pet. App. 4a-Sa.*

Writing for the majority, Judge Randolph concluded — in an

unprecedented holding — that portions of a content-based statute

regulating speech and the agency’s implementing regulations are

not subject to First Amendment scrutiny because they only

authorize, rather than command, private parties to ban a

governmentally defined category of protected speech and do not

significantly encourage cable operators to do so. Pet. App. | la-

27a. As to section 10(b), which compels blocking in the absence

of banning on leased access channels, the majority found —

despite the absence of any legislative record — that it was the

least restrictive means to serve the government’s “compelling”

interest in shielding minors from “indecent” speech. Pet. App.

32a-36a. Additionally, the majority found that section 10(b) does

not impermissibly discriminate against leased access speakers and

listeners (even though it leaves cable operators free to show on

other channels programming that they must block on leased

access channels), does not entail a prior restraint due to the thirty

day waiting period for unblocking (even though viewers will, as

a practical matter, be denied access to programs of protected

speech that they request), and is not impermissibly vague. Pet.

App. 36a-43a.

* Former-Chief Judge Mikva sat on the original panel, but retired before

the rehearing in banc.

In her dissenting opinion joined in full by Judge Tatel, Judge

Wald pointed out that sections 10(a) and (b) eeathe saultued

together as part of one scheme regulating leased access

programming, which, rather than “restore” editorial control to

cable operators, — them either to ban or block “indecent

programming, ind as such are clearly subject to First

Amendment scrutiny. Pet. App. 46a-53a. Moreover. Judge

Wald explained that, contrary to the majority's view, this is not

a case about whether cable operators should be regarded as state

actors when they censor indecent speech under section 10: rather.

this case challenges the statute and implementing regulations

themselves. Pet. App. 50a & n.4 (noting that the majority's

finding that cable operators’ acts of censorship under section 10

are not reviewable as state action does not thereby make section

10 itself immune from constitutional scrutiny).

Judge Waid, now also joined by Judge Rogers, then concluded

that Sections 10(a) and (b) unconstitutionally cause a deprivation

of First Amendment rights because of their undue burden on both

ee and oe ~ — and are not the least

means of achieving asserted c lling in

because of the ready availability of less ~rrher d we

the existing lockbox requirement, Pet. App. 66a-7la.

Additionally , Judge Wald found that section 10(c), with its

governmentally imposed definitions of “indecency” and “material

soliciting or promoting unlawf») conduct,” clearly constitutes

governmental action and is not the least restrictive means of

achieving the asserted compelling interest. Pet. App. 71a-75a.

Chief Judge Edwards dissented in part and found that sections

10(a) and (b), which must be read together, involve government

action (while section 10(c) does not) and that they work in

tandem to produce an impermissible ban on protected speech.

Pet. App. 77a-8ia. Chief Judge Edwards also questioned

whether the government's asserted interest of shielding minors

from “indecency was compelling. Pet. App. 82a-84a.

Judge Rogers, concurring in part and dissenting i

, ting in part, agreed

with Judges Wald and Tatel that section 10(b) is unconstitutional.

but argued that it is severable from sections 10(a) and (c), which

she, like the majority, perceived as merely “restoring editorial

control to cable operators, even though access channels are

governmental creations over which cable operators never had any

such control. Pet. App. 85a-88a.

REASONS FOR GRANTING THE WRIT

The petition should be granted because of the importance of

the issues raised in this case and because of the court of appeals

unprecedented treatment of these issues. This case challenges the

constitutionality of an integrated censorship scheme aimed at a

content-based and speaker-based category of protected speech,

devised by Congress, implemented by the FCC, and carried out

in part with the assistance of private parties.

Despite the egregiousness of this censorship scheme. the

majority brushed aside consideration of the scheme 's vagueness

and lack of essential procedural safeguards, inexplicably found

federal statutory provisions that target speech on the basis of

content not subject to constitutional scrutiny, and held that

segregation and automatic blocking of the censored speech is the

least restrictive means of achieving a compelling government

interest without any supporting congressional findings whatsoever

and in spite of extensive congressional findings | that this

governmental interest is already well-advanced by existing less-

restrictive federal regulation.

In reaching these conclusions in its bid to sustain section 10's

censorship scheme, the majority's decision conflicts with

applicable decisions of this Court concerning vagueness of

statutes regulating speech, e.g., Grayned v. City of Rockford, 408

U.S. 104 (1972), the due process requirements of statutes

banning speech, e.g., Freedman v. Maryland, 380 U.S. 51

(1965), the constitutional scrutiny of state action, ¢.g., Railway

Employees’ Dep't v. Hanson, 351 U.S. 225 (1956) and Skinner

v. Railway Labor Executives’ Ass'n, 489 U.S. 602 (1989), and

the strict requirements of content- and speaker-based statutes

seeking to ban speech, e.g., Sable Communications of California,

Inc. v. FCC, 492 U.S. 115 (1989).

The decision below also conflicts with decisions of other courts

of appeals concerning the heightened vagueness scrutiny afforded

Statutes regulating speech and directly conflicts with Altmann v.

Television Signal Corp., 849 F. Supp. 1335 (N.D. Cal. 1994),

which is a well-reasoned district court decision finding section

10’s censorship scheme unconstitutional.°

Finally, with the large and growing number of cable systems

across the nation, this case has added significance because of the

real risk that self-censorship by programmers and censorship by

cable operators will go unreviewed if the decision below is not

reversed and the stay that is now in effect is allowed to expire.

WHETHER SECTION 10 Is UNCONSTITUTIONALLY VAGUE

UNDER THE HEIGHTENED SCRUTINY REQUIRED FOR

STATUTES DIRECTED AT SPEECH AND LACKS ESSENTIAL

PROCEDURAL SAFEGUARDS ARE IMPORTANT ISSUES OF

FEDERAL LAW THAT SHOULD BE SETTLED BY THE COURT.

The Due Process Clause of the Fifth Amendment requires that

statutes and regulations not be so vague that affected parties are

uncertain as to what actions are proscribed and that government

officials have unbridled discretion in their enforcement decisions.

Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972):

Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).

This constitutional condemnation of vague laws applies with

Such a direct conflict between a court of appeals decision and a well-

reasoned district court decision has served as the basis for the grant of

a writ of certiorari. Massachusetts v. United States, 435 U.S. 444, 453

(1978); see also Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473,

477 n.3 (1981); Heffron v. International Soc'y for Krisha

Consciousness, 452 U.S. 640, 646 n.9 (1981): Calhoon v. Harvey, 379

U.S. 134, 137 (1964).

special force when First Amendment rights are at stake. Village

of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 499 (1982). Moreover, statutes banning certain speech must

include sufficient procedural safeguards “to obviate the dangers

of a censorship program.” Freedman v. Maryland, 380 U.S. 51,

58 (1965). Section 10 meets none of these standards.

In particular, section 10 is impermissibly vague for at least

three distinct reasons:

e The FCC has defined “indecent programming” as

programming that “describes or depicts sexual or excretory

activities or organs in a patently offensive manner as

measured by contemporary community standards.” Pet.

App. 172a (emphasis added).

access channels programming that they reasonably

believe[ J” is indecent. Pet. App. 126a (emphasis added).

¢ Congress authorized cable operators to ban from PEG

access channels programming that contains “material

soliciting or promoting unlawful conduct,” which the FCC

has defined as “material that is otherwise proscribed by

law.” Pet. App. 127a, 198a (emphasis added).

The FCC’s reference to “community standards” or what is

“patently offensive” is an entirely subjective standard that

provides no guidance to programmers — given the penalties for

guessing wrong — or check on the whim or caprice of cable

operators. The inevitable result of such vague terms Is that

arbitrary enforcement will be wide-spread: cable operators will

censor, and programmers will self-censor, important and valuable

programming — such as the offerings of DAETC on arts

censorship, safe sex, or gay rights — simply because it may have

some sexual content or vulgar words. See Grayned, 408 U.S. at

108-09.

Moreover, Congress’ use of the phrase “reasonably believes”

substantially augments section 10’s problems, because what cable

operators “reasonably believe” is indecent is a larger and even

vaguer Category than what actually is “indecent” (to the extent

that term has any meaning), resulting in the ban of non-

“indecent” speech and heightened arbitrariness and self-

censorship. See Bella Lewitzky Dance Found. v. Frohnmayer,

754 F. Supp. 774, 781-82 (C.D. Cal. 1991) (requirement that

artists Certify that none of their works may be considered obscene

in the NEA’s judgment is void for vagueness).°

Obscenity jurisprudence does not redeem the use of

“community standards” in the definition of indecency. Obscenity

deals only with “hard-core” pornography, Miller v. California,

413 U.S. 15, 27 (1973), which Justice Stewart memorably

described with the phrase “I knov. it when I see it,” Jacobellis v.

Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). By

contrast, “indecency” encompasses a broad and undefined

category that may well extend beyond even “soft-core”

pornography and that no member of this Court has ever suggested

is recognizable on sight. Additionally, the consideration of

“serious value” in obscenity jurisprudence, i.e., literary, artistic,

political, and scientific merit, allows speakers to make predictive

judgments and courts to develop over time substantive guidance

for both speakers and censors. See id. at 24. The FCC's

“indecency” definition allows for no such safe-predictions or

guidance.

* The sum of section 10’s chilling effect is exacerbated by the statutory

and regulatory certification requirements: the programmer must certify

whether any of its programming contains material that is “indecent”

under the FCC's definition, is indecent according to the cable

operator's “reasonable belief,” or is “otherwise proscribed by law.”

Pet. App. 172a, 198a. As this Court held in Baggett v. Bullitt, “[t}he

uncertain meanings of . . . oaths require the oath-taker . . . to ‘steer

far wider of the unlawful zone’ than if the boundaries of the forbidden

areas were clearly marked.” 377 U.S. 360, 372 (1964) (quoting

Speiser v. Randall, 357 U.S. 513, 526 (1958)) (citation omitted): see

Bella Lewitzky, 754 F. Supp. at 782-83.

Clearly, the overall result of section 10’s multiple vagueness

problems is harmful self-censorship by artists and other

programmers and unbridled discretion vested in the FCC and its

cable operator delegates to censor where programmers do not

self-censor. This Court has repeatedly condemned vague laws for

precisely these reasons. E.g., City of Lakewood v. Plain Dealer

Publishing Co., 486 U.S. 750, 757-58 (1988); Cramp v. Board

of Public Instruction, 368 U.S. 278, 283-84 (1961).

Equally inconsistent with what three decades of First and Fifth

Amendment cases have required is the lack of essential

procedural safeguards accompanying Congress’ joint censorship

enterprise with cable operators; safeguards that are mandated “to

obviate the dangers of [section 10’s] censorship program.”

Freedman v. Maryland, 380 U.S. at 58. Section 10 and the

FCC’s implementing regulations provide no _ procedural

safeguards whatsoever. See Pet. App. 126a-27a, 171a-73a, 197a-

98a. Indeed, in the discussion portion of the First Report and

Order, the FCC states, that it “do[es] not envision disputes arising

{under sections 10(a) and (b)] except where a program, not

identified by a program provider as indecent, is carried on a non-

blocked leased channel, and is alleged to be indecent” by the

cable operator or a subscriber; in such cases, the FCC states that

it will entertain special relief petitions from the cable operator or

the complaining subscriber. Pet. App. 167a-68a.

This is not the type of “safeguard” required by the Due

Process Clause in the First Amendment censorship context: prior

procedural mechanisms to protect the speaker being censored,

with, at a minimum, provisions for prompt judicial review

initiated by the censor, who must bear the burden of proof.

Freedman v. Maryland, 380 U.S. at 58-59; Southeastern

Promotions, Lid. v. Conrad, 420 U.S. 546, 560 (1975). The

FCC’s statement (even if it were binding) provides no such prior

procedural safeguards to protect programmers from uncontrolled

censorship; rather, it serves only to give further procedural power

to censoring cable operators.’

In response to these concerns, the court of appeals held in a

one-page discussion that Petitioners’ vagueness arguments are

foreclosed because the FCC will resolve any conflicts as to what

is “indecent” programming, and because prior decisions — Action

for Children’s Television v. FCC, 852 F.2d 1332, 1338-39 (D.C.

Cir. 1988) (“ACT I”), and Action for Children’s Television v.

FCC, 932 F.2d 1504, 1507-08 (D.C. Cir. 1991), cert. denied,

503 U.S. 913 (1992) (“ACT II”) — had decided that any

vagueness challenge was foreclosed by FCC v. Pacifica

Communications Comm'n, 438 U.S. 726 (1978). Pet. App. 42a-

43a.*

The holding that Pacifica disposes of Petitioners’ vagueness

challenge is in conflict with all the cases cited above at 11-14.

Pacifica did not overrule the principles approved in those cases

and, indeed, did not address the vagueness of the FCC's

Section 10’s vagueness and due process deficiencies are further

illustrated by analogy to a series of decisions striking down statutes that

delegated governmentally enforceable censorship standards to the

private motion picture industry rating system. National Ass'n of

Theatre Owners v. Motion Picture Comm'n, 328 F. Supp. 6(E.D. Wis.

1971); Engdahl v. City of Kenosha, 317 F. Supp. 1133 (E.D. Wis.

1970); Motion Picture Ass'n of Am. v. Specter, 315 F. Supp. 824 (E.D.

Pa. 1970). These courts consistently held that governmental delegation

to private groups of the power to evaluate and label films for purposes

of establishing censorship standards enforceable by law violates the

most fundamental principles of due process. Here, similarly, the

government has defined — albeit vaguely — the content of the material

it wishes to see censored, has delegated the application of the standard

in the first instance to private parties, and has given them every

encouragement to censor; all without any clear boundaries or

procedural safeguards.

* The court of appeals reached this issue only as to section 10(b),

inexplicably concluding that the remainder of the statute was not state

action to which constitutional scrutiny applied. See, below, point II.

indecency definition. Moreover, it certainly did not deal with a

statute involving the added phrase “reasonably believes” or with

the delegation to private censors of the duty to decide (with no

semblance of due process safeguards) what falls under a

governmentally defined standard. As for section 10(c), Pacifica

would not control even if it had decided the vagueness question,

because section 10(c) deals with the distinct — and completely

vague — category of material that “solicit{[s] or promot{es]

unlawful conduct,” rewritten by the FCC to mean material

“otherwise proscribed by law.”

Additionally, the majority did not consider the vagueness of

section 10 under the heightened scrutiny required of statutes

impacting speech. This refusal conflicts with applicable decisions

of other courts of appeals. E.g., Video Software Dealers Ass'n

v. Webster, 968 F.2d 684, 690 (8th Cir. 1992) (emphasizing the

importance of heightened vagueness scrutiny and striking down

a Statute regulating the sale of “violent” videos); Shamloo v.

Mississippi State Bd., 620 F.2d 516, 523-24 (Sth Cir. 1980)

(applying a heightened scrutiny to a statute’s use of the term

“wholesome” ).

The Pacifica Court's self-described narrow, plurality, as-

applied decision that the FCC’s “indecency” definition could be

retrospectively applied to seven “dirty” words is not authority for

upholding (as the court below did) a delegation to private parties

— with their own self-interests at heart — of the power to censor

anything that they “reasonably believe” to be indecent.’

In short, the court of appeals far too casually swept aside an

important issue that merits being settled by the Court.

* Moreover, the court in ACT / was notably tentative in describing

Pacifica’s “implicit” resolution of the vagueness issue and

“welcome[d]” correction from “Higher Authority.” 852 F.2d at t339

(Ginsburg, J.). With Congress increasingly considering “indecency”

as a censorship standard, it is time for the Court to accept now-Justice

Ginsburg’s invitation.

Il.

WHETHER CONTENT-BASED AND SPEAKER-BASED FEDERAL

STATUTORY PROVISIONS AIMED AT SPEECH CAN BE

IMMUNE FROM CONSTITUTIONAL SCRUTINY SIMPLY

BECAUSE THEY DELEGATE CENSORSHIP DETERMINATIONS IN

PART TO PRIVATE PARTIES IS AN IMPORTANT ISSUE OF

FEDERAL LAW THAT SHOULD BE SETTLED BY THE COURT.

Where Congress seeks to regulate protected speech on the

basis of its content or only if uttered by certain speakers, its

regulation is subject to strict scrutiny and will be upheld — if at

all — only if the government shows that the regulation is

narrowly tailored and the least restrictive means of ad\ cing a

compelling interest. Sable Communications of California, Inc. v.

FCC, 492 U.S. 115, 126 (1989).

Because it regulates only “indecent prograrmming”™ on leased

and PEG access cable channels, section 10 is both content- and

speaker-based. Moreover, section 10’s censorship scheme

undeniably extends to speech containing significant literary,

artistic, political, or scientific value that is fully protected under

the First Amendment. /d.

The government has conceded that sections 10(a) and (c)

would be unconstitutional if strict scrutiny applied and does not

contest that section 10(b) is subject to strict scrutiny; propositions

that the court of appeals accepted. Pet. App. lla, 32a; see id.

104a n.9. However, focusing incorrectly on future censorship

actions of cable operators rather than on section 10 itself, the

government argued that any acts of censorship by cable operators

are not attributable to the state and, therefore, because the

Constitution does not constrain private parties and because

sections 10(a) and (c) merely “restore” cable operators’ editorial

control by giving them authority to ban “indecent programming, ”

sections 10(a) and (c) are not subject to strict scrutiny. The

majority agreed with this analysis and conclusion. Pet. App.

22a-23a.

That approach, however, asks the wrong question and supplies

the wrong answer. Cf. Lebron v. National R.R. Passenger

Corp., 115 S. Ct. 961, 965 (1995). As explained by Judge

Wald, this is not a case about whether cable operators should be

regarded as state actors with respect to particular censorship

decisions; rather, this case challenges the statute and

implementing regulations themselves, which delegate to cable

operators the power to “ban” a category of speech based upon its

content; a power that they did not enjoy with respect to access

programming prior to section 10’s enactment and still do not

enjoy as far as any other category of access speech is concerned.

Pet. App. 50a & n.4 (Wald, J., dissenting).

The court of appeals’ unprecedented holding that sections 10(a)

and (c) are not subject to constitutional scrutiny should be

reviewed by the Court for two reasons: first, the loophole it

creates would allow Congress to regulate free from the confines

of the Constitution; second, it derogates from well-established,

applicable decisions of this Court making clear that duly enacted

legislation is always “state action” that must operate within

constitutional bounds.

In section 10, Congress and the FCC defined a category of

speech on cable according to its content (“indecent

programming”), singled that category out for special adverse

treatment (banning, blocking, certification), and limited that

treatment to only certain producers of that category of speech

(cable access programmers). Further, the FCC has undertaken

to resolve certain disputes between and among cable operators,

programmers, and subscribers over the proper application of its

definition of “indecency.” Pet. App. 166a-68a. Notably, as to

leased access programming, Congress has required — not just

authorized — cable operators to suppress indecent programming:

if they do not ban this speech pursuant to section 10(a), they must

block it pursuant to section 10(b).

Congress has created this scheme — so precisely targeted to

one solitary form of congressionally disfavored speech that 't

cannot possibly be termed simply the “restoration” of editorial

contro! — yet the court of appeals held that sections 10(a) and (c)

are not subject to First Amendment scrutiny because any resulting

censorship is delegated in the first instance to private parties.

The court of appeals’ rationale is equally applicable to other

subjects of regulation, such as those that are otherwise subject to

the Equal Protection Clause or the Takings Clause, but which

may now avoid such constraints as long as the actual adverse

treatment is at all conditional on a private party. Apparently, a

statute authorizing private parties to destroy printing presses of

publishers of some political stripe, or privileging persons to

assault persons of color, would escape constitutional scrutiny

under the same reasoning.

The court of appeals’ holding is flatly in conflict with all

applicable decisions of this Court.'® First, no statute has ever

been held not “state action.” As Professor Tribe has noted, “[i]f

litigants challenge a federal or state statute . . . in a case where

the validity of the statute is necessarily implicated, state action is

obvious, and no formal inquiry into the matter is needed.”

Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAw § 18-1 at

1688 (2d ed. 1988).

Second, the court of appeals ignored Railway Employees’ Dep't

v. Hanson, 351 U.S. 225 (1956), which was brought to the

court’s attention by Petitioners but not even mentioned in the

majority’s opinion. As described in Hanson, the Railway Labor

Act initially prohibited private railroads and unions from entering

into privately bargained “union shop agreements,” but was later

amended to authorize affirmatively such agreements, thereby

“restoring” private power. The Court held that, although this

revised statutory provision was only permissive and did not

‘© Additionally, the decision below is directly contrary in findings and

result to the well-reasoned decision in Altmann, 849 F. Supp. 1335,

which considered sections 10(a) and (c) to be state action and struck

them down.

compel action, it was nonetheless subject to First Amendment

scrutiny because

the federal statute is the source of the power and

authority by which any private rights are lost or

sacrificed. The enactment of the federal statute

authorizing union shop agreements is_ the

governmental action on which the Constitution

operates, though it takes a private agreement to

invoke the federal sanction.

Id. at 231-32 (footmote and citations omitted). The court of

appeals’ holding is directly contrary to that of the Court in

Hanson.

Third, sections 10(a) and (b) establish a comprehensive scheme

to censor “indecency” on leased access channels with private

cable operators and the FCC playing interlocking roles: the FCC

defines indecency, resolves certain disputes over its application,

and prescribes blocking and segregation requirements, while the

cable operators determine what programming falls within their

“reasonable belief” of indecency and decide whether to ban or

block such programming. Such a joint enterprise between

government and private actors is subject to constitutional

scrutiny. See Dennis v. Sparks, 449 U.S. 24, 27-28 (1980);

Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).

Similarly, the court of appeals’ holding directly contradicts

Skinner v. Railway Labor Executives’ Ass'n, 489 U.S. 602, 615

(1989), which specifically held that private drug tests permitted

but not compelled by statute gave rise to Fourth Amendment

scrutiny because, as in the present case, “the Government did

more than adopt a passive position towards the underlying

conduct.” The court of appeals completely ignored this ruling in

Skinner, as well."'

'' The in banc majority's opinion also conflicts with a number of this

Court's other cases applying the “state action” doctrine — including the

(continued. ..)

Ill.

WHETHER SECTION 10(B) VIOLATES THE FIRST AMENDMENT

AS NOT THE LEAST RESTRICTIVE MEANS TO ACHIEVE A

COMPELLING GOVERNMENT INTEREST AND AS UNJUST-

IFIABLY UNDERINCLUSIVE IS AN IMPORTANT ISSUE OF

FEDERAL LAW THAT SHOULD BE SETTLED BY THE COURT.

A statute or regulation that imposes content-based restrictions

on protected speech must be found unconstitutional either if it is

unjustifiably underinclusive or not narrowly drawn and carefully

tailored or if the government fails to prove that it is the least

restrictive means of achieving a compelling governmental

interest. Sable, 492 U.S. at 126."

Section 10(b) requires cable operators to block all speech on

leased access channels that programmers have identified as falling

within the definition of “indecent programming,” and which cable

operators have not outright banned under section 10(a) (or which

programmers have not already self-censored). As such, it is a

‘(.. continued)

“significant encouragement” test of Blum v. Yaretsky, 457 U.S. 991,

1004 (1982), and the warning in Norwood v. Harrison, 413 U.S. 455,

465 (1973) (Burger, C.J.), that “‘a state may not induce, encourage or

promote private persons to accomplish what it is constitutionally

forbidden to accomplish’” — as well as with this Court’s jurisprudence

on the regulation of speech in “public fora,” which Congress, the FCC,

and the courts have repeatedly characterized access cable channels as

being.

~ As noted by Chief Judge Edwards in disagreement with the majority,

speech on cable is not subject to the lesser First Amendment scrutiny

sometimes afforded broadcast speech. Pet. App. 8la-82a (Edwards,

C.J., dissenting) (citing Turner Broadcasting Sys., Inc. v. FCC, 114

S. Ct. 2445, 2456 (1994)).

content-based restriction on protected speech subject to the

underinclusiveness and strict-scrutiny tests."

Section 10(b) is unjustifiably underinclusive because it only

blocks “indecent programming” on leased access cable channels,

without also regulating “indecent programming” on commercial

cable channels. This results in allowing cable operators to

cablecast on their own unblocked commercial channels their own

“indecent programming” (that would be subject to blocking if it

were designated for leased access channels) and even the very

same “indecent programming” that they banned or blocked from

the regular leased access channels.

In other similar situations, this Court has held such

underinclusive, speaker-based discrimination unconstitutional

because it did not substantially advance the government’s asserted

interest or because the statutory distinctions were not justified by

necessity. Florida Star v. B.J.F., 491 U.S. 524 (1989) (statute

prohibiting publication of rape victim’s name only applied to

instruments of mass communication); FCC v. League of Women

Voters, 468 U.S. 364 (1984) (statute prohibiting speech by

noncommercial educational broadcasting stations only applied to

“editorializing”); First Nat'l Bank v. Bellotti, 435 U.S. 765

(1978) (statute prohibiting corporations from paying for

publicizing opinions only applied to banks and their views on a

State income tax amendment).

Nonetheless, on this important issue, the court of appeals ruled

that section 10(b) is not underinclusive — relying on the

“Congress may take one step at a time” approach that this Court

has consistently held not applicable in the First Amendment realm

— and did not require the distinction made by the statute to be

The government conceded that, if its state action argument were not

accepted, sections 10(a) and (c) should be found unconstitutional. Pet.

App. 104an.9. Even had it not so conceded, these sections are clearly

unconstitutional because they effect a total ban on speech, which is

even further from being the least restrictive means than is section 10(b).

Sable, 492 U.S. at 127.

justified as necessary. Compare Pet. App. 39a-40a with Arkansas

Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987)

(interest in taxation does not justify content-based differential

incidence of tax); Carey v. Brown, 447 U.S. 455, 465 (1980)

(interest in lowering noise level did not justify differential

treatment of labor picketing from non-labor picketing).

Additionally, the government has not borne its burden of

proving that section 10(b) is the least restrictive means to achieve

any compelling governmental interest.’ Since 1984, Congress

has mandated that cable operators provide a “lockbox” to every

subscriber, 47 U.S.C. § 544(d)(2), having found during lengthy

committee hearings and floor discussions that lockboxes are a

very effective and efficient means of individually regulating what

is viewable in one’s own home, e.g., H.R. REP. No. 934. 98th

Cong., 2d Sess. 70 (1984).'° There is no demonstration in

section 10's legislative history — indeed, there are no

congressional findings as to section 10 at all — that lockboxes are

no longer a sufficient means of meeting any asserted compelling

governmental interest underlying section 10 or otherwise.

Moreover, section 10(b) requires subscribers who want to

continue to have access to this category of governmentally

* Even assuming that the government's asserted interest behind section

10 is “compelling,” an issue on which Chief Judge Edwards has

expressed doubts which Petitioners share, see Pet. App. 82a-84a

(Edwards, C.J., dissenting), there was certainly no showing

demonstrated in the congressional findings of harm to minors from

possible exposure to a vaguely defined category of “indecent” speech.

” Lockboxes allow a subscriber to block and unblock any channel at any

time, generally by programming their lockbox and using a numerical

code or mechanical lock that the subscriber controls. Pet. App. 36a.

By contrast, the segregation and blocking requirement of section |((b)

forces the targeted speech to be placed on a separate channel that is

automatically blocked by the cable operator; a subscriber may view

programming on that channel only if a request is made in writing and

only after the operator complies with that request, for which it has

thirty days.

24 25

largeted and disfavored speech t0 so request affirmatively and in CONCLUSION

Writing. Even assuming that it is Necessary or 4PPropriate to

segregate some, but not all, “indecent” Programming On a For al] the foregoing reasons the Petition for writ Of certiorar;

Specific channel, the burden should be on those who want to Should be granteq

block access to constitutionally Protected speech rather than on |

those who Seek access to a. Cf Lamont ¥. Postmaster Respectfully Submitted.

neral, 381 U.S 301, 306-07 (1965) (public “Is likely to fee] .

some inhibition jin sending for literature Which federa| Officials STEVEN R. SHap TRO CHARLES S$. Sings

have condemned” ). In any event, the First Amendment cannot MARUORIE HEINs a Counsel of Record

tolerate Making Subscribers wait for up to thirty days for Amer tean Civil Liber lies PETER JW. SHERWIN

unblocking, py which time any Programs that led to the Union Foundation Proskauer Rose Goetz

unblocking request Will have been Missed. 132 West 43¢ Street & Mendelsohn LLP

ree) . | New York. New York 10036 1585 Broadway

Nonetheless. with little analysis and complete Silence on the (212) 944-9809 New York, New York 1003 6

First Amendment rights of adults and older Minors, the court of > :

: (212) 969 3000

4ppeals held thar Section 10(b)’s total blocking Of “indecent 7

Programming” on leased access Channels was the least restrictive Counsel for Petitioners

means of achieving the asserted “compelling interest. Per App.

36a. New York, New York

July 18 995

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 93-1169 September Term, 1994

Alliance for Community Media, et al.,

Petitioners

Federal Communications Commission

and United States of America,

Respondents

and consolidated cases

BEFORE: Edwards, Chief Judge, Wald, Silberman,

Buckley, Williams, Ginsburg, Sentelle, Henderson,

Randolph, Rogers and Tatel, Circuit Judges

ORDER

Upon consideration of the Motion to Stay Issuance of In

Banc Court’s Mandate pending the filing of a Petition for Writ of

Certiorari in the United States Supreme Court, it is

ORDERED, by the Court in banc, that the motion is

granted and the Clerk is directed to withhold issuance of the court's

mandate for a period of thirty days from the date of this order.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Robert A. Bonner

Deputy Clerk

Filed July 10, 1995

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued /n Banc October 19, 1994 Decided June 6, 1995

No. 93-1169

ALLIANCE FOR COMMUNITY MEDIA;

ALLIANCE FOR COMMUNICATIONS DEMOCRACY;

PEOPLE FOR THE AMERICAN WAY,

PETITIONERS

FEDERAL COMMUNICATIONS COMMISSION;

UNITED STATES OF AMERICA,

RESPONDENTS

NEW YORK CITIZENS COMMITTEE FOR RESPONSIBLE

MEDIA; MEDIA ACCESS NEW YORK; BROOKLYN

PRODUCERS’ GROUP; DAVID CHANNON; NATIONAL

CABLE TELEVISION ASSOCIATION, INC.,

INTERVENORS

No. 93-1171

DENVER AREA EDUCATIONAL

TELECOMMUNICATIONS CONSORTIUM, INC.;

AMERICAN CIVIL LIBERTIES UNION,

PETITIONERS

FEDERAL COMMUNICATIONS COMMISSION:

UNITED STATES OF AMERICA,

RESPONDENTS

NEW YORK CITIZENS COMMITTEE FOR RESPONSIBLE

MEDIA; MEDIA ACCESS NEW YORK; BROOKLYN

PRODUCERS’ GROUP; DAVID CHANNON; NATIONAL

CABLE TELEVISION ASSOCIATION, INC.,

INTERVENORS

No. 93-1270

ALLIANCE FOR COMMUNITY MEDIA:

ALLIANCE FOR COMMUNICATIONS DEMOCRACY:

PEOPLE FOR THE AMERICAN WAY,

PETITIONERS

FEDERAL COMMUNICATIONS COMMISSION:

UNITED STATES OF AMERICA,

RESPONDENTS

NEW YORK CITIZENS COMMITTEE FOR RESPONSIBLE

MEDIA; MEDIA ACCESS NEW YORK: BROOKLYN

PRODUCERS’ GROUP; DAVID CHANNON: NATIONAL

CABLE TELEVISION ASSOCIATION, INC..

INTERVENORS

No. 93-1276

AMERICAN CIVIL LIBERTIES UNION,

PETITIONER

FEDERAL COMMUNICATIONS COMMISSION:

UNITED STATES OF AMERICA,

RESPONDENTS

NEW YORK CITIZENS COMMITTEE FOR RESPONSIBLE

MEDIA; MEDIA ACCESS NEW YORK: BROOKLYN

PRODUCERS’ GROUP; DAVID CHANNON: NATIONAL

CABLE TELEVISION ASSOCIATION, INC..

INTERVENORS

Petitions for Review of Orders of the

Federal Communications Commission

I. Michael Greenberger argued the cause for petitioners. With

him on the briefs were Charles S. Sims, Lisolette E. Mitz, Marjorie

Heins and Arthur B. Spitzer for petitioners Denver Area Educational

Telecommunications Consortium, Inc. and the American Civil

Liberties Union, David A. Bono, Michael K. Isenman and David B.

Goodhand for petitioners the Alliance for Community Media, the

Alliance for Communications Democracy, and People for the

American Way, James N. Horwood for petitioners the Alliance for

Community Media and the Alliance for Communications

Democracy, Andrew J. Schwartzman and Elliot Mincberg tor

petitioner People for the American Way.

Jacob M. Lewis, Attorney, Department of Justice, argued the

cause for respondents. With him on the brief were Frank W.

Hunger, Assistant Attorney General, and Barbara L. Herwig,

Attorney, Department of Justice, William E. Kennard, General

Counsel, Christopher J. Wright, Deputy General Counsel, Daniel

M. Armstrong, Associate General Counsel, and Gregory M.

Christopher, Counsel, Federal Communications Commission.

Robert T. Perry was on the brief for intervenors New York

Citizens Committee for Responsible Media, Media Access New

York, Brooklyn Producers’ Group, and David Channon. Daniel L.

Brenner, Neal M. Goldberg and Diane B. Burstein were on the brief

for intervenor National Cable Television Association, Inc. H.

Robert Showers was on the joint brief for amici curiae National

Law Center for Children and Families. With him on the joint brief

were James P. Mueller for National Family Legal Foundation and

Pau: McGeady for Morality in Media, Inc.

Before: EDWARDS, Chief Judge, WALD, SILBERMAN,

BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON,

RANDOLPH, ROGERS, and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge WALD, in which

Circuit Judge TATEL joins and Circuit Judge ROGERS joins as to

Parts II and III.

Opinion dissenting in part filed by Chief Judge EDWARDS.

Opinion concurring in part and dissenting in part

Circuit Judge ROGERS. —_—

RANDOLPH, Circuit Judge: This case is here on petitions for

review of two orders of the Federal Communications Commission

implementing section 10 of the Cable Television Consumer

Protection and Competition Act of 1992, Pub. L. No. 102-385. 106

Stat. 1460, 1486 (to be codified at 47 U.S.C. §§ 531, 532(h)

532(j), & 558). Petitioners are five organizations, some of whose

members produce programming for cable “access” channels: an

individual “access” programmer; and two other groups whose

members watch cable television. The case was argued first to a

panel of the court, which remanded it to the Commission on the

grounds that sections 10(a) and 10(c) violated the freedom of speech

clause of the First Amendment to the Constitution and that section

10(b), and the Commission’s regulations thereunder, posed such

serious constitutional questions that the Commission ought to

reconsider the matter in light of the unconstitutionality of sections

10(a) and 10(c). Alliance for Community Media v. FCC, 10 F.3d

812, 823-24, 829 (D.C. Cir.1993). The full court vacated the

panel’s judgment. Alliance for Community Media v. FCC, 15 F.3d

186 (D.C. Cir.1994). On rehearing the case in banc, we sustain

section 10 and the Commission's regulations.

The Commission gradually began asserting jurisdiction over a

form of cable television — community antenna television systems

— in the early 1960’s. Through that decade and into the next, the

pace of regulation intensified. By 1980, however, the trend had

reversed itself. The cable industry experienced substantial federal

deregulation, driven in no small measure by the Supreme Court’s

decision in FCC v. Midwest Video Corp., 440 U.S. 689 (1979)

The Court there struck down, as beyond the Commission’s statutory

authority over broadcasting, its 1972 rules (as modified by its 1976

rules) requiring cable operators to dedicate four of their “channels

for public, governmental, educational, and leased access.” Jd. at

691. Cable operators “own the physical cable network and transmit

the cable signal to the viewer.” Turner Broadcasting Sys., Inc. v.

FCC, 114 S. Ct. 2445, 2452 (1994). By “transferr[ing] control of

the content of access cable channels from cable operators to

members of the public,” the Commission had — the Court held in

Midwest Video — transformed cable operators into “common

carriers.” 440 U.S. at 700, 701. Congress had prohibited the

Commission from imposing common-carrier obligations on

broadcasters because this would intrude on their editorial control

over programming. Jd. at 705. Cable operators were situated

similarly. They shared “with broadcasters a significant amount of

editorial discretion regarding what their programming will include,”

and, like broadcasters, could not be burdened with common carrier

obligations without Congress’ express direction. /d. at 707, 709.

The Cable Communications Policy Act of 1984 revived much

of the agency-created system struck down five years earlier in

Midwest Video. The 1984 Act compelled cable operators of

systems with more than thirty-six channels to set aside between 10

and 15 percent of their channels for commercial use by persons

unaffiliated with the operator. 47 U.S.C. § 532(b). On these

“leased access” channels, the statute forbade the operator from

exercising “any editorial control over” the programming, “except

that an operator may consider such content to the minimum extent

necessary to establish a reasonable price” for the use of the channel.

47 U.S.C. § 532(c)(2). In return, the 1984 Act exempted operators

from criminal and civil liability arising from programs carried on

leased access channels. 47 U.S.C. § 558 (amended 1992). While

thus removing the operators’ control over and legal responsibility

for leased access programming, the 1984 Act empowered local

franchising authorities to bar or regulate such programming if, in

the authority’s judgment, it “is obscene, or is in conflict with

community standards in that it is lewd, lascivious, filthy, or

indecent or is otherwise unprotected by the Constitution of the

United States.” 47 U.S.C. § 532(h).

The 1984 Act also authorized local franchising authorities to

require, as a condition for a franchise or for the renewal of one,

that operators set aside “channel capacity” for “public, educational,

or governmental use.” 47 U.S.C. § 531. Subject to section

544(d), cable operators were forbidden from exercising any editorial

control over prograraming shown on these “PEG access” channels.

47 U.S.C. § 531(e) (amended 1992). Section 544(d)(1) permitted

cable operators and franchise authorities to specify that cable

services would not be provided if they are “obscene or are

otherwise unprotected by the Constitution.” As with leased access,

section 558 of the 1984 Act relieved cable operators from criminal

and civil liability for programs carried on PEG channels.

In “order to restrict the viewing of programming which is

obscene or indecent, upon the request of a subscriber,” section

544(d)(2) required cable operators to provide equipment —

commonly known as a “lockbox” — enabling the subscriber to

block a channel during particular periods. 47 U.S.C. § 544(d).

In 1992, for reasons we describe below, see infra pp. 19-20,

Congress decided that revisions were needed in the 1984 Act’s

treatment of leased access and PEG access channels. Section 10 of

the Cable Television Consumer Protection and Competition Act of

1992, which is set forth in the margin,' altered the existing system

Leased Access Channels

(a) Authority to Enforce. — Section 612(h) of the

Communications Act of 1934 (47 U.S.C. 532(h)) is amended —

(1) by imserting “or the cable operator” after “franchising

authority”; and

(2) by adding at the end thereof the following: “This subsection

shall permit a cable operator to enforce prospectively a written

and published policy of prohibiting programming that the cable

operator reasonably believes describes or depicts sexual or

excretory activities or organs in a patently offensive manner as

measured by contemporary community standards. ”.

(b) Commission Regulations. — Section 612 of the

Communications Act of 1934 (47 U.S.C. 532) is amended by inserting

after subsection (i) (as added by section 9(c) of this Act) the following

(continued. ..)

in several ways. Section 10(a) permitted a cable operator to refuse

'(.. continued)

new subsection:

“(j)(1) Within 120 days following the date of the enactment

of this subsection, the Commission shall promulgate regulations

designed to limit the access of children to indecent programming,

as defined by Commission regulations, and which cable operators

have not voluntarily prohibited under subsection (h) by —

“(A) requiring cable operators to place on a single

channel all indecent programs, as identified by program

providers, intended for carriage on channels designated for

commercial use under this section;

“(B) requiring cable operators to block such single

channel unless the subscriber requests access to such channel

in writing; and

“(C) requiring programmers to inform cable operators if

the program would be indecent as defined by Commission

regulations.

“(2) Cable operators shall comply with the regulations

promulgated pursuant to paragraph (1).”.

of the enactment of this Act, the Federal Communications

Commission shall promulgate such regulations as may be necessary to

enable a cable operator of a cable system to prohibit the use, on such

system, of any channel capacity of any public, educational, or

governmental access facility for any programming which contains

obscene material, sexually explicit conduct, or material soliciting or

promoting unlawful conduct.

(d) Conforming Amendment. — Section 638 of the

Communications Act of 1934 (47 U.S.C. 558) is amended by striking

the period at the end and inserting the following: “unless the program

involves obscene material.” .

Cable Television Consumer Protection and Competition Act of 1992,

Pub.L. No. 102-385, § 10, 106 Stat. 1460, 1486 (1992) (codified at 47

U.S.C. §§ 531, 532(h), 5324) & 558).

— | ——

to carry leased access programming the operator “reasonably

believes describes or depicts sexual or excretory activities or organs

in a patently offensive manner as measured by contemporary

community standards.” Pub. L. No. 102-385, § 10(a), 106 Stat.

1460, 1486 (1992) (to be codified at 47 U.S.C. § 532(h)). In order

“to limit the access of children to indecent programming,” section

10(b) directed the Commission to prescribe rules requiring cable

operators who choose to carry indecent programming on leased

access channels to place such programs on a separate channel and

to block the channel until the subscriber, in writing, requests

unblocking. Id. § 10(b) (to be codified at 47 U.S.C. § 532(j)).

Section 10(c) required the Commission to promulgate regulations

enabling cable operators to prohibit the use of PEG access channels

for “any programming which contains obscene material, sexually

explicit conduct, or material soliciting or promoting unlawful

conduct.” Jd. § 10(c) (to be codified at 47 U.S.C. § 531). Section

10(d) eliminated cable operators’ immunity from criminal and civil

liability for obscene programming shown on access channels Id

§ 10(d) (to be codified at 47 U.S.C. § 558).

In early 1993, the Commission released two Reports and Orders

adopting Tegulations to implement section 10. In the first, the

Commission issued regulations implementing sections 10(a) and

10(b), the provisions applying to leased access channels. The

Commission defined “indecent” programming in terms nearly

identical to those contained in the statute: “programming that

describes or depicts sexual or excretory activities or organs in a

patently offensive manner as measured by contemporary community

standards for the cable medium.” /mplementation of Section 10 of

the Cable Consumer Protection and Competition Act of 1992, 58

Fed. Reg. 7990, 7993 (1993) (to be codified at 47 C.F.R.

§ 76 701(g)). Leased access programmers were required to inform

the cable operator which, if any, of their programs fell into that

category. Id. (to be codified at 47 C.F_.R. § 76.701(d)). Mirroring

the statute, the regulations authorized private cable operators to

refuse to carry indecent programming on leased access channels. or,

if they decided to do so, to segregate that material on a blocked

channel. /d. (to be codified at 47 C_F_R. § 76.701(a)). A cable

10a

operator must satisfy a subscriber's written request to receive a

blocked channel within thirty days. /d. (to be codified at 47 C.F.R.

§ 76.701(c)).’

The Commission's second Report and Order contained

regulations implementing section 10(c), which applies to PEG

access channels. These regulations authorized cable operators to

prohibit programming on PEG access channels if it “contains

obscene material, indecent material . . . , or material soliciting or

promoting unlawful conduct.”’ /mplementation of Section 10 of the

Cable Consumer Protection and Competition Act of 1992, 58 Fed.

Reg. 19,623, 19,626 (1993) (to be codified at 47 C.F.R. § 76.702).

With respect to leased access channels, the 1992 Act also directed the

Commission to determine the maximum reasonable rates for leased access

use, to establish reasonable terms and conditions for such use, including

those for billing and collection, and to create procedures for expedited

resolution of rate or carriage disputes. Pub. L. No. 102-385, § 9, 106

Stat. 1460, 1484-86 (1992) (codified at 47 U.S.C. § 532(¢X4)A)i)-{iii)).

The 1984 Act had permitted operators to negotiate with programmers the

prices and terms for leased access. DANIEL L. BRENNER, ET AL.. CABLE

TELEVISION AND OTHER NONBROADCAST VIDEO § 6.05, at 6-50, 6-57

(1994). For PEG access programming, the 1984 Act authorized local

franchising authorities to determine minimum PEG requirements, including

allocation of channel capacity to users, availability of equipment and

facilities, charges for costs, and requirements that PEG access channels be

included in the basic cable tier. Robert F. Copple, Cable Television and

the Allocation of Regulatory Power: A Study of Governmental

Demarcation and Roles, 44 FED. COMM. L.J. 1, 147-48 (1991). The

1992 Act explicitly authorized franchising authorities, when awarding a

franchise, to “require adequate assurance that the cable operator will

provide adequate public, educational, and governmental access channel

capacity, facilities, or financial support.” Pub. L. No. 102-385, § 7(b),

106 Stat. 1460, 1483 (1992) (codified at 47 U.S.C. § 541(1)(4)(B)).

’ The regulations define “material soliciting or promoting unlawful

conduct” as “material that is otherwise proscribed by law.”

Implementation of Section 10 of the Cable Consumer Protection and

Competition Act of 1992, 58 Fed. Reg. 19,623, 19,626 (1993) (to be

codified at 47 C.F.R. § 76.702).

lla

The regulations permitted cable operators to require PEG access

programmers to certify that their programming contains no material

in these categories. /d.

Obscenity has no constitutional protection, and the government

may ban it outright in certain media, or in all. R.A.V. v. City of St.

Paul, 112 S. Ct. 2538, 2545 (1992). But an “indecent” program,

as the Commission and the statute define the term, is not necessarily

an obscene program.‘ While the government may nevertheless

restrict the showing of indecent programs, it may do so only in a

manner consistent with the First Amendment. See Sable

Communications of California, Inc. v. FCC, 492 U.S. 115, 126

(1989). If decisions of cable operators not to carry indecent

programs on leased or PEG access channels, decisions sections

10(a) and 10(c) permit, were treated as decisions of the

government, the Commission and the United States would be hard

put to defend the constitutionality of these provisions.

So far as sections 10(a) and 10(c) and the corresponding

regulations are concerned, the case therefore turns on the presence

An indecent program is one that “describes or depicts sexual or

excretory activities Or organs in a patently offensive manner as measured

by contemporary community standards for the cable medium.”

Implementation of Section 10 of the Cable Consumer Protection and

Competition Act of 1992, 58 Fed. Reg. 7990, 7993 (1993) (to be codified

at 47 C.F.R. § 76.701(g)). As all agree, this definition of indecency does

not encompass all of the elements of obscenity. A work is legally

obscene, according to Miller v. California, 413 U.S. 15, 24 (1973), if (a)

the average person, applying contemporary community standards” would

find that the work, taken as a whole, appeals to the prurient interest,

-.. 3" (b) “the work depicts or describes, in a patently offensive way,

sexual conduct specifically defined by the applicable state law;” and (c)

the work, taken as a whole, lacks serious literary, artistic, political, or

scientific value.”

l2a

or absence of “state action.” The First Amendment's command

that “Congress shall make no law . . . abridging the freedom of

speech, or of the press” restricts only the government. It does not

control private conduct. Before one may determine whether actions

taken by cable operators with respect to indecent programming on

leased and PEG access channels comport with the First

Amendment, one must decide whether those actions may be

attributed to the government.

Petitioners initially deny that the case presents any serious state

action problem: Congress enacted section 10(a) and section 10(c),

and a federal agency issued regulations putting the provisions into

effect; these were official actions of the government; hence state

action exists. Matters are not quite so simple, however. If the

government had commanded a particular result, if it had ordered

cable operators to ban all indecent programs on access channels, the

operators’ compliance would plainly be attributable to the

government. See Action for Children’s Television v. FCC, 932

F.2d 1504, 1508-09 (D.C. Cir.1991), cert. denied, 112 S. Ct. 1281

(1992). State action would exist for the same reason that the

government's compelling private entities to conduct searches

renders the ensuing searches subject to the Fourth Amendment. See

Skinner v. Railway Labor Executives’ Ass'n, 489 U.S. 602, 614

(1989). But sections 10(a) and 10(c) do not command. Cable

operators may carry indecent programs on their access channels, or

they may not. It is true that the Supreme Court has found state

action even though legislation, rather than compelling a result, left

the matter to the discretion of private actors. Larkin v. Grendel's

Den, Inc., 459 U.S. 116 (1982), and Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419 (1982), are such decisions.

But neither Larkin nor Loretto resembles the case before us. State

action existed in both of those cases because the government

conferred on private parties power that “traditionally [had been] the

exclusive prerogative” of the government (San Francisco Arts &

Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 544

(1987)), in Larkin the power to veto liquor licenses, in Loretto the

power to enter and occupy private property without the owner's

consent. By contrast, determining what programs shall be shown

l3a

on a cable television system is not traditionally within the exclusive

province of government at any level. That section 10 is a federal

statute authorizing action by private cable operators is therefore not

itself sufficient to trigger the First Amendment. See Flagg Bros. v.

Brooks, 436 U.S. 149, 165-66 (1978).

The question remains whether section 10 and the regulations

establish a “sufficiently close nexus” between the government and

cable operators regarding indecent programming on access channels

so that state action is present. Jackson v. Metropolitan Edison Co. ,

419 U.S. 345, 351 (1974); Skinner, 489 U.S. at 615. We agree

with petitioners that the question must be answered in view of the

precise nature of their objection. Blum v. Yaretsky, 457 U.S. 991,

1003 (1982). But what is the nature of their objection? One frame

of reference reveals “a battle for supremacy between the asserted

rights of private persons.” Robert J. Glennon, Jr. & John E.

Nowak, A Functional Analysis of the Fourteenth Amendment “State

Action” Requirement, 1976 Sup. CT. REV. 221, 230. That is,

petitioners are merely complaining about section 10(a)’s and section

10(c)’s restoring to cable operators’ their option to reject indecent

programming on their cable systems. Cable operators “are entitled

to the protection of the speech and press provisions of the First

Amendment.” Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct.

at 2456. When an operator decides what programming will appear

on its system, the operator engages in free speech. See City of Los

Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494

(1986); FCC v. Midwest Video Corp., 440 U.S. at 707. It is

therefore easy to see how sections 10(a) and 10(c), by giving

operators editorial control over indecent programming on their

systems’ access channels, promote the operators’ freedom of

speech.’ Petitioners, on the other hand, do not spell out in their

briefs exactly how the same provisions retard their freedom of

* We express no view on whether the provisions of the 1984 and 1992

Acts requiring cable operators to set aside leased access channels and

permitting franchising authorities to force operators to set aside PEG

access channels infringe upon the First Amendment rights of cable

operators or programmers.

l4a

speech. We gather from their submissions to the Commission that

they have members who wish to watch programs on access channels

describing or depicting “sexual or excretory activities or organs in

a patently offensive manner as measured by contemporary

community standards for the cable medium”; and that the

programmers who count themselves among the petitioners wish to

produce this sort of material for television. These interests will be

damaged, petitioners told the Commission, because sections 10(a)

and 10(c) will reduce the amount of indecent programming on cable

access channels. The idea appears to be that if legislation altering

the existing state of affairs threatens to lessen the quantity of

indecent speech, the government bears the legal responsibility for

the private decisions causing that result.

The question naturally arises — less indecent programming as

compared to what? The status quo ante? If the state of affairs under

the 1984 Act were the baseline from which to measure, as

petitioners assume without stating why, their assessment of section

10’s impact might be accurate. The 1984 Act did not permit cable

operators to decline indecent programming on access channels; after

the 1992 amendment, they had that option. But what of the period

before 1984? The Supreme Court’s 1979 decision in Midwest Video

relieved cable operators of the obligation, then imposed by

regulation, to provide leased access and PEG access channels.

Under those early regulations, operators were required — with

respect to both types of access channels — to establish rules

prohibiting the “presentation of . . . obscene and indecent matter.”

47 C.F.R. § 76.256(d)(1)-(2) (1976); see Midwest Video, 440 U.S.

at 693 n.4. As compared to the situation before the 1979 Midwest

Video decision, when indecent programming on access channels was

entirely forbidden, section 10 of the 1992 Act permits more — not

less — such programming. Still another comparison presents itself.

Rather than focusing only on the pre-1992 and post-1992 situations

with respect to access channels, one might contrast access channels

with other cable channels. Cable operators have always had the

discretion not to carry indecent programming on their non-access

channels. Yet no one would contend that the First Amendment

constrained the operator’s editorial judgment in this regard. We

iSa

therefore cannot agree with the premise implicit in petitioners’

arguments — that the 1984 Act gave rise to the constitutionally

proper quantity of indecent access programming. The First

Amendment did not compel the 1984 Act, and it certainly did not

compel prohibiting cable operatoz* from exercising any editorial

control over access programming.

This, we believe, places in the proper perspective petitioners’

charge that section 10 of the 1992 Act “establishes” a “procedural

scheme of private censorship.” Brief for Petitioners at 20, 27. If

“censorship” is understood as editorial control, petitioners are

partly correct, but their description does not translate into state

action. The 1984 Act also initiated what may be described as a

system of “private censorship.” From 1984 until 1992, Congress

gave private parties in charge of programming on leased access

channels complete control, free from any operators’ oversight,

regarding what the cable television audience could see on these

channels. During that eight-year period, programmers were the

ones exercising control over the content of access programming.

In petitioners’ terms, they were the ones acting as “private

censors.” When the 1992 Act gave cable operators the option of

vetoing decisions of access programmers to televise indecent

programs, it simply adjusted editorial authority between two private

groups.

As we see it, therefore, petitioners have merely discovered an

inherent characteristic of cable systems: the more discretion a cable

operator has over what will appear on its system, the less discretion

resides in those who have been given access to the operator’s

system (and vice versa). To suppose that whenever Congress

restores to cable operators editorial discretion an earlier statute had

removed, the operators’ exercise of this discretion becomes state

action subject to the First Amendment, not only would disable the

legislature from correcting what it perceives as mistakes in

legislation, but also would deter it from experimenting with new

methods of regulating. No analogous state action decision of the

Supreme Court — including Reitman v. Mulkey, 387 U.S. 369

(1967), from which the original panel took “specific guidance” and

on which it relied almost exclusively for its state action analysis

l6a

(Alliance for Community Media, 10 F.3d at 818-22) — has ever

gone so far.

Reitman may have leapt to mind because it too involved

legisletion modifying statutory restrictions on private parties. But

not much cn be made of the case for our purposes, certainly not

nearly as much as the original panel made of it. Petitioners seem

to share our judgment. Reitman is cited but once in their in banc

briefs, and then only in a footnote to support the notion that it

embodies a state action standard no different than Blum v. Yaretsky,

which we will discuss more fully in a moment. Brief for

Petitioners at 32 n.16. Reitman began as a suit between private

parties, with the plaintiffs claiming they had been denied an

apartment on the basis of their race in violation of a state housing

law. In 1964, while the suit was pending, California voters

approved Proposition 14, a state constitutional amendment (Art. I,

§ 26) prohibiting the state or any subdivision or agency thereof

from denying or limiting the right of any person to sell, lease or

rent his real property to any “persons as he, in his absolute

discretion, chooses.” 387 U.S. at 371. One effect of adding § 26

to the state constitution was to repeal the state law prohibiting

private racial discrimination in housing. If this were all § 26

accomplished, the case might have come out differently: “simple

repeal or modification of desegregation or antidiscrimination laws,

without more, never has been viewed as embodying a presumptively

invalid racial classification.” Crawford v. Board of Educ., 458

U.S. 527, 539 (1982). But in Reitman, Justice White, speaking for

four other Justices, demonstrated the fallacy of thinking § 26 had

only the effect of repealing antidiscrimination legislation. 387 U.S.

at 376. “The section struck more deeply and more widely.” /d. at

377. “Private discriminations in housing ... enjoyed a far

different status [after enactment of § 26] than was true before

passage of [the state) statutes” outlawing private racial

discrimination. /d. After § 26, minority groups who sought new

fair housing laws in California would somehow have to get the state

constitution amended before they could even attempt to convince the

legislature to enact such laws, while those seeking other legislation

could proceed directly to the legislature. By placing this

17a

impediment in the way of new anti-discrimination measures. § 26

itself discriminated against minority groups, and for that reason

constituted action of the state forbidden by the Fourteenth

Amendment.

This has long been the accepted understanding of Reitman. See,

e.g., DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME

COURT 420 (1990); LAURENCE H. TRIBE, AMERICAN

CONSTITUTIONAL LAW 1700 (2d ed.1988); Charles L. Black, Jr.,

The Supreme Court, 1966 Term — Foreword: “State Action,”

Equal Protection, and California's Proposition 14, 81 HARV. L.

REV. 69, 75, 82 (1967); Robert J. Glennon, Jr. & John E. Nowak.

A Functional Analysis of the Fourteenth Amendment “State Action”

Requirement, 1976 Sup. CT. REV. 221, 247: Kenneth L. Karst &

Harold W. Horowitz, Reitman v. Mulkey: A Telophase of

Substantive Equal Protection, 1967 Sup. CT. REV. 39, 51.° So

understood, the decision cannot support a finding of state action

here.Congress may modify section 10 of the 1992 Act anytime it

chooses, just as it modified the related provisions of the 1984

Act. There are no special impediments to its doing so.

Apparently recognizing this, petitioners invoke not Reitman, but

the statement in Blum v. Yaretsky, 457 U.S. at 1004, that “although

the factual setting of each case will be significant,” the government

“normally” can be held accountable for a private decision “only

when it has exercised coercive power or has provided such

significant encouragement, either overt or covert, that the choice

must in law be deemed to be that of the [government].” The Court

followed this qualified declaration with another qualification:

“Mere approval of or acquiescence in the initiatives of a private

party is not sufficient to justify holding the State responsible for

The panel opinion deemed it “not critical” that “Reitman involved an

amendment to the state constitution that also banned future enactment of

fair housing laws without an additional amendment of the state

constitution.” Alliance for Community Media, 10 F.3d at 820 n.8. The

Supreme Court in Reitman and in Crawford, and each of the authors cited

in the text, thought the opposite.

18a

those initiatives under the terms of the Fourteenth Amendment.”

Blum, 457 U.S. at 1004-05.

The “coercive power” element in the Blum formulation has no

application here for reasons already suggested. Rather than coerce

cable operators, section 10 gives them a choice.’ Section 10(b)’s

segregation and blocking requirements apply to “cable operators

[who] have not voluntarily prohibited” indecent programming on

leased access channels.Pub.L. No. 102-385, § 10(b), 106 Stat.

1460, 1486 (1992) (to be codified at 47 U.S.C. § 532G)(1))

(emphasis added). The Commission too put the matter in those

terms. Its first Report and Order states that any prohibition of

indecent programming on leased access channels will be “voluntary,

not mandatory” and that Congress did not intend cable operators to

“act as involuntary government surrogates.” First Report and

Order, 8 F.C.C.R. 998, 1003 4 30 (1993). Section 10(c) is to the

same effect.” It instructs the Commission to promulgate regulations

enabling — not requiring — cable operators to prohibit indecent

Judge Wald mixes apples and bricks in her four formulations of the

combined effect of § 10(a) and § 10(b). Dissent at 5. Take for example,

her number 1: “‘an operator must ban, or in the alternative must block’”

indecent programming on leased access channels. Operators who block

are necessarily operators who have not banned indecent speech. They are

carrying such programs on their systems and are leaving to their

subscribers the choice of tuning in. Despite all the fancy footwork, the

formulations merely report that (1) under these provisions operators now

have the editorial discretion to carry or not to Carry indecent programming

on their leased access channels; and (2) if they opt to carry such

programming, they have to comply with § 10(b). To conclude from this

that the operators’ decisions are state action is the same as saying that if

you are deciding whether to enter a particular line of business regulated by

the state, your decision whether to enter the business is “state action.”

You “must” comply with regulations, or you “must” stay out. Or closer

to home, Judge Wald would find state action when an Indiana bar decides

whether to have nude dancing — in her formulation, the bar either must

ban nude dancing or it must block children and others who do not consent

to watching the show. Cf. Barnes v. Glen Theatres, Inc., 111 S. Ct.

2456, 2461 (1991).

19a

programming on PEG access channels (Pub. L. No. 102-385,

§ 10(c), 106 Stat. 1460, 1486 (1992) (to be codified at 47 U.S.C.

§ 531)) and the Commission’s implementing regulation provides

that cable operators “may” prohibit indecent programming on PEG

access channels. Implementation of Section 10 of the Cable

Consumer Protection and Competition Act of 1992, 58 Fed. Reg.

19,623, 19,626 (1993) (to be codified at 47 C.F.R. § 76.702).

As to the remaining portion of the Blum formula, petitioners

offer three ways in which section 10 “has provided such significant

encouragement” to cable operators not to carry indecent

programming on their PEG and leased access channels that state

action must be foun¢ The first borrows from the original panel

opinion’s assertion “that the immediate objective of the 1992 Act is

to suppress indecent material and limit its transmission on access

channels” and that “the government wishes to suppress” such

material on access channels. Alliance for Community Media, 10

F.3d at 820: Brief for Petitioners at 28. There is no doubt that

section 10 embodies an objective, but it is one rather different than

that described in the passages just quoted. The immediate aim — all

that can be discerned from the language of the statute — is to give

cable operators the prerogative not to carry indecent programming

on their access channels. Experience under the 1984 Act moved

Congress to legislate as it did.

“The problem,” Senator Helms stated during the floor debate,

“is that cable companies are required by law to carry, on leased

access channels, any and every program that comes along,”

including programs that consist of a wide variety of highly indecent

material. 138 CONG. REC. $646 (daily ed. Jan. 30, 1992). The

Senator described leased access programming in New York City

that “depicts men and women stripping completely nude”; another

featuring people performing oral sex; a channel with ads promoting

“incest, bestiality, [and] even rape”; and a channel in Puerto Rico

carrying the Playboy Channel. /d. As he also pointed out, leased

access channels are “not pay channels, they are often in the basic

cable package.” Jd. Senator Thurmond mentioned leased access

channels with “numerous sex shows and X-rated previews of

hard-core homosexual films,” as well as channels with ads for

20a

phone lines letting listeners eavesdrop on acts of incest. /d. at 648.

PEG channels were also being used, for example, “to basically

solicit prostitution through easily discernible shams such as escort

services, fantasy parties, where live participants, through two-way

conversation through the telephone. . . [solicit] illegal activities.”

Id. at 649 (statement of Sen. Fowler); see also id. at 650 (statement

of Sen. Wirth) (agreeing that public access “clearly ... has...

been abused”).

Before the Commission, many commenters recognized that

indecent programs had been transmitted on cable access channels,

both leased and PEG. Time Warner Entertainment informed the

Commission that its New York City cable subsidiary carries a

leased access program (“Midnight Blue”) which “include(s]

excerpts from sexually explicit video cassettes and films showing in

graphic detail intercourse, masturbation and other sex acts,” and

which advertises “sex-oriented products and services, such as

‘escort services,’ ‘dial-a-porn’ telephone lines and Screw Magazine

(‘Midnight Blue’s’ print counterpart).” Comments of Time Warner

Entertainment Co., L.P., at 3 (Dec. 7, 1992). The company

reported that its leased access channel on which Midnight Blue

appears is “usually fully booked with sexually explicit

programming” every day “from 10:00 p.m. to 4:30 a.m.,” and “the

demand for additional time remains high.” /d. The record before

the Commission showed that indecent programming was also a

problem on PEG channels. For example, the Commission was

informed that programming transmitted over the public access

channel serving the City of Tampa, Florida, included “visual

depiction{[s] of male and female nudity ... simulated sexual

activity, and/or sexually related physical contact between

performers and audience members.” Comments of City of Tampa,

at 2 (Dec. 7, 1992). A Tampa viewer described turning on her

local public access channel in prime time and seeing “[tJotally nude

women. . . squatting and gyrating so that their genitals were in full

view,” and “a tape of a totally naked man dancing and screaming

obscenities.” Comments of Virginia B. Bogue, at 1 (Dec. 4, 1992).

And one large cable operator noted that a public access channel on

one of its systems transmitted a program “in which an access user,

2la

frontally nude, urinated on a photograph of the President of the

Unwied States.” Comments of Continental Cablevision, Inc., at 4

n.% (Pec. 7, 1992).

Congress could consider itself accountable for the appearance

of these and other such programs. The 1984 Act made them

possible by compelling cable operators to set aside leased access

channels and, at the franchising authorities’ direction, PEG access

channels, and by barring the operators from exercising any editorial

judgment over what would be shown there. Whatever may be said

in support of indecent programming on access channels,* Congress

surely does not have to promote it. In dealing with cable television,

Congress, no less than states dealing with relations between races,

cannot “be committed irrevocably to legislation that has proved

unsuccessful or even harmful in practice.”’ Crawford v. Board of

Educ., 458 U.S. at 539. Section 10 of the 1992 Act extricated

Congress from its promotional role, not by banning indecent

programming on access channels, but by permitting cable operators

to “police their own systems,” which the 1984 Act had prevented

them from doing. 138 CONG. REC. S650 (daily ed. Jan. 30, 1992)

(statement of Sen. Wirth).

We have no doubt that among the Members of Congress who

voted for the 1992 Act there are those who would applaud any

* _ “[T]here is surely a less vital interest in the uninhibited exhibition of

material that is on the borderline between pornography and artistic

expression than in the free dissemination of ideas of social and political

significance . . . .” Young v. American Mini Theatres, Inc., 427 U.S. 50,

61 (1976); see FCC v. Pacifica Found., 438 U.S. 726, 743 (1978).

* In light of Crawford, 458 U.S. at 538, a State’s “mere repeal of

race-related legislation or policies that were not required by the Federal

Constitution in the first place” does not make private individuals state

actors so that their treatment of others on the basis of race is governed by

the Fourteenth Amendment. By analogy, the Constitution did not require

Congress to bar operators from exercising editorial control over indecent

programming on access channels; and, contrary to Judge Wald (Dissent at

7 n.4), when Congress removed the bar in 1992 it did not transform

operators into state actors.

22a

cable operator’s decision not to carry indecent programming on

access channels, or for that matter, on any channel. Even if we

equated the view of some Members with the view of a majority,

and even if we pretended that their preferences had somehow

manifested themselves in statutory language, this still would not be

sufficient to transform a particular operator’s decision not to carry

indecent programs on its access channels into a decision of the

United States. “Mere approval of or acquiescence in the initiatives

of a private party,” Blum reminds us, cannot “justify holding the

State responsible for those initiatives,” 457 U.S. at 1004-05; see

Flagg Bros. v. Brooks, 436 U.S. at 164.

Nor does state action result simply because legislation

“encourages” the private initiative in the sense of making it

possible.’ Blum rejected a procedural due process challenge to

decisions of state-subsidized private nursing homes, made without

a hearing, to downgrade the level of treatment for patients on

Medicaid. Federal Medicaid regulations required nursing homes to

maintain different treatment levels and to transfer patients whenever

necessary; when a nursing home downgraded a patient’s treatment,

the State reduced the patient’s Medicaid payments. 457 U.S. at

994-95. In Blum, the “State was indirectly involved in the transfer

decisions . . . because a primary goal of the State in regulating

nursing homes was to keep costs down by transferring patients from

intensive treatment centers to less expensive facilities.”

Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982). “State and

federal regulations encouraged the nursing homes to transfer

‘© For instance, it cannot be that because access channels came into

existence as a result of governmental action, the private day-to-day

decisions — by programmers or by cable operators — about what will be

shown on those channels embody state action. The federal government

may create corporations but the resulting quangos are not, for that reason

alone, to be treated as governmental rather than private actors. Lebron v.

National Railroad Passenger Corp., 115 S. Ct. 961, 974-75 (1995); San

Francisco Arts & Athletics, Inc. v. United States Olympic Comm. , 483

U.S. at 543 n.23; Ralis v. RFE/RL, Inc., 770 F.2d 1121, 1125

(D.C.Cir. 1985).

ee ee ee

23a

patients to less expensive facilities when appropriate.” /d. The

nursing homes’ transfer decisions were nevertheless private

decisions, dependent upon the medical judgment of physicians, and

thus not governed by the Constitution. Blum, 457 U.S. at 1012.

So too with section 10 of the 1992 Act. which facilitates cable

operators’ editorial control over indecent programming, but does

rerio nn, utcome ot the criteria operators may use in

exercising judgment about whether such ing appears

on their access channels.'' _—" =

10(b)'s requirements, cable operators will opt for the less expensive

alternative of simply banning indecent programming from leased

access channels.’ To support this prediction, petitioners quote a

cable operator's comment to the Commission:

Restricting indecent programming on leased access channels

to a single channel and scrambling such programming to

prevent reception unless the subscriber has affirmatively

requested access will impose significant costs on the cable

operator. If operators are not permitted to recover these

costs in full, they will be forced, as a practical matter. to

™ Judge Wald would disregard Blum on the ground that the complaint

there challenged the decisions of private actors, while the petition here

challenges a federal Statute and its implementing regulations. Dissent at

6-7. There is nothing to this. The private actors in Blum made their

decisions pursuant to detailed state and federal regulations, Blum, 457 U.S.

993-95, and the Court evaluated the regulations to determine whether they

dictated the private decisions at issue, id. at 1006-10.

= This argument could not supply state action with respect to section

10(c)'s authorization to operators to prohibit indecent programming on

PEG channels. Section 10(b)'s segregation and blocking requirement

applies to leased access channels only. We cannot imagine how that

requirement could influence an operator's decision about allowing indecent

programming on PEG channels.

24a

adopt instead a policy prohibiting all such programming.

The single channel requirement would thereby be converted

into a de facto ban.

Comments of Continental Cablevisions, Inc., at 10 (Dec. 7,

1992). One notices immediately the significant condition in the

comment — “If operators are not permitted to recover these costs

in full ....* Nothing in section 10 specifies that the costs

associated with segregation and blocking must be borne by cable

operators, and the Commission has yet to consider the matter. The

Commission has determined to take up this and related issues in its

cable rate regulation proceeding upon the final resolution of this

litigation. First Report and Order, 8 F.C.C.R. 998, 1003 4 32

n.29 (1993); In the Matter of Implementation of Sections cf the

Cable Television Consumer Protection and Competition Act of 1992,

Rate Regulation, 8 F.C.C.R. 5631, 5943 4 502 n.1293 (1993).

The situation might well be different if the Commission were to

adopt a policy that created a significant economic disincentive for

operators to segregate and block indecent programming.

Judge Wald, in her dissent, also predicts that because section

10(b)'s segregation-and-blocking arrangement is “technically and

administratively cumbersome,” operators will choose to ban

indecent speech. Dissent at 8-9. Hence, there is “state action”

with respect to section 10(a) and leased access channels.'’ We do

On this unfounded prediction, on this single assertion, rests the

entirety of Judge Wald’s reasoning that § 10(a) constitutes state action for

leased access channels. But what of PEG access channels, where

operators have discretion under § 10(c) to carry indecent programming

without any segregation and blocking? Judge Wald, without the support

of Chief Judge Edwards, or Judge Rogers, offers a different rationale for

detecting state action in § 10(c) — that the provision is a “content-based

regulation of protected speech.” Dissent at 28. Of course that thoroughly

begs the question. The First Amendment protects speech not from private

interference but only from governmental restraints. One cannot say of

§ 10(c) that operators might be restricting “protected speech” until one

first makes the threshold determination that the actions of the operators are

(continued...)

25a

not understand the “technically” part of this proposition. The

comments of the National Cable Television Association, Inc., the

principal trade association for the cable television industry,

mentioned no technical difficulties in implementing section 10(b).

And for good reason. Every cable system that has premium or

pay-per-view channels already is constantly blocking and unblocking

them and thus has the technical capability to perform this task.

Perhaps there are smaller systems that do not have such channels.

But the Commission took care of that difficulty in its First Order:

it gave operators the choice of installing lockboxes (see infra p. 36)

and retaining the key or numeric code until the customer requests

unblocking. First Order and Report, 8 F.C.C.R. at 1009 n.46."4

As to Judge Wald’s point about “administrative” burdens, this is a

matter of costs, of who should bear the financial burden of

implementing section 10(b). As we have already mentioned, that

question will be determined in tuture proceedings. In deciding this

facial challenge to the regulations we are unwilling to speculate

about the outcome of those proceedings. Still less are we willing

to assume that the burden of implementing section 10(b) represents

“such significant encouragement” (Blum, 457 U.S. at 1004) that the

operators’ choice must be deemed to be the choice of the

government. The record, sparse as it is on this point, contains

material pointing in the opposite direction.

Time Warner's request, which the Commission granted, to

allow operators “to provide an additional blocked leased channel for

"(.. continued)

attributable to the government. Otherwise, whenever cable operators make

content-based choices not to carry particular programming on any channel,

there would be state action because the speech is “protected” and because

the governing statute does not force the operators to carry it.

" See “technical” problems but these dealt with

umung is, with how quickly operators could implement segregation

and blocking. In order to avoid any such problems, the Commission

allowed the operators 120 days to implement blocking mechanisms and

procedures. First Order and Report, 8 F.C.C.R. at 1009. In this

litigation the sufficiency of that time period is not challenged.

26a

indecent programming if the first channel becomes full,” is at odds

with petitioners’ and Judge Wald’s prediction that the cost of

implementing section 10(b) will force operators to ban indecent

programming altogether. First Report and Order, 8 F.C.C.R. at

1009 ¢ 66. Even smaller cable systems were worried about their

blocked leased access channels filling up, a concern that makes

sense only if they anticipated carrying indecent programming. The

burden was on petitioners, as the complaining parties, to show that

because of section 10(b), the decisions of operators not to carry this

material on leased access channels may be laid at the feet of the

government. Blum, 457 U.S. at 1004; San Francisco Arts &

Athletics, Inc. v. United States Olympic Comm., 483 U.S. at 547

n.29. And it is a burden they have not sustained.

Petitioners’ third way of establishing state action relies on

section 10(d) of the 1992 Act, the provision removing the civil and

criminal immunity of cable operators for obscene programming

carried on their access channels." Section 10(d), they say,

provides — in the words of Blum, 457 U.S. at 1004 - “such

Significant encouragement” to operators to bar indecent

programming on access channels that their “choice must in law be

deemed to be that of the” government. Blum itself rejected a

similar argument. Although state regulations penalized nursing

homes for failing to “discharge or transfer patients whose continued

stay [was] inappropriate,” the regulations did not themselves dictate

the decision to discharge or transfer. Jd. at 1009. Therefore,

“penalties imposed for violating the regulations add{ed] nothing to

[the patients’] claim of state action.” /d. at 1010. The same logic

applies here. Because obscenity is not constitutionally protected,

Congress may prohibit its showing on access channels. See, e.g.,

‘° Petitioners contend that section 10(d) is “particularly suspect” because

it covers programming that merely “involves obscene material.” Brief for

Petitioners at 31 n.15 (italics added); see supra note 1. As petitioners

acknowledge, however, the Commission’s unchallenged interpretation of

the statutory phrase is that operators lose immunity only for material that

“is unprotected by the first amendment.” First Reporm and Order, 8

F.C.C.R. at 1005 ¢ 44 0.40.

27a

Sable Communications of California, Inc. v. FCC, 492 U.S. at 124.

Nothing in section 10(a), section 10(b), or section 10(c) compels

cable operators to refuse to carry indecent programming. The

matter is left to their editorial discretion. With discretion comes

responsibility. Section 10(d) thus imposes on cable operators the

same liability for obscene access programming that operators long

have had with respect to other programming on channels they

control. 47 U.S.C. § 558 (amended 1992). Under the 1992 Act,

whenever an operator chooses to carry indecent programming on

any channel, it does so against the backdrop of Congress's

prohibition against obscenity on cable television. That a cable

operator takes this into account in deciding which programs to carry -

— on any channel — does not convert its refusal to carry indecent

programming into state action. See Fort Wayne Books, Inc. vy.

Indiana, 489 U.S. 46, 60 (1989); Carlin Communications, Inc. v.

Mountain States Tel. & Tel. Co., 827 F.2d 1291, 1297 n.6 (9th

Cir. 1987), cert. denied, 485 U.S. 1029 (1988)."*

Three other courts of appeals have found no state action in comparable

contexts. Dial Info. Servs. Corp. v. Thornburgh, 938 F.2d 1535 (2d

Cir.1991), cert. denied, 112 S. Ct. 966 (1992): Information Providers’

Coalition v. FCC, 928 F.2d 866 (9th Cir.1991); Carlin Communication.

Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352 (11th Cir. 1986).

Acting pursuant to a federal statute, telephone companies furnishing billing

services to dial-a-porn purveyors blocked their indecent messages until

customers, in writing, specifically requested access. The purveyors

challenged the statute as a prior restraint in violation of the First

Amendment because it required them to classify their messages based on

content. The Second and Ninth Circuits found no state action. Dial Info.

Servs. Corp., 938 F.2d at 1539, 1543; Information Providers’ Coalition,

928 F.2d at 871, 877. Both courts of appeals ruled that because the

government did not compel telephone companies to supply billing services

to dial-a-porn purveyors — which is what triggered the statute’s blocking

and classification requirements — the telephone companies were not state

actors and the First Amendment did not apply. Dial Info. Servs. Corp..,

938 F.2d at 1535; Information Providers’ Coalition, 928 F.2d at 877. In

Carlin Communication, Inc., the Eleventh Circuit held there was no state

action in a telephone company’s decision not to offer sellers of sexually

(continued...)

28a

Petitioners think that by calling leased access and PEG channels

“public forums” they may avoid the state action problem and

invoke the line of First Amendment decisions restricting

governmental control of speakers because of the location of their

speech. But a “public forum,” or even a “nonpublic forum,” in

First Amendment parlance is government property. It is not, for

instance, a bulletin board in a supermarket, devoted to the public’s

use, or a page in a newspaper reserved for readers to exchange

messages, or a privately owned and operated computer network

available to all those willing to pay the subscription fee. The

Supreme Court uses the “public forum” designation, or lack

thereof, to judge “restrictions that the government seeks to place on

the use of its property.” International Soc’y for Krishna

Consciousness v. Lee, 112 §. Ct. 2701, 2705 (1992) (italics added).

State action is present because the property is the government's and

the government is doing the restricting. In this line of cases,

regulation of speech on government property traditionally used for

public expression — streets and parks, for instance — gets the

highest level of scrutiny. /d.; Christian Knights of the Ku Klux Klan

v. District of Columbia, 972 F.2d 365, 372 (D.C.Cir.1992). These

are the typical “public forums.” Regulation of government

property opened for expressive activity, although not traditionally

so used, gets the same First Amendment treatment. /nternational

Soc’y for Krishna Consciousness, 112 §. Ct. at 2705. “Nonpublic”

'*(_. continued)

explicit messages access to its prerecorded message service, even though

a State regulatory agency studied the company’s proposed policy, issued

an order “strongly approving” the policy, and authorized a tariff

amendment incorporating it. Carlin Communication, Inc., 802 F.2d at

1358, 1359.

These decisions cannot be distinguished on the ground that with

respect to cable television, operators must accept non-indecent access

programming. What matters — in the dial-a-porn cases and in this one —

is whether the government has so injected itself into the private actor's

decision triggering federal regulation that the decision may, for purposes

of constitutional analysis, be treated as the government's.

{

29a

forums — nonpublic, that is, in the respect that the government has

not opened its property to the public — are treated less stringently.

Id. All of the Supreme Court’s “public forum” cases fall into one

of these three categories.'’ Access channels fall into none of

them. As petitioners and everyone else knows, these channels are

not government owned. The channels belong to private cable

operators; are managed by them as part of their systems; and are

among the products for which operators collect a fee from their

subscribers.

Petitioners nevertheless insist that even private property may

sometimes be considered a “public forum” for First Amendment

analysis. For this proposition they rest upon the italicized portion

See, e.g., International Soc'y for Krishna Consciousness v. Lee, 112

S. Ct. at 2703 (airports owned by Port Authority of New York and New

Jersey); United States v. Kokinda, 497 U.S. 720, 723 (1990) (sidewalk

belonging to post office); Cornelius v. NAACP Legal Defense & Educ.

Fund, 473 U.S. 788, 792 (1985) (fundraising campaign for federal

employees established pursuant to executive order); United States v.

Grace, 461 U.S. 171 (1983) (sidewalk in front of Supreme Court

building); Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S

37, 39 (19.2) (school district's internal mail system); Greer v. Spock, 424

U.S. 828, 830 (1976) (United States Army post); Lehman v. City of

Shaker Heights, 418 U.S. 298, 299 (1974) (advertising space on public

rapid transit vehicles); Adderley v. Florida, 385 U.S. 39, 40 (1966)

(premises of county jail). In United States Postal Service v. Council of

Greenburgh Civic Associations, 453 U.S. 114, 128, 131 (1981), which

petitioners do not cite, the Court held that privately owned mailboxes are

not “public forums” and sustained a federal law prohibiting anyone from

placing unstamped mailable matter in them. In finding no “public forum,”

it is uncertain whether the Court meant that mailboxes are simply private

property, as Justice Stevens thought in dissent, 453 U.S. at 152, or,

however described, are not open to the public for the expression of ideas.

A list of Supreme Court opinions using the phrase “public forum”

through the October 1983 Term is contained in Daniel A. Farber & John

E. Nowak, The Misleading Nature of Public Form Analysis: Content and

Context in First Amendment Adjudication, 70 VA. L. REV. 1219, 1221

n.15 (1984).

30a

of the following statement in Cornelius v. NAACP Legal Defense &

Educ. Fund, 473 U.S. 788, 801 (1985): “[a}lthough petitioner Is

correct that as an initial matter a speaker must seek access to public

property or to private property dedicated to publig use to evoke

First Amendment concerns, forum analysis is not completed merely

by identifying the government property at issue.” The forum in

Cornelius was the Combined Federal Campaign, created and

regulated by the government, and consisting of “an annual

charitable fundraising drive conducted in the federal workplace

during working hours largely through the voluntary efforts of

federal employees.” 473 U.S. at 790, 801. The forum was not, in

other words, what the Court described as “private property

dedicated to public use.” While the Court cited no examples of

such private property, it may have been referring to the government

function cases of Hudgens v. NLRB, 424 U.S. 507, 519 (1976),

overruling Amalgamated Food Employees Union v. Logan Valley

Plaza, 391 U.S. 308 (1968); and Lloyd Corp. v. Tanner, 407 U.S.

551, 568-69 (1972), in which a similar formulation — the “doctrine

of dedication of private property to public use” — made its

Supreme Court debut. What makes the Cornelius dictum puzzling

is that neither Hudgens nor Lloyd embraced any such doctrine. Far

from it. In holding that private shopping centers may not be

equated with public streets and parks for First Amendment

purposes, Hudgens and Lioyd found the dedication-of-private-

property-to-public-use notion “attenuated,” “by mo means

constitutionally required, and untenable."* Hudgens, 424 U.S. at

519; Lloyd Corp. v. Tanner, 407 U.S. at 569; of. Pruneyard

Shopping Center v. Robins, 447 U.S. 74, 80-81 (1980).

'S Hudgens and Lloyd distinguished the company town case of Marsh v.

Alabama, 326 U.S. 501 (1946), on the grounds that the private owner of

the town assumed “all of the attributes of a state-created municipality,”

exercised “semi-official municipal functions as a delegate of the State,”

and performed “the full spectrum of municipal powers,” Hudgens, 424

U.S. at 519 (quoting Lloyd, 407 U.S. at 569). None of the Parties to this

case even cite Marsh. The decision has no bearing on the issue defore us

for quite obvious reasons. Cable operators do not exercise municipal

functions, let alone the “full spectrum” of municipal powers.

3la

Given the holdings of Hudgens and Lloyd, the dictum in

Cornelius cannot serve as a basis for resurrecting this rejected

doctrine. And it cannot support a determination that cable access

channels are so dedicated to the public that the First Amendment

confers a right on the users to be free from any control by the

owner of the cable system. In saying this, we recognize that unlike

our examples of supermarket bulletin boards and private computer

networks, the government — in the 1984 Act — compelled cable

operators to provide leased access and, if the franchising authorities

so demand, PEG access channels. This had the effect, as the

Commission found in its First Report and Order in this case, 8

F.C.C.R. at 1001-02 $22, and as the Supreme Court had

anticipated in Midwest Video, 440 U.S. at 701, of imposing

“common-carrier obligations on cable operators.” In the

communications context, however, the fact that a regulated entity

is a common carrier — that under certain circumstances it must

provide communications facilities to those who desire access for

their own purposes (440 U.S. at 701) — does not render the entity's

facilities “public forums” in the First Amendment sense and does

not transform the entity’s discretionary carriage decisions into

decisions of the government. See Information Providers Coalition

v. FCC, 928 F.2d at 877; Carlin Communications, 827 F.2d at

1297; see also Sable Communications of California, Inc. v. FCC.

492 U.S. at 133 (Scalia, J., concurring). A heavily regulated

private carrier of electricity may cut off service without having its

decision scrutinized as if it were a state decision, Jackson v.

Metropolitan Edison Co., 419 U.S. at 358-59, and a private cable

operator may refuse to carry indecent programming without having

its decision tested by First Amendment principles applicable to the

government alone.

** *

Because we find no state action here and because that essential

element cannot be supplied by treating access channels as public

forums, we do not reach petitioners’ First Amendment attack on

sections 10(a) and 10(c).

32a

We turn now to section 10(b) of the 1992 Act. The provision

applies to cable operators who decide to carry indecent

programming on leased access channels. As implemented by the

Commission's regulations, section 10(b) directs these operators to

segregate leased access programming “identified by program

providers as indecent” on a particular leased channel (or channels,

if mere than-one is needed) “available to subscribers only with their

prior written consent . . . .” Implementation of Section 10 of the

Cable Consumer Protection and Competition Act of 1992, 58 Fed.

Reg. 7990, 7993 (1993) (to be codified at 47 C.F.R. § 76.701(b)).

Upon receipt of a subscriber’s “written request for access to the

programming that includes a statement that the requesting subscriber

is at least eighteen years old,” the operator must make the

programming available within thirty days. Id. Petitioners detect

four constitutional infirmities in this scheme: (1) section 10(b) is

not the least restrictive means of achieving the government's

interest; (2) it impermissibly discriminates against indecent

programming on leased access channels; (3) it constitutes an invalid

prior restraint; and (4) it is unconstitutionally vague.

“All questions of government are ultimately questions of ends

and means.” National Fed'n of Fed. Employees v. Greenberg, 983

F.2d 286, 290 (D.C.Cir.1993). So here. The end of section 10(b)

is not in doubt — it is to “limit the access of children to indecent

programming.” Pub. L. No. 102-385, § 10(b), 106 Stat. 1460,

1486 (1992) (to be codified at 47 U.S.C. § 532(j)(1)). That the

government has a “compelling interest in protecting the physical

and psychological well-being of minors,” which “extends to

shielding minors from the influence of literature that is not obscene

by adult standards,” is beyond dispute. Sable, 492 U.S. at 126.

Since the First Amendment permits the government to achieve that

aim so long as it uses the least restrictive means, id. at 126, the

first question section 10(b) raises is whether its segregation and

blocking requirements are such means.

In deciding this issue, it is essential to begin by comparing FCC

v. Pacifica Foundation, 438 U.S. 726 (1978), with Sable. In

Pacifica, the Commission ruled that an afternoon radio broadcast

33a

containing offensive, sexually explicit language violated a federal

prohibition against indecent radio communications. Pacifica, 438

U.S. at 731-33. Underscoring the nature of radio broadcasting —

its “uniquely pervasive presence” making protection of unwilling

listeners by broadcasting prior warnings impossible, id. at 748, and

its accessibility to children, id. at 749-50 — the Court held that the

Commission could prohibit a radio program containing indecent

words during times when there was a reasonable risk children

would be in the audience, id. at 732, 750. Eleven years later, in its

next encounter with federal regulation of media indecency, the

Court struck down legislation totally banning indecent interstate

commercial telephone messages. Sable, 492 U.S. at 117. Sable

distinguished Pacifica on the bases that children do not have the

same access to commercial telephone communications as they do to

radio broadcasting, and that indecent telephone communications do

not present the problem of surprising unwilling listeners. Jd. at

127-28. The Sable Court found that the total ban on indecent

commercial telephone communications limited “the content of adult

telephone conversations to that which is suitable for children to

hear.” Jd. at 131.'° Given these considerations, the Court ruled

there were less restrictive ways, short of a total ban, to accomplish

the government’s goal of protecting children from indecency. Jd.

From Pacifica and Sable, we distill two principles applicable to

this case. First, the constitutionality of indecency regulation in a

given medium turns, in part, on the medium’s characteristics.

Second, in fashioning such regulation, the government must strive

to accommodate at least two competing interests: the interest in

limiting children’s exposure to indecency and the interest of adults

in having access to such material. As to the first, it is apparent that

leased access programming has far more in common with the radio

broadcast in Pacifica than with the telephone communication in

Sable. Nearly fifty-six million households, more than sixty percent

of all households with televisions, subscribe to cable service. H.R.

CONF. REP. NO. 862, 102d Cong., 2d Sess. 56 (1992). Most cable

That finding necessarily entails the proposition that there are

conversations unsuitable for children to hear.

—

34a

ibers do not or cannot use antennas to receive broadcast

ean services. Jd. at 57. Hence “[c]able television has

become our Nation’s dominant video distribution medium. S.

REP. No. 92, 102d Cong., Ist Sess. 3 (1991). The cable audience,

like the radio broadcast audience, “constantly tunfes] in and out,

so that prior warnings will not “completely protect the . . . viewer

from unexpected program content.” Jd. Unlike services that

subscribers affirmatively choose and pay for, such as dial-a-porn or

cable pay-per-view and premium channels, leased access channels

automatically come into all cable subscribers homes. indecent

leased access programming thus hardly qualifies as an invited

guest,” see Judge Wald, dissenting, at 21. A cable subscriber no

more asks for such programming than did the offended listener in

Pacifica who turned on his radio. Cable television now provides 4

vast amount of information in an easily accessible way. In this

respect, it is similar to broadcasting. Consequently, it makes nO

sense to say that the First Amendment requires a household either

to forego cable television altogether or risk exposure to indecency.

For purposes of regulating indecency on those channels, -

conclude that cable television is sufficiently pervasive and easily

accessible to children to justify the government's attempts to

regulate indecency on cable channels.

In light of the nature of leased access programming, does

section 10(b) represent the least restrictive means of furthering the

government’s goal of protecting children from indecent

programming? Petitioners say no, Congress could sgt

accomplished what segregation and blocking achieve either bed

continuing to rely entirely on the 1984 Act's provision giving cable

viewers the option of voluntarily blocking indecent programming,

47 U.S.C. § 544(d)(2)(A), or by confining indecent programming

to late at night — a “safe harbor.” We agree with the government

that, given the pervasiveness of cable television and its accessibility

to children, neither of these options would have achieved the

government’s aims. As to subscriber-initiated | blocking, the

Commission concluded that the type of programming with which

section 10(b) is concerned presents special problems such a system

does not solve. Leased access programming “may come from a

35a

wide variety of independent sources, with no single editor

controlling [its] selection and presentation,” placing a cable viewer

in risk of being intermittently and randomly confronted with

patently offensive displays of sexual or excretory activities or

organs. First Report and Order, 8 F.C.C.R. 998, 1000 q 15

(1993). To prevent exposing children to such programming under

a voluntary blocking system, cable viewers would have two, equally

unacceptable options. Either they could continually activate and

deactivate their lockboxes, inevitably risking a slip up or a lapse

that would expose their children to indecency, or they could install

iockboxes permanently, thereby giving up leased access

programming altogether. Jd. at 1000-01 4 15; cf. Dial Info. Servs.,

938 F.2d at 1542 (“voluntary blocking would not even come close

to eliminating as much of the access of children to dial-a-porn as

. . would [a] presubscription requirement”). Nor would a “safe

harbor” period protect children from indecent programming as

effectively as section 10(b)’s segregation and blocking requirements.

Even during late hours, some unsupervised children will be

watching cable television and thereby have access to indecent

programming, a risk that section 10(b) eliminates. Not only do

section 10(b)’s segregation and blocking requirements most

effectively further the compelling interest in protecting children

from indecent leased access programming, but also this provision

minimally burdens those adults who wish to watch such material.

In this respect, section 10(b) differs markedly from the regulations

considered in Pacifica and Sable. In Pacifica, an adult could not

tune into indecent broadcasting at times when “there [was] a

reasonable risk that children [might] be in the audience,” 438 U.S.

at 732; and in Sable, an adult could never dial into indecent

commercial telephone messages, 492 U.S. at 13]. By contrast,

section 10(b) provides that those adults desiring to watch indecent

programs on the channel the operator has set aside can do so no

later than thirty days from the date of their request. /mplementation

of Section 10 of the Cable Consumer Protection and Competition

Act of 1992, 58 Fed. Reg. 7990, 7993 (1993) (to be codified at 47

C.F.R. § 76.701(c)). In fact, segregation and blocking appear to

accommodate the interests of those viewers who want indecent

programming better than would a safe harbor system, under which

36a

cable viewers would be confined to watching such programming

during designated, often inconvenient time periods.

Given its effectiveness in limiting the exposure of children to

indecent programming and its insignificant restriction of adults’

access to such material, we conclude that section 10(b) passes the

least restrictive means test.

Petitioners’ second argument is that the segregation-and-

blocking system unconstitutionally discriminates against

programming on leased access channels. Section 10(b), according

to petitioners, | embodies “speaker-based discrimination” in

violation of the First Amendment and the equal protection

component of the Fifth Amendment because similar regulations do

not apply to other types of channels. We find this idea tenuous.

Section 10(b) no more singles out indecent leased access

programming for regulation than did the 1984 Act, which

petitioners tout as the epitome of constitutionality. See infra p. 14.

They ignore entirely that a blocking system has been in place for all

channels, and thus with respect to all “speakers” on cable

television, since 1984. As we have mentioned, the 1984 Act, in

“order to restrict the viewing of programming which is obscene or

indecent,” required cable operators to sell or lease requesting

subscribers “a device by which the subscriber can prohibit viewing

of a particular cable service during periods selected by that

subscriber.” 47 U.S.C. § 544(d)(2)(A). These devices, commonly

known as lockboxes or “parental control devices,” use a key or a

numeric code to lock out certain channels. DANIEL L. BRENNER,

ET AL., CABLE. TELEVISION AND OTHER NONBROADCAST VIDEO

§ 6.09[3][c], at 6-98 (1994). Employing the devices, subscribers

can “decide whether to block a channel and have the operator keep

that channel out of their home by the flick of a switch.” /d.

Section 10(b) of the 1992 Act altered this system so that blocking

on leased access channels carrying indecent programming is now

er oe

37a

operator-initiated, with subscribers retaini i :

an . ri retaining the option of having

From the perspective of those petitioners who show or wish to

show indecent programs on these channels, the difference between

the two systems amounts to this: under the 1984 Act, their material

got into the home unless the subscriber locked it out; under the

1992 Act, their material does not get into the home unless the

subscriber invites it in. Either way the programmers’ products are

available to those who want to watch them. Of course, there will

always be subscribers disinclined to any action regardless of what

system is in place. Before 1984, their television sets would receive

the indecent programs shown on these channels; after 1992, they

would not. But we see no reason why leased access programmers

should necessarily retain the advantage of such inertia, and we can

conceive of no constitutional principle entitling them to do so.

Furthermore, there is little difference between section 10's

treatment of indecent leased access programming and the 1992

Act's handling of pay-per-view programming. Under current

regulations, pay-per-view programs are, in effect, blocked and

segregated: as the “negative option billing” provision requires, a

subscriber will not receive such programs unless he or she

specifically so requests. 47 U.S.C. § 543(f) (“A cable operator

shall not charge a subscriber for any service or equipment that the

Section 10(b)'s regulatory scheme parallels the one Congress imposed

on the dial-a-porn industry. Under 47 U.S.C. § 223(c\(1), telephone

subscribers can obtain access to obscene or indecent telephone messages

only by making a written request to their telephone carriers. The Second

and Ninth Circuits have rejected constitutional challenges to this statute

Dial info. Servs. Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir.1991). cert

denied, 112 S. Ct. 966 (1992); Information Providers’ Coalition v. FCC

928 F.2d 866 (9th Cir.1991); see supra note 16 :

38a

subscriber has not affirmatively requested by name.”).*' If that is

constitutional, and it surely is, so is section 10(b).

We reach the same conclusion when we consider the matter

from the perspective of those petitioners who are cable subscribers.

For the purpose of this analysis, subscribers may be divided into

two classes — those who do, and those who do not, want to receive

indecent programming on leased access channels. Before the 1992

Act, viewers in the do-not-want category always had to take the

initiative and to bear the expense of blocking indecent programming

from their homes. It was up to them to request their cable

operators to provide lockboxes to them, and they paid for the

equipment. With the 1992 Act, it is the do-want class who must

take the initiative: they are now the ones who have to make a

request, in writing, for access to indecent programming.” Under

both systems, adults who wish to receive this type of material

receive it. Certainly, as to the 1984 Act’s lockbox system, there

can be no constitutional objection. If individuals do not want

indecent material coming into their homes, they have every right to

keep it out. Nothing in the Constitution gives cable operators and

programmers the right to demand that subscribers watch whatever

they produce. The corollary to the freedom to bring expressive

material into the home is the freedom not to bring it in. By

requiring lockboxes to be made available upon request, the 1984

Congress facilitated the freedom of viewers and thereby advanced

If the operator decides to offer a “premium channel” free of charge

— that is a “pay service offered on a per channel or per program basis,

which offers movies rated by the Motion Picture Association of America

as X, NC-17, or R” the operator must give at least 30 days notice of the

offering and block the channel at the subscriber's request. 47 U.S.C

§ 544(d)(3).

= Viewers preferring “unimpeded, selective access to some but not al!”

indecent programming, see Judge Wald, dissenting, at 14, still have the

option of requesting access to a blocked channel and installing a lockbox

that enables them to block indecent programming they do not want their

children to see. Judge Wald apparently agrees that lockboxes are effective

means of restricting access to indecent programming. See id. at 23-25

39a

First Amendment values. It cannot make a constitutional difference

that the 1992 Congress, through section 10(b), has also facilitated

viewer preferences by shifting the burden of making a request from

the do-not-wart class to the do-want class of subscribers >

To say, as petitioners do, that section 10(b) distinguishes

between indecent speech and other types of speech, or that it singles

out leased access channels from other cable channels, supplies only

a description, not an analysis. Of course section 10(b) does what

petitioners Say, but it does so for a particular, and for a

constitutionally permissible reason — to protect children and to

enhance the ability of parents to shield their children from the

influence of “adult” programming. See Ginsberg v. New York, 390

U.S. 629, 639-40 (1968). The notion that Congress could not take

Petitioners do not contend that any stigma attaches to a subscriber

requesting unblocking or that subscribers would otherwise be deterred

from making @ request. Playboy's pay-per-view channel. to which

subscnbers must also request access, apparently has a large audience. See

Comments of New York Citizens Committee for Responsible Media, at

11 (Dec. 29, 1992). Moreover, the 1984 Act and the 1992 Act contain

provisions protecting the privacy of subscribers in their dealings with cable

operators. Pub.L. No. 102-385, § 20, 106 Stat. 1460, 1497-98 (1992)

(codified at 47 U.S.C. §§ 551(ay(2). SSl(c(2)); Pub.L. No. 98-549

§ 631, 98 Stat. 2779, 2794-95 (1984) (codified at 47 U.S.C. § 551)

Although the parties do not mention the case. it is worth noting that for

these reasons Lamont v. Postmaster General, 381 US. 301 (1965), is

distinguishable. The Supreme Coun there struck down a statute directing

the Post Office to detain mai! containing “communist political propaganda™

and to deliver it only upon the addressee’s affirmative request. Jd. at 302

307. The law set federal officials “astride the flow of mail to inspect it.

appraise it, write the addressee about it, and await a response before

dispatching the mail, id. at 306, and the Court rested its decision on the

narrow ground” that this would deter persons from requesting such mail

because they “might think they would invite disaster if they read what the

Federal Government says contains the seeds of treason.” id. at 307. It is

not the federal government, but private cable operators, who receive the

unblocking requests, and federal law forbids the Operators from revealing

what choice any particular subscriber has made

40a

step in this direction without imposing section 10(b)-like

undememnenal cable channels is not only untenable (see Ur:ted

States v. Edge Broadcasting Co., 113 S. Ct. 2696, 2707 (1993)),

but also inconsistent with the least restrictive means test we have

just discussed. That constitutional principle confines the scope of

the solution to the extent of the problem. See Simon & Schuster,

Inc. v. New York Crime Victims Bd., 112 S. Ct. 501, 511-12

(1991). To repeat what we wrote earlier, leased access

programming comes from a wide variety of sources, no single

entity controls its selection and presentation; no single editor Is

responsible for what is shown. What will appear on these channels.

and when, is anyone’s guess. Without segregation and blocking.

cable viewers risk subjecting themselves and their children to

sporadic encounters with patently offensive displays of sexual or

excretory activities or organs. First Report and Order, 8 F.C.C.R.

998, 1000 ¢ 15 (1993). Only PEG access channels are comparable.

But they did not pose dangers on the order of magnitude of those

identified on leased access channels, and Congress knew that if this

situation changed, local franchising authorities could respond by

issuing “rules and procedures” or other “requirements” pursuant to

the 1984 Act, 47 U.S.C. § 531(a) & (b), or by eliminating PEG

access channels altogether, 47 U.S.C. § 531(a). If Congress

nevertheless had stretched section 10(b) to cover other cable

channels, if it had not concentrated only on leased access channels.

it could have been charged with having regulated more extensively

than necessary. While there undoubtedly is indecent programming

on other cable channels.“ the Commission found that cable

” Operators have the power to impose a segregation and blocking system

on the vast majority of their non-access channels, because their editorial

control over such channels is unfettered by federal regulation. The only

exception 1s for those channels they must set aside for local broadcasting

to fulfill their “must-carry obligations.” See generally 47 U.S.C. §§ 534,

535: Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994).

Broadcasting, however, is regulated under a separate statutory scheme

limiting indecent programming to the late evening hours. See generally

Action for Children’s Television v. FCC, 11 F.3d 170 (D.C.Cir 1993),

(continued...)

at A es Sim I eg al

4la

operators generally provide it through “per-program or per channel

services that subscribers must specifically request in advance, in the

same manner as under the blocking approach mandated by section

10¢b).” First Report and Order, 8 F.C.C.R. at 1001 4 19 n.20.

Indeed, petitioners’ examples of indecency on other nonleased

access channels — the Playboy Channel and “Real Sex” on HBO —

fall into this category. In short, there is no constitutional rule

forbidding Congress from addressing only the most severe aspects

of this problem, and there are constitutional doctrines, such as

narrow tailoring and least restrictive means, that may have

constrained it from going further than necessary.

Petitioners’ two remaining contentions regarding section 10(b)

merit only brief discussion. That the Commission’s regulations

give a cable operator up to thirty days to comply with a subscriber's

request to unblock a leased access channel does not entail a “prior

restraint” in violation of the First Amendment.* Implementation

(continued)

reh’g in banc granted, 15 F.3d 186 (D.C. Cir. 1994). As to PEG access

channels, section 10(c) of the 1992 Act gives cable operators “broad

discretion” to decide how to treat indecent programming carried there, and

may if they choose impose a blocking system. Second Report and Order,

8 F.C.C.R. 2638, 2641 4 19. According to the Commission, Brief for the

Commission at 45, operators are not prohibited from imposing a

segregation and blocking system for PEG channels. See First Report and

Order, 8 F.C.C.R. at 1005 443 n.39. Thus, under section 10(b)

operators are required to segregate and block indecent programming

carned on leased access channels, while they are generally permitted to do

so on other channels.

“Petitioners also contend that § 10 as a whole constitutes a prior

restraimt because cable operators are “pressured to censor” indecent

programming according to a regulatory scheme that “dictates the contours

of this censorship.” Although framed in different terms, this argument is

essentially identical to petitioners’ claim regarding state action, which we

discussed and rejected. See supra pp. 10-27. We reiterate that cable

operators who decide to prohibit indecent programming on access channels

are not state actors. Consequently, their banning of such material cannot

(continued...)

42a

of Section 10 of the Cable Consumer Protection and Competition

Act of 1992, 58 Fed. Reg. 7990, 7993 (1993) (to be codified at 47

C.F.R. § 76.701(c)). A prior restraint is an administrative or

judicial order restraining future speech. See, e.g., Alexander v.

United States, 113 S. Ct. 2766, 2771 (1993); American Library

Ass'n v. Barr, 956 F.2d 1178, 1190 (D.C. Cir.1992). Yet nothing

in section 10(b) forbids speakers from speaking. Compare Vance

v. Universal Amusement Co., 445 U.S. 308, 311 (1980);

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 554

(1975). The offerings of leased access programmers will air.

Subscribers wishing to see indecent speech may not have their

wishes fulfilled instantaneously,” just as new subscribers to cable

television may have to wait for their services to be hooked up. The

latter is not a prior restraint, and neither is the former. See Dial

Info. Servs. Corp., 938 F.2d at 1543; Information Providers’

Coalition, 928 F.2d at 878. The government is neither prohibiting

indecent programming in advance, nor requiring anyone to obtain

the government's stamp of approval before a program airs.

Petitioners’ remaining argument is that section 10(b) is

impermissibly vague because leased access programmers must

identify for cable operators which of their programs are indecent.

Programmers thus must “worry about what a cable operator may

‘reasonably believe’ to be indecent.” Brief for Petitioners at 46.

The Commission’s definition of indecent programming essentially

wracks the definition of broadcast indecency this court reviewed in

Action for Children's Television v. FCC, 932 F.2d 1504, 1507-08

(D.C. Cir.1991), cert. denied, 112 S. Ct. 1282 (1992) (ACT I.

Compare Implementation of Section 10 of the Cable Consumer

Protection and Competition Act of 1992, 58 Fed. Reg. 7990, 7993

(continued)

constitute a prior restraint. Cf. Dial Info. Servs., 938 F.2d at 1543,

Information Proviiers’ Coalition, 928 F.2d at 877.

* The FCC determined that a written request, rather than a telephonic

one, was necessary to enable a cable operator to ascertain that the

requestor is over eighteen years old. First Report and Order, 8 P.C.C.R.

at 1009 4 67.

43a

(1993) (to be codified at 47 C.F.R. § 76.701(g)). In ACT I, 932

F.2d at 1507-08, and in Action for Children’s Television v. FCC

852 F.2d 1332, 1338-39 (D.C. Cir. 1988) (ACT J), we held that the

Supreme Court’s Pacifica decision foreclosed the question whether

this definition of indecency was unconstitutionally vague: “if

acceptance of the FCC’s generic definition of ‘indecent’ as capable

of surviving a vagueness Challenge is not implicit in Pacifica, we

have misunderstood Higher Authority and welcome correction.”

ACT I, 852 F.2d at 1339. No intervening Supreme Court decision

affects our determination. There is nothing to petitioners’ lament

that access programmers will have trouble discerning what cable

operators consider indecent. Since the Commission will resolve any

conflicts between a programmer and an Operator on this issue, First

Report and Order, 8 F.C.C.R. at 1010 475, programmers must

ultimately concern themselves with potential Commission

determinations regarding indecency. In this respect, they are in

precisely the same situation as the petitioners in ACT / and ACT II.

*“* *

Section 10(b)’s segregation and blocking requirements satisfy

the least restrictive means test; do not impermissibly single out

leased access programming for regulation; do not constitute a prior

restraint on speech; and are not, because of the definition of

indecency, unconstitutionally vague.

The petitions for review are denied.

44a

WALD, Circuit Judge, with whom TATEL, Circuit Judge, and,

with respect to Parts II and III, ROGERS, Circuit Judge, join,

dissenting: Lurid descriptions of programming that may well cross

over the line into obscenity and merit no First Amendment

protection at all should not obscure what this case really is about.

See Majority opinion (“Maj. op.”) at 19-20. This case is not about

obscenity; it concerns significant restrictions on a class of speech

that is unquestionably entitled to constitutional protection, although

possibly offensive to some audiences. See Sable Communications

of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). Under the

broad definition of “indecency” used in this regulation, affected

speech could include programs on the AIDS epidemic, abortion,

childbirth, or practically any aspect of human sexuality. '

The Denver Area Educational Television Consortium’s

critically-acclaimed program The 90's Channel, transmitted on the

leased access channels of eight cable systems, serving 500,000

customers, provides information and opinion on a broad range of

subjects in a self-described “unvarnished” cinema-verite style. The

90’s Channel has on occasion included segments on how to do a

self-help gynecological exam, a documentary on the controversial

' The regulations define “indecent” programming as programming “that

describes or depicts sexual or excretory activities or organs in a patently

offensive manner as measured by contemporary community standards for

the cable medium.” /mplementation of Section 10 of the Cable Consumer

Protection and Competition Act of 1992, 58 Fed. Reg. 7990, 7993 (1993).

The definition thus extends to any programming that includes “patently

offensive” verbal descriptions or visual depictions of sexual or excretory

activities, regardless of the literary, artistic, political, or scientific merit

of the work as a whole. The regulations require leased access

programmers to self-certify whether their work is “indecent” under this

definition, at the risk of being barred from televising future work if they

err in that judgment. First Report and Order, 8 F.C.C.R. 998, 1005 q 43,

1007 451, 1010 4 75 (1993). That the regulations will likely result in

overdeterrence by risk-averse programmers seeking to avoid the

professional “death penalty” imposed for certification errors seems quite

apparent. The result will inevitably be an extremely broad class of

programming silenced by the regulations.

45a

Robert Mapplethorpe art exhibit, and a traditional fertility festival

in Japan featuring a procession of marchers carrying images of

human genitalia. Each of these programs included descriptions or

depictions of sexual activities or organs that might well be

considered “patently offensive” as measured by contemporary

community standards. Self-applying the FCC’s definition of

“indecency ,” then, it is not at all improbable that a cable operator

might declare all these programs “indecent,” and find itself required

under the regulations either to ban or to block them.

“Indecency” is not confined merely to material that borders on

obscenity — “obscenity lite.” Unlike obscenity, indecent material

includes literarily, artistically, scientifically, and politically

meritorious material. Indeed, by definition, it includes all “patently

offensive” material that has any of these kinds of merit, and cannot

be branded as obscene under the standard established by the

Supreme Court in Miller v. California, 413 U.S. 15, 24 (1973). In

many instances, the programming’s very merit will be inseparable

from its seminal “offensiveness.” A bowdlerized documentary on

the Mapplethorpe exhibit which did not include some description or

depiction of Mapplethorpe’s sexually explicit photographs

themselves, for example, would hardly be an informative statement

on the artistic and political debate the exhibit engendered. Yet the

very act of including such powerful visual or audio images, which

to many viewers are “patently offensive,” would court an

“indecency” citation by the FCC if the cable operator did not pull

the plug or consign the program to a blocked channel. It is these

kinds of portentous decisions about art, politics, science and

“indecency” which are implicated in this case.

| While we accept that the government may have a compelling

interest in protecting children from indecent programming, we

agree with Judge Edwards that that interest must be pursued in the

context of helping parents to make viewing choices for their

46a

children as to the programming they watch inside the home.’

Additionally we note that producers of such programming also have

a constitutional right against unnecessary governmentally-induced

restrictions on their right to disseminate programs to willing adults.

The legal issue devolves into one of whether the FCC s

“indecency” reguiations unduly burden the First Amendment rights

of speakers and adult listeners on access Channels of

privately-owned cable systems. Before turning to this complicated

question, however, we must satisfy ourselves that state action ‘s

present in Congress’ statutory scheme.

I. STATE ACTION IS INVOLVED IN SECTIONS 10(A) AND (B)

The First Amendment commands that “Congress shall make no

law .. . abridging the freedom of speech... .” Our state action

analysis begins with the law that Congress has made in this case.

Sections 10(a) and (b) of the 1992 Cable Act impose a disjunctive

scheme regulating indecent speech. In tandem, they require that

cable operators either ban or block “indecent” speech on leased

access cable channels. The majority insists, however, that § 10(a)

is exempt from constitutional scrutiny because it involves no

state-imposed burden on speech. Instead, they say, § 10(a) merely

restores to cable operators the “editorial control” taken away from

them in the Cable Communications Policy Act of 1984, Pub. L.

No. 98-549, 98 Stat. 2779 (“1984 Act”), which mandated the

creation of publicly accessible leased channels and forbade operators

from controlling the content of programs on those channels. Maj.

We note that the Supreme Court has never actually passed on the

FCC’s broad definition of “indecency.” See Action for Children's

Television v. FCC, 852 F.2d 1332, 1338-39 (D.C. Cir. 1988)

(acknowledging that in FCC v. Pacifica Foundation, 438 U.S. 726 ( 1978),

the Supreme Court never specifically addressed whether the FCC s generic

definition of indecency was unconstitutionally vague, but arguing that

because the Court “implicitly” approved the definition by relying on it,

lower courts are barred from addressing the vagueness issue on the

merits).

- ee oe)

47a

op. at 15. In fact, § 10(a) does not restore any genuine editorial

control to cable operators over indecent material. Instead § 10

insists that a cable operator either ban a governmentally-defined

category of “indecent” speech outright or, if it declines, relegate it

to a separate channel and block al/ households from receiving that

channel unless they specifically request it in writing up to 30 days

in advance. Sections 10(a) and (b) are co-dependent parts of one

statutory scheme regulating speech. They present cable operators

with an “either-or” command: accentuate the positive by banning

indecent leased access programming under § 10(a), or eliminate the

negative by blocking it under § 10(b). There is no “Mr.

In-between.” The operator can no longer in close cases Jet the

program air on a regular leased access channel, or televise it at a

later hour when fewer children are watching, as he might on a

regular commercial channel. Clearly, §§ 10(a) and (b) are

inseparable parts of an integrated statutory regime that aims out

front to curtail cable transmission of indecent speech, and affords

cable operators only the most l

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.