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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 727

## 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?

ii
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

Nw

we

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

iv
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 :
: (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

la

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 93-1169 September Term, 1994

Alliance for Community Media, et al.,
Petitioners

V.

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

2a

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

V.

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

V.

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

3a

No. 93-1270

ALLIANCE FOR COMMUNITY MEDIA:
ALLIANCE FOR COMMUNICATIONS DEMOCRACY:
PEOPLE FOR THE AMERICAN WAY,
PETITIONERS

We

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

V.

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

4a

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.

Sa

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.

I

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

6a

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

7a

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

© Sec. 10. Children’s Protection From Indecent Programming on
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. ..)

8a

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).”.

(c) Prohibits System Use. — Within 180 days following the date
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).

— | ——

9a

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.

il
A

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.

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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

6

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

.
.
.
f
:

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.

¢
A
é

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)."*

16

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.

A
>
:
{
.
-

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

17

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

Il

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

19

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 limited choice as to how to achieve
that end.

The purpose and effect of §§ 10(a) and (b) are clear enough.
As their chief congressional sponsor explained, they “forbid cable
companies from inflicting their unsuspecting subscribers with
sexually explicit programs on leased access channels.” 138 CONG.
REC. $646 (daily ed., Jan. 30, 1992) (statement of Sen. Helms)
(emphasis added). That forthright statement would ordinarily end
the state action inquiry. When Congress passes a statute whose
avowed purpose, and effect, is to forbid or severely restrict
communication of a certain category of speech defined by content,
state action is usually conceded. Cf, e.g., Regan v. Taxation With
Representation of Washington, 461 U.S. 540, 548 (1983)
(congressional enactment may have differential effect on some
categories of speech, so long as the statute is not “intended to
suppress” a content-defined category of speech).

The majority argues, however, that because § 10(a) is couched
in permissive language, not explicitly requiring the operator to ban
indecent speech, there is no state action. Maj. op. at 12. But in
effect, § 10 says “an operator may ban, or in the alternative must

48a

block.” To illustrate the effect of the “may” language of § 10(a)
when used in the context of § 10(b), we point out that the
operator’s options — and the burden on speech — would be no
different if the regulation were expressed in any of the following

terms:
1. “an operator must ban, or in the alternative must block”;

2. “an operator may block, or in the alternative must ban”; or

3. “an operator may ban, or in the alternative may block, but
these alternatives are to the exclusion of all others.”

All these formulations, linguistically distinct, are logically and
functionally equivalent. Each commands that the cable operator
either ban or block indecent speech. Yet the §§ 10(a) and (b)
option is no different in its effect. Only empty formalism would
elevate Congress’ choice of the nominally permissive “may
language of § 10(a) to demonstrate the absence of state action, when
§ 10(b) lurks in the shadows, ready to pounce.’

Senator Helms’s statements in floor debate that § 10 merely
restores editorial control to cable operators do not do much to
bolster the government’s anti-state action argument. See 138
CONG. REC. $646 (daily ed., Jan. 30, 1992) (statement of Sen.
Helms) (“this is not governmental action” but “action taken by a
private party”); id. at S649 (statement of Sen. Helms) (in colloquy,
responding affirmatively to the statement, “So this is not
Government censorship”). In light of Sen. Helms’s earlier
statement that the purpose of § 10 was to “forbid” cable operators
from transmitting indecent programming, these later statements

> Although the majority does not say so expressly, its analysis of
§ 10(b) as the “least restrictive means” for protecting children presumes
that state action is implicated. Yet, if § 10(a) does not implicate state
action, it is difficult to see why § 10(b) does either, since the cable
operator is no more required to segregate-and-block indecent programming
under § 10(b) than it is to ban indecent programming under § 10(a). In
either case, the operator can avoid one provision entirely by “voluntarily”
electing to submit to the other provision.

a Lo

49a

suggest only a belated awareness of the section's constitutional
infirmities, and an attempt to put a gloss on the directive. But an
unconstitutional sow’s ear cannot be so easily converted into a
constitutional silk purse.

The majority concedes that if the cable operator’s decision to
ban indecent programming under § 10(a) is state action, the
regulation is a form of state censorship and cannot survive First
Amendment scrutiny. Maj. op. at 11. But they go on to cite Blum
v. Yaretsky, 457 U.S. 991 (1982), for the proposition that the cable
operator’s decision to ban indecent programming under § 10(a),
however constrained, is nor state action, but rather the action of a
private party without a sufficiently close “nexus” to the government
so that the state may be held responsible for his actions. Under
Blum, the state can be held responsible for a private decision only
if the state exercises coercive power on the private actor, provides
“significant encouragement” for the decision, or transfers into
private hands powers traditionally exercised by the state. /d. at
1004-05. Here, the majority contends, none of those criteria is
met.

I do not think this case fits the Blum model. As Blum itself
instructs, “[f]aithful adherence to the ‘state action’ requirement. . .
requires careful attention to the gravamen of the plaintiff's
complaint.” Jd. at 1003. In Blum, nursing home patients
challenged decisions by private physicians and nursing home
administrators — based on “medical judgments . . . according to
professional standards that are not established by the State,” id. at
1008 — to discharge or transfer them without procedural
safeguards. The Blum complainants sought to hold those private
decisionmakers to due process standards applicable to state actors:
they did “not challeng[e] particular state regulations or procedures
....” On due process grounds. /d. at 1003. Here, in contrast,
petitioners do not seek to apply First Amendment standards to the
“actions taken by cable operators with respect to indecent
programming,” Maj. op. at 11. Instead, they mount a direct facial
challenge to a federal statute and implementing regulations which
have the avowed purpose and effect of restricting communication of
a content-defined class of constitutionally-protected speech. The

50a

majority's Blum analysis thus asks, and answers, the wrong
question. The core question here is not whether the cable
operators’ private decisions implicate state action; whatever the
answer to that question, we have state action in the government's
own ban-or-block scheme, which is what is at issue here.‘

As the Supreme Court explained in Lugar v. Edmondson Oil
Co., Inc. — decided the same day as Blum — the point of the state
action inquiry is to determine whether “the conduct allegedly
causing the deprivation of a federal right . . . [is] fairly attributable
to the state.” 457 U.S. 922, 937 (1982). To answer that question,
we ask first whether the deprivation is “caused by the exercise of
some right or privilege created by the State or by a rule of conduct

* The confusion may stem from the way the argument was posed and
addressed in the original panel opinion. There, the government conceded
that if cable operators’ decisions to ban indecent programming under
§§ 10(a) and 10(c) were state action, the statute would impose a
constitutionally impermissible censorship regime. Alliance for Community
Media v. FCC, 10 F.3d 812, 820 n.9 (D.C.Cir.1993), vacated, 15 F.3d
186 (1994). The panel held that cable operators’ decisions were indeed
state action. /d. at 818-22. The majority rejects that conclusion. But the
majority's next move is a nonsequitur: it simply does not follow that, if
the cable operators’ decisions are not state action, then the statute itself is
not state action, and is exempt from constitutional scrutiny. Indeed, it
strikes me as a wholly untenable proposition that a statute duly enacted by
the Congress of the United States could be anything other than state action.
The majority might better have argued that although the statute itself is
plainly state action, it effects no abridgement of freedom of speech because
it does nothing more than restore editorial control to cable operators. In
that regard, they might have a stronger argument if the statute withdrew
governmental restrictions on cable operators’ control over leased and PEG
access Channels evenhandedly and across the board, without itself imposing
differential regulations discriminating (as this statute does) on the basis of
content in order to suppress a particular content-defined category of
speech. See infra, Part IV.A. But instead of pursuing that line of
reasoning, the majority would immunize the statute itself from
constitutional scrutiny on grounds that cable operators’ decisions under
§§ 10(a) and 10(c) are not state action.

Sla

imposed by the State or by a person for whom the State is
responsible”; and second, whether the “party charged with the
deprivation . . . [is] a person who may fairly be said to be a state
actor.” Jd. Here, the deprivation of First Amendment rights is
“caused by . . . a Tule of conduct imposed by the State” — the rule
requiring cable operators to ban or block a category of
programming.’ And the parties “charged with the deprivation, ”
Congress and the FCC, are clearly “state actors.”

Even if Blum did provide a legal analogy, which it does not, the
factual record places it a galaxy apart. There is pressure in this
scheme to push cable operators to ban indecent programming
outright. Statements in the agency record by cable Operators say
that they view the § 10(b) segregation- and-blocking arrangement
to be so technically and administratively cumbersome as to render
it highly unattractive and indeed for many “unworkable.” Joint
Appendix (“J.A.”) 195-97, 200, 253. See also First Report and
Order, 8 F.C.C.R. at 1009, 4 69 (acknowledging technical and
administrative burdens of blocking scheme) .°

* As Justice White explained in his concurrence in Blum, the private

parties’ decisions there were not based on any rule imposed by the state.
457 U.S. at 843 (White, J., concurring).
* The Commission noted that “the new blocking requirements may be
difficult for sone cable systems that are not as technologically advanced
as addressable systems” and “may require considerable adjustments .
in terms of rearranging existing services. |.” First Report and Order.
8 F.C.C.R. at 1009 4 69. See also J.A. 253 (comments of Time Warner
Entertainment Company, noting “technological problems” faced by
nonaddressable systems). “In addition, the new regulations will require
cable operators to establish new procedures for subscriber notification oe
and for the processing of requests of leased access users and of subscriber
requests for this channel, etc.” 8 F.C.C.R. at 1009 4 69. Finally, the
Commission noted the special difficulties faced by “systems that require
(rapping devices to circumscribe access to these services.” Id. Some
“trapping” technology would require the operator to send out employees
to place signal-interdicting “traps” at each subscribing household, and to
remove them when the subscriber requested the blocked service. See J.A.
(continued...)

52a

In addition, as the majority itself concedes, Maj. op. at 23-24,
the Commission has yet to decide who will absorb the potentially
high cost of the § 10(b) segregation-and-blocking scheme. If the
cost falls on cable operators, as it presumptively must at least
temporarily until the Commission authorizes a shift to subscribers
or lessees, operators have a strong financial incentive, as well, to
ban rather than block. See J.A. 200-01 (comments of Community
Antenna Television Association, Inc.). Somewhat puzzlingly. the
majority argues that because the Commission has not yet decided
whether to allow cable operators to shift these costs, we do not
know if operators will have a financial incentive to ban rather than
block, and therefore petitioners have not met their burden of
showing state action. Maj. op. at 23-24. That seems to me a
notion at odds with our traditional constitutional test for state
action. Surely the agency’s delay in stating who will ultimately
bear the financial burden of its scheme cannot postpone
constitutional review indefinitely, once the scheme is in operation.
And clearly the present regulations do not authorize operators to
shift the costs of segregation-and-blocking to subscribers or lessees.
See Implementation of the Cable Television Consumer Protection
and Competition Act of 1992: Rate Regulation, 8 F.C.C.R. 5631
44 506, 516-20 (1993) (Commission sets maximum rates operators
may charge lessees, based on annual calculation of “implicit fee”
paid by nonaffiliated commercial programmers, with no provision
for cost-based adjustments). Until the Commission takes
affirmative measures to allow cost-shifting, any operator

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0634%3A02. Public record. Not legal advice.