Joint Appendix — Denver Area Ed. Telecommunications Consortium, Inc. v. FCC

Supreme Court brief1996

Ask Donna

What actually matters in this document.

Text

OCTOBER TERM, 1995

> Fe eae

DENVER AREA EDUCATIONAL TELECOMMUNICATIONS

CONSORTIUM, INC. and AMERICAN CIVIL LIBERTIES UNION,

Petitioners,

—VvV.-——

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents.

ALLIANCE FOR COMMUNITY MEDIA, et al.,

Petitioners,

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

JOINT APPENDIX

CHARLES S. SIMS* I. MICHAEL GREENBERGER*

PETER J.W. SHERWIN Shea & Gardner

Proskauer Rose Goetz 1800 Massachusetts Ave., NW

& Mendelsohn LLP Washington, D.C. 20036

1585 Broadway (202) 828-2000

New York, New York 10036 Counsel for Petitioners Alliance

i (212) 969-3000 for Community Media, Alliance

| Counsel for Petitioners for Communications Democracy,

4 in No. 95-124 and People For the American

! | Way in No. 95-227

}

a DREW S. DAYS, III

Solicitor General

it Department of Justice

t Washington, D.C. 20530

Bf (202) 514-2217

Counsel for Respondents

* Counsel of Record

(Counsel continued on inside front cover)

PETITIONS FOR CERTIORARI FILED JULY 21, 1995 AND AUGUST 9, 1995

CERTIORARI GRANTED NOVEMBER 13, 1995

STEVEN R. SHAPIRO

MARJORIE HEINS

American Civil Liberties

Union Foundation

132 West 43d Street

New York, New York 10036

Counsel for Petitioners

in No. 95-124

THOMAS J. MIKULA

MICHAEL K. ISENMAN

DAVID B. GOODHAND

Shea & Gardner

1800 Massachusetts Ave., NW

Washington, D.C. 20036

Counsel for Petitioners

Alliance for Community Media,

Alliance for Communications

Democracy, and People For the

American Way in No. 95-227

JAMES N. HORWOOD

Spiegel & McDiarmid

1350 New York Ave., NW

Washington, D.C. 20005

Counsel for Petitioners

Alliance for Community Media

and Alliance for Communications

Democracy in No. 95-227

ANDREW JAY SCHWARTZMAN

GIGI SOHN

Media Access Project

2000 M Street, NW

Washington, D.C. 20036

ELLIOT MINCBERG

LAWRENCE OTTINGER

People For the American Way

2000 M Street, NW

Washington, D.C. 20036

Counsel for Petitioners

People For the American Way

in No. 95-227

ROBERT T. PERRY

509-12th Street, Apt. 2C

Brooklyn, New York 11215

Counsel for Petitioners

New York Citizens Committee for

Responsible Media, Media Access

New York, Brooklyn Producers’

Group, and David Channon in

No. 95-227

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

TABLE OF CONTENTS

Page

Opinions, Orders, and Parts of the Record Omitted from the

EES OT

Comments of Acton Corp., Allen’s Television Cable Service,

Inc., Cable Television Association of Maryland, Dela-

ware and District of Columbia, Century Communications

Corp., Columbia International, Inc., Florida Cable Tele-

vision Association, Gilmer Cable Television Company,

Inc., Helicon Corp., Jones Intercable, Inc. KBLCOM

Inc., Monmouth Cablevision Assoc., TeleCable Corpora-

tion, Texas Cable TV Association, United Video Cable-

vision, Inc., and West Virginia Cable Television Associa-

Joint Comments of Alliance for Community Media, the Alli-

Civil Liberties Union and People For the American Way.

Exhibit A: Patricia Aufderheide, Cable Television and

the Public Interest, 42 1. COMM. 52 (1992) ......

Exhibit L: Patricia Aufderheide, Public Access Cable

Programming, Controversial Speech, and Free Ex-

ee bebe ebcccecscccces

Exhibit M: Affidavit of Joseph J. Collins submitted in

Time Warner Entertainment Co. v. FCC, No. 92-

Exhibit N: Letter from InterMedia Partners to Tucson

Community Cable Corp. of Nov. 13,1992 ......

Exhibit O: Customer Handbook, Jerrold IMPULSE

7000, Model DP71**, DPV72** and DPBB73**

Exhibit P: Customer Handbook, Jerrold STARCOM VI

Model DPV5-* Addressable Converter with Volume

Exhibit Q: Customer Handbook, Jerrold STARCOM 7

Model DQN7-* Digital Plain Comverter ........ 133

Comments of Ann Arbor Community Access Television... 155

Joint Comments of Blade Communications, Inc., Multivision

Cable TV Corp., Parcable, Inc., Providence Journal

Company, and Sammons Communications, Inc. ..... 157

Comments of the Boston Community Access and Program-

GE PEE wb bcceesesectiaasateabee. 162

Comments of Roxie Lee Cole, Citizen .............. 170

Comments of Columbus Community Cable Access, Inc

Se ae wcnhe 6 aves b Cbbbadue becknanee 172

Comments of the Community Antenna Television Associa-

PG cc eae nde s 6 dnd bin eeee Geen ieee 174

Comments of Continental Cablevision, Inc............ 181

Comments of Cox Cable Communications, a Division of Cox

Ce, Eh oc ob weeeeh es sess ieseeen 196

Comments of Denver Area Educational Telecommunications

Appendix A: Articles Concerning CamNet ........ 211

Mark Robichaux, Camncorders Spark Two Cable

Ventures, WALL ST. J., July 30, 1992 at BI... 212

Steve Weinstein, A Cable Network About the Real

World, L.A. TIMES, Oct. 16, 1992 at F24 .... 216

Joe Rhodes, Video: Power to the People, TV GUIDE,

3s S Fl RYE 4 Sr ae 220

SE cecwecevaebebbtawes ctqee 221

Appendix B: Program Segments Carried by The 90's

Channel Dealing with Sexuality ............. 224

Comments of InterMedia Partmers................. 226

Comments of the National Association of Telecommunica-

tions Officers and Advisors, National League of Cities,

United States Conference of Mayors, and the National

A EI Ta a ge 239

Comments of National Cable Television Association, Inc 244

Comments of Tele-Communications Inc. ............ 246

Comments of Time Warner Entertainment Company, L.P. . 249

Comments of Virginia B. Bogue and Amy Lerom, Citizens of

Tampa, Florida to Proposed Rule Making ......... 271

Comments of City of Tampa Office of Cable Communication

CIE, og wine cmosccsccecces: 275

Joint Reply Comments of the Alliance for Community Media,

can Civil Liberties Union and People For the American

Linda Haugsted, Warner, Access Group in Shootout,

MULTICHANNEL News, May 20, 1992 at 1,56 . 302

Linda Haugsted, Warner Cable Up for Renewal,

MULTICHANNEL NEWS, July 22, 1991 at 14... 305

System Notes, MULTICHANNEL NEWS, October 13,

PU Sikes obs » Cees Shc cw chews 307

SE atadcheteeune ce camhvsee bees 308

Jerry Adler, Was It Good for You, Too, NEWSWEEK,

*§ 5 PRE rr 309

Reply Comments of Cambridge Community Television ... 311

Reply Comments of Cincinnati Community Video, Inc. ... 316

Reply Comments of the City of St. Paul... .......... 318

Reply Comments of Columbus Community Cable Access,

I el ene ee 327

Reply Comments of the Denver Area Educational Telecom-

munications Consortium, Inc. on Notice of Proposed

Dé ain du 6 SWee Owes CSRS ced se VSR 330

Reply Comments of the Motion Picture Association of Amer-

DU ca ccsweeheudec dé 4 cubbebe ce 40S. 333

Reply Comments of the National Association of Telecommu-

nications Officers and Advisors, National League of

Cities, United States Conference of Mayors, and the

National Association of Counties ............... 342

Reply Comments of the National Cable Television Associa-

PPP Pre rT reTEP Tlic. cree CPT TeLe 349

Reply Comments of ‘Olelo: The Corporation for Community

PTT Te rier 351

Reply Comments of Viacom International Inc. ......... 353

Comments of New York Citizens Committee for Responsible

DS > wcsc koe cum an eet hs es eunn werk 358

PE a ee se eee 369

TV GUIDE Manhattan Cable TV Edition, Dec. 12

ES, «sek ce ke a alle ahi die bck aie a in eh 370

Petition for Reconsideration of the NYNEX Telephone Com-

MED o.0'0.080 09-06 6506 CR OER ee Cae Sen ee es 375

Opposition of Time Warner Entertainment Company, L.P. to

the Petition for Reconsideration of the NYNEX Tele-

ee re ere 379

Reply of the NYNEX Telephone Companies to Comments

Opposing their Petition for Reconsideration ........ 382

The following opinions, orders, and parts of the record have

in full without deletion at the following pages as appendices to the

printed petition for writ of certiorari in No. 95-124:

First Report and Order in the Matter of Implementation of

Section 10 of the Cable Consumer Protection and Compe-

TE «10008 apes etane Wann eee « 128a

Second Report and Order in the Matter of Implementation

of Section 10 of the Cable Consumer Protection and

TCE, é ieee eeeeneeeecess 178a

Panel Opinion of the Court of Appeals for the District of

Cn .c.éeneuNbbbadéeaaeee nes 90a

In Banc Per Curiam Order of the Court of Appeals for the

District of Columbia Circuit Vacating the Panel

DT “Geudtens 1040 ose Ks UE 4S S 6 4 0 89a

In Banc Opinion of the Court of Appeals for the District of

CO ee ro ae ee ee 2a

In Banc Per Curiam Order of the Court of Appeals for the

District of Columbia Circuit Staying the Issuance of the

RELEVANT DOCKET ENTRIES

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 93-1169, 93-1171, 93-1270, 93-1276

February 22, 1993 Petitions for review filed in nos. 93-1169

and 93-1171.

April 7, 1993 Stay of First Report and Order granted.

April 15, 1993 Petition for review filed in no. 93-1270.

April 20, 1993 Petition for review filed in no. 93-1276.

May 7, 1993 Stay of Second Report and Order granted.

November 23, 1993 Opinion and judgment filed.

February 16, 1994 Suggestion for rehearing in banc granted

and judgment vacated.

June 6, 1995 In banc opinion and judgment filed.

July 10, 1995 Stay of issuance of mandate granted.

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C.

Implementation of Section 10 of

)

the Consumer Protection )

and Competition Act of 1992 ) MM Docket

) No. 92-258

Indecent Programming and Other )

Types of Materials on Cable )

Access Channels )

I. The Commission Must Clarify That Voluntary Prohibitions

On Leased Access Programming Are Based On The

emt Bn Se omag ttn ten se: hora

The first provision of Section 10 authorizes cable operators to

impose certain voluntary restrictions on leased access programming.

The Notice of Proposed Rulemaking (“NPRM”) suggests this area

is self-executing and requires no Commission action. But the

Commission could greatly advance the public interest by taking this

opportunity to clarify the statutory language in furtherance of

Congress’ underlying objectives.

There are several critical points that the Commission should

expand upon. First, the statute wisely provides that any decision

about the carriage of “offensive” programming is to be made on the

basis of the operator’s “judgment.” The critical question is nor

whether a particular program is “obscene . . . lewd, lascivious,

filthy, or indecent or otherwise unprotected by the Constitution of

the United States,” but whether the cable operator believes the

programming falls into that category.

* ” *

Despite the concerns underlying Section 10, most cable

operators carry relatively little indecent programming on leased

access channels. Although the statute talks about a single blocked

“channel,” the Commission should clarify that so long as the

offensive programming is blocked, the channel need not be blocked

on a 24 hour per day basis. Rather than devote an entire channel

for this purpose, an operator might chose to maintain a single leased

access channel and simply scramble the “indecent” portions of the

programming to every subscriber who has not affirmatively

requested it. We submit this approach is entirely consistent with

Section 10(b), and enhances utilization limited channel capacity.

Finally, the Commission should make clear that the costs

associated with establishing and maintaining a “blocked” channel

should be borne by leased access providers of indecent

programming. The Commission should incorporate that finding

into its future rulemaking regarding reasonable rates, terms, and

conditions for leased access use.

* * aa

Respectfully submitted,

Acton Corp.

Allen’s Television Cable Service, Inc.

Cable Television Association of

Maryland, Delaware and District

of Columbia

Century Communications Corp.

Columbia International, Inc.

Florida Cable Television Association

Gilmer Cable Television Company,

Inc.

Helicon Corp.

Jones Intercable, Inc.

KBLCOM Inc.

Monmouth Cablevision Assoc.

TeleCable Corporation

Texas Cable TV Association

United Video Cablevision, Inc.

West Virginia Cable Television

Association

By /s/

Paul Glist

Steven J. Horvitz

Susan Whelan Westfall

COLE, RAYWID &

BRAVERMAN

1919 Pennslyvania Ave., NW

Suite 200

Washington, DC 20006

202/659-9750

December 7, 1992

Table of Contents Omitted

| FCC Caption Omitted

JOINT COMMENTS OF THE ALLIANCE FOR

COMMUNITY MEDIA, THE ALLIANCE FOR

COMMUNICATIONS DEMOCRACY, THE AMERICAN

CIVIL LIBERTIES UNION AND PEOPLE FOR THE

AMERICAN WAY

These comments are being jointly filed by The Alliance for

Community Media (formerly the National Federation of Local

Cable Programmers), The Alliance for Communications

Democracy, The American Civil Liberties Union, and People for

the American Way. These four non-profit corporations represent

organizations and individuals who use public, educational or

governmental (“PEG”) and leased access channels either as

programmers or at viewers, Their comments are submitted in

response to the Notice of Proposed Rulemaking adopted by the

Commission on November 5, 1992 and released on November 10,

1992, whereby the Commission proposes to promulgate a rule

pursuant to Section 10 of the Cable Television Consumer Protection

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

(1992). The Commission’s Proposed Rule is contained in Appendix

A of its Notice. It would place restrictions on PEG programming

that contains “obscene material, sexually explicit conduct, or

material soliciting or promoting unlawful conduct.” It would also

place restrictions on allegedly “indecent” programming on leased

access channels.

BACKGROUND

These commenters fully support the goal that apparently

underlies Section 10 and the Commission’s Proposed Rule — the

protection of minors from cable programming that their parents find

unsuitable for children. However, for a variety of reasons, we

cannot support the regulatory mechanism chosen by Congress and

the Commission. Before stating our objections, we place Section

10 and the Commission’s Proposed Rule in context.

A. The 1984 Act. — The Cable Communications Policy Act of

1984 (“the 1984 Act”) added Title VI to the Communications Act

of 1934. As Congress’s first direct legislation concerning cable, the

1984 Act was in part concerned with deregulating cable rates,

which was thought necessary to encourage prosperity in an

emerging industry. See generally H.R. Rep. No. 628, 102d Cong.,

2d Sess. 28-29 (1992).

At the same time, Congress was equally concerned with

preventing local cable operators from exercising sole programming

choice. These operators are often owned by media conglomerates

that also have ownership interests in the programmers chosen by

their cable subsidiaries. Even when programmer ownership is not

an issue, “cable conglomerates have shown themselves to be

capable of using their dominant position in electronic media

distribution to obtain economic advantages from those program

channels they agree to deliver, and to allow these financial

considerations to dictate which particular communication options to

offer the public they ostensibly serve.” Don R. LeDuc,

“Unbundling” the Channels: A Functional Approach to Cable TV

Legal Analysis, 41 Fed. Comm. L.J. 1, 8 (1988).

To that end, Congress incorporated into the 1984 Act leased

access provisions that require a cable operator to “designate channel

capacity for commercial use by persons unaffiliated with the

operator.” 47 U.S.C. § 532(b)(1). This legislation specified that

“[a] cable operator shall not exercise any editorial control over any

video programming provided” over leased access channels. 47

U.S.C. § 532(c)(2). According to the legislative history of that

Act,

“A requirement that channels be set aside for third-party

commercial access separates editorial control over a limited

number of cable channels from the ownership of the cable

system itself. Such a requirement is fundamental to the goal of

providing subscribers with the diversity of information sources

intended by the First Amendment.” H.R. Rep. No. 934, 98th

Cong., 2d Sess. 31 (1984), reprinted in 1984 U.S.C.C.A.N.

4655, 4668.

Congress was not only worried about financial disincentives.

Leased access was also viewed as a way to insure subscribers

“programming which represents a social or political viewpoint that

a cable operator does not wish to disseminate.” Jd. at 48, 1984

U.S.C.C.A.N. at 4685.

The 1984 Act also included provisions that allow local

franchising authorities to establish PEG access channels. By then,

PEG had a long history of having been incorporated by local

authorities into their franchise agreements. The earliest public

access channels had appeared in the early 1960’s, see Daniel L.

Brenner et al., Cable Television and Other Nonbroadcast Video

§ 6.04[2], at 6-32 (1992), and by 1969 the Commission had issued

an order in part “encouraging” PEG, FCC 69-1170, 20 F.C.C.2d

201, 206-07 (1969). The 1984 Act thus did not create PEG; rather,

it ratified the efforts in this area by localities across the country,

and it assured other franchising authorities of their ability to require

PEG channels in their franchise agreements.

PEG, as is true of leased access, addresses the bottlenecking

that occurs when operators impede subscriber access to the full

variety of cable programming, whether out of commercial concerns

or hostility to diverse programming. Congress therefore specified

that “a cable operator shall not exercise any editorial control over

any public, educational, or governmental use of channel capacity.”

47 U.S.C. § 531(e). In doing so, Congress purposefully recognized

that PEG was a public forum:

ae ae

“Public access channels are often the video equivalent of the

speaker’s soap box or the electronic parallel to the printed

leaflet. They provide groups and individuals who generally

have not had access to the electronic media with the opportunity

to become sources of information in the electronic marketplace

of ideas.” H.R. Rep. No. 934, supra, at 30, 1984

U.S.C.C.A.N. at 4667.

While thus seeking to assure the greatest diversity of cable

programs, the 1984 Act was also concerned with protecting

unsupervised children from all types of cable programming — be it

on general or access channels — that their parents found unsuitable.

Congress therefore enacted a “lockbox” provision, now codified at

47 U.S.C. § 544(d)(2)(A), which requires all cable operators to

make lockboxes available to their subscribers. According to the

legislative history of the 1984 Act, Congress

“recognize[d] with respect to cable the need to provide for the

restriction, within constitutionally permissible grounds, on the

availability of programming, which might not be obscene, but

is nonetheless indecent, if children are going to be adequately

protected from exposure to such material. Thus, [47 U.S.C.

§ 544(d)(2)(A)] provides one method for dealing with obscene

or indecent programming by requiring every cable operator to

provide to any subscriber upon request a device (often referred

to as a ‘lock box’) which is capable of restricting the viewing,

during any period selected by the subscriber, of a cable service

which contains obscene or indecent programming. The

Committee believes that the requirement that these devices be

furnished (by sale or lease) by the cable operator provides one

means to effectively restrict the availability of such

programming, particularly with respect to child viewers,

without infringing the First Amendment rights of the cable

operator, the cable programmer, or other cable viewers.” /d.

at 70, 1984 U.S.C.C.A.N. at 4707.

Thus, in 1984, Congress specifically accounted for the first

amendment rights of programmers and viewers when it adopted

lockboxes as the least restrictive means for effectively protecting

children. Pursuant to court order, see ACLU v. FCC, 823 F.2d

1554, 1579 (D.C. Cir. 1987). cert. denied, 485 U.S. 959 (1988),

the Commission has subsequently required that lockboxes be

capable of blocking all channels carried on a cable system,

including PEG and leased access channels. See FCC 87-306, 2

F.C.C.R. 5893, 4 9, at 5894 (1987).

B. PEG and Leased Access.'— PEG access channels have by

any measure abundantly fulfilled the hope that they would become

a robust “electronic marketplace of ideas” in those communities

where they are provided for and supported with adequate

resources.’ First, PEG programming is a widely diverse mix from

numerous sources. Some 2,000 centers produce about 10,000 hours

of local programming a week. Cable Television Regulation (Part

2), 1990: Hearings on H.R. 4415 Before the U.S. House of

Representatives Subcomm. on Telecommunications and Finance of

the Comm. on Energy and Commerce, 101st Cong., 2d Sess. (1990)

(testimony of Sharon Ingraham, on behalf of the National

Federation of Local Cable Programmers). An annual video festival

known as the Hometown USA Video Festival is dedicated to

showcasing the best of local origination and PEG channel

productions, and in 1990 it attracted 2,100 entries from 360 cities

in 41 states. Patricia Aufderheide, Cable Television and the Public

Interest, 42 J. Comm. 52, 58 (1992) [hereinafter Cable Television]

(App., Exh. A).

Second, access channels are widely viewed in those

communities where they are available. Approximately 30 million

' The description that follows is based in very large measure on Patricia

Aufderheide, Cable Television and the Public Interest, 42 J. Comm. 52,

58-60 (1992), which is included in the Appendix that is presented with

these comments (hereafter, “App.”) as Exhibit A. Dr. Aufderheide teaches

in the School of Communication at The American University of

Washington, D.C., and greatly assisted in the preparation of these

comments

2 The robust quality of access programming has attracted a great deal

of press attention. See App., Exh. B & C (examples of articles). Indeed,

cable operators have often touted access channels when trumpeting the

public good furthered by their systems. See App., Exh. D-G.

homes or 70 million people are provided with an access channel on

their cable system. Margie Nicholson, Cable Access:

Community Communications Resource for Nonprofits, Bull.

“One multisite study shows that 47% of cable viewers watch

community access channels, a quarter of them at least three

times in two weeks; 46% say it was “somewhat” to “very”

important in deciding to subscribe to or remain with cable.

{Frank Jamison, Community Programming Viewership Study

Composite Profile (1987) (App., Exh. H).] Another study,

commissioned by Access Sacramento, showed that two-thirds of

cable subscribers who knew about the channel watched it.

[Access Sacramento, 199] Audience Survey Findings Report

(1991) (App., Exh. I).]” Cable Television, supra, at 58.

Similarly, Northwest Community Television found that 50% of

subscribers who could receive their programming watched it

“frequent{ly)” or “occasionalfly],” and 46% rated this

programming “very valuable” or “somewhat valuable.” William

Morris, Northwest Community Television Subscriber Study (1992)

(App., Exh. J).

Finally, PEG programming speaks to a multitude of vital local

issues. Government and educational channels may feature such

specialized studies, such as an examination of the immigrant

experience

low cost spay/neuter program, id. at 51. A musical

education series is sponsored by the Los Angeles Jazz Society. Jd.

at 39.

Moreover, PEG access channels are often the forum for core

political debate. The Wrightwood Improvement Association of

Chicago, for instance, used public access to marshal support for a

“home equity” referendum. /d. at 30. In Tampa, Florida, public

concerned about a county tax that was defeated in a record voter

turnout. Cable Television, supra, at 59. “Also in Tampa, the

educational cable access system's airing of school board meetings

has resulted in vastly increased public contact with school board

members.” Jd. at 59. In New York City, Paper Tiger television

regularly produces programs that are sharply critical of the media.

Id. at 60-61.

Austin, Texas, is home of one of access cable’s oldest public

affairs talk shows. Cable Television, supra, at 60. The League of

Women Voters of Bucks County, Pennsylvania produces the

ongoing video documentary series, “AT ISSUE.” Cable Access,

supra, at 57. Public access has also been host to viewpoints as

diverse as those of leftist critics of the Gulf War (in Deep Dish

TV’s national series) and those of conservative Rep. Newt Gingrich

(R-GA), who hosted half-hour shows produced by the Washington,

DC-based American Citizen’s Television (ACTV). Cable

Television, supra, at 60-61.

Given the vital role that PEG has assumed, it is not surprising

to find that its programming is at times controversial. “or example,

the Ku Klux Kian has circulated national programs for local

viewing. George H. Shapiro, Litigation Concerning Challenges to

the Franchise Process, Programming and Access Channel

Requirements, and Franchise Fees, in 1 Cable Television Law 1990:

Revisiting the Cable Act 341, § Ill, { F., at 409 (Frank W. Lloyd

ed. 1990). In the spirit of robust debate that is appropriate to an

open electronic marketplace of ideas, the Klan programs spurred

civil liberty and ethnic minority organizations to use the access

service in response, which these groups have continued to do.

Daniel L. Brenner, supra, § 604[7]. at 642.2 (1992).

Leased access has not to date been as successful as PEG. Cable

operators have exercised their market power to price leased access

out of the range of most programmers, as the Senate recognized in

the legislative history of the 1992 Act:

“The cable operator is almost certain to have interests that

clash with that of the programmer seeking to use leased access

channels. If their interests were similar, the operator would

have been more than willing to carry the programmer on

regular cable channels. The operator thus has already decided

for any number of reasons not to carry the programmer. For

compete with programming that the [operator] owns or

controls. To permit the operator to establish the leased access

rate thus makes little sense.” S. Rep. No. 92, 102d Cong., Ist

Sess. 31 (1991).

Congress thus found that leased access was undermined by the

system of operator-established rates that existed from 1984 until

passage of the 1992 Act.

C. The 1992 Act. — During the period of federally mandated

rate deregulation ushered in by the 1984 Act, the cable industry

experienced tremendous growth. In the seven years following

passage of the 1984 Act, cable penetration increased from thirty-

seven to sixty-one percent of television households; monthly

revenue increased from $18.94 to $31.51 per subscriber; and

advertising revenue increased from $600 million to $3 billion.

H.R. Rep. No. 628, supra, at 29.

Cable’s growth spurred renewed congressional scrutiny of the

industry. Since the beginning of October 1989, for example, the

Senate Committee on Commerce, Science, and Transportation held

eleven hearings on cable television. S. Rep. No. 92, supra, at 3.

This oversight culminated in 1992 when Congress overrode a

presidential veto and enacted the Cable Television Consumer

Protection and Competition Act of 1992 (“the 1992 Act” or “the

Act”).

Neither of the bills that originated the 1992 Act contained any

provision that even remotely resembles what is now Section 10.

Rather, both bills, as well as the hearings and committee reports on

each of them, where predominantly concerned with issues related

to rate re-regulation, local “must carry” rules, customer service

practices, and industry integration and concentration. See S. Rep.

No. 92, supra; H.R. Rep. No. 628, supra.

Portions of the original bills did evince a concern for leased

access. Thus, what is now Section 9 of the Act strengthens leased

access by introducing rate regulation for those channels, under

which the Commission must establish maximum reasonable rates

and reasonable terms and conditions for carriage. As the legislative

history of this provision discloses, rate regulation is expected to

“increas[e] certainty and the use of these channels.” S. Rep. No.

92, supra, at 32. Similarly, by encouraging the use of leased

access by “programming source(s] which devote[ ] substantially al!

of [their] programming to coverage of minority viewpoints, or to

programming directed at members of minority groups,” Section 9(c)

of the 1992 Act further “assure[s] that the widest possible diversity

of information sources are made available to the public,” S. Rep.

No. 92, supra, at 29 (citation omitted).

D. Pertinent Amendments in the 1992 Act. — After both

were to become the 1992 Act, those bills were modified by two

amendments directed at controlling the content of cablecasts that

were sexually explicit or otherwise deemed to be objectionable.

First, both the House and Senate bills were modified by what was

to become Section 15 of the Act. 138 Cong. Rec. § 589 (daily ed.

Jan. 29, 1992); id. at H6528-30 (daily ed. July 23, 1992). This

provision is entitled “Notice to Cable Subscribers of Unsolicited

Sexually Explicit Programs.” It requires a cable operator to notify

subscribers at least thirty days before they are provided any

“premium channel” — defined as a pay service that offers movies

rated by the Motion Picture Association of America (“MPAA”) X,

R or NC-17 — as part of a free promotion. The subscriber may

then request that the operator block the transmission of this channel

to his home, and the operator must comply.

The legislative history of Section 15 discloses that the

provisions of this amendment were purposefully crafted to be

similar to the subscriber-initiated lockbox requirement of 47 U.S.C.

§ 544(d)(2)(A), which the viewer can use to block programs on pre-

existing channels. As the Senate sponsor recognized, under Section

15, “[t}he subscriber must call the cable company and ask that the

channel be blocked or that the cable company provide a lockout

device.” 138 Cong. Rec. § 589 (daily ed. Jan. 29, 1992)

(statement of Sen. Helms).’

The second such amendment was Section 10. In contrast to

Section 15, Section 10 did not arise as an amendment in both

houses of Congress. Rather, it was offered in three different parts

as floor amendments on the last legislative day before the Senate

approved its bill. Senator Helms first proposed subsections (a) and

(b) with regard to leased access, Id. at § 646 (daily ed. Jan. 30,

1992). Senator Fowler immediately added subsection (c) for PEG.

Id. at § 649. Some time later, Senator Helms added subsection (d)

which abrogates statutory immunity for cable operators if they are

found to have carried on PEG or leased access any program that

“involves obscene material.” Jd. at S652. No provisions similar

to any of Section 10’s four subsections were introduced in the

House.

Also in contrast to Section 15, Section 10’s provisions are not

even remotely analogous to lockboxes or any other system of

subscriber-initiated blocking. Rather than relying on subscriber-

initiated blocking, Section 10 allows an operator to prohibit even

protected speech, without regard to whether subscribers want to see

it or not. It therefore differs from a system of subscriber-initiated

blocking, which allows parents to decide what (if any) programming

to screen from their children.

For leased access, Section 10(a) allows cable operators to

prohibit programming that the operator “reasonably believes” is

> We note that Section 15's system of subscriber-initiated blocking is

problematic for a reason unrelated to the concerns of these Comments.

by the first amendment, Motion Picture Ass'n., v. Specter, 315 F. Supp.

824, 825 (E.D. Pa. 1970), government regulations may not rely upon it,

Swope v. Lubbers, 560 F. Supp. 1328, 1334 (W.D. Mich. 1983).

indecent. If the operator does not prohibit such programming on

leased access channels, the operator is required by Section 10(b) to

place all indecent programs (as defined by the Commission and self-

identified by the programmer) on a single channel and to block that

channel unless a subscriber requests access in writing. The

Commission is required to promulgate leased access regulations

within 120 days.

For PEG access, Section 10 follows a different approach.

Section 10(c) requires the Commission to promulgate regulations

within 180 days that will enable a cable operator to prohibit not just

sexually explicit programming, but also “material soliciting or

promoting unlawful conduct.”

In the case of both PEG and leased access, Section 10(d)

abrogates a statutory immunity and allows a cable programmer to

be held liable if it carries any program that “involves obscene

material.” Liability may be imposed whether or not the operator

has exercised the authority to prohibit programming given to it

under subsections (a) and (c).

In sum, although Section 10 treats PEG and leased access

differently, for both types of channels it allows an outright ban on

purportedly offensive programming. Rather than directly instituting

these bans, however, Section 10 follows a bifurcated approach.

First, subsections (a) and (c) allow cable operators to ban the

disfavored programming. Second, subsection (d) waives the

statutory immunity otherwise available to those operators if they fail

to ban programming that “involves obscene material.”

Section 10 and its legislative history are remarkably void of any

reference to the lockbox requirement of the 1984 Act, now codified

at 47 U.S.C. § 544(d)(2)(4). The congressional record thus

contains no legislative findings to support a conclusion that

lockboxes have somehow become ineffective in achieving the

interest of protecting minors. Rather, the portions of the bill that

were enacted as Section 10 were introduced on the floor of the

Senate without a committee report on their purpose, justification or

likely effect. Even then, no Senator so much as purported to

present a considered judgment with respect to how often or to what

extent minors were being exposed to cablecasts that their parents

considered unsuitable, despite the lockbox requirement.

E. The Commission's Proposed Bule.— On November 5,

1992, the Commission instituted the instant docket in order to

promulgate a rule under Section 10. Appendix A of its Notice of

Proposed Rule Making presents the Commission's Proposed Rule,

which is intended to implement Section 10. In large measure, the

commission’s proposed Rule merely reiterates the provisions of

Section 10's first three subsections, but it omits any construction of

subsection (d)’s imposition of liability.

The Commission’s Proposed Rule is accompanied by a

prefatory Notice that generally solicits suggestions for regulations

not contained in the Proposed Rule. For example, with respect to

the content-based regulation of PEG, it requests commenters to

address “whether our regulations should provide for any additional!

matters not expressly addressed in the statute,” and it “invite[s)

interested persons to comment on these and any other aspects that

they believe would be germane to proper implementation of this

provision.” Notice 4 14, at 7. See also id. 4 12, at 6 (similar

language with respect to leased access). It also speaks in general

terms about other possible regulations that are not a part of the

Proposed Rule.

In contrast to the congressional record, the Commission's

Notice does recognize that lockboxes remain an effective means to

“control access to other cable services on the system or to limit

access to [an unblocked leased access channel] to others in the

household.” Notice 49, at 5. It is nonetheless similar to the

congressional record in that it, too, is void of either evidence or

reason to support a conclusion that lockboxes have somehow

become ineffective in achieving the interest of protecting minors

from programming that their parents consider unsuitable for

children.

SUMMARY

Because the first amendment commands that “Congress shal!

make no law .. . abridging the freedom of speech,” the federal

courts have held that the power to regulate “must be so exercised

aS not, in attaining a permissible end, unduly to infringe on the

protected freedom.” Cantwell v. Connecticut, 310 U.S. 296, 304

(1940). Section 10 and the Commission’s Proposed Rule violates

this basic tenet, as we discuss in detail below.

As an initial matter, Section 10 does not escape first amendment

scrutiny merely because the programming standards contained in

subsections (a) and (c) are expressed in permissive terms. State

action is implicated because this federal legislation impinges on

locally-created PEG and leased access public fora. The leased

access blocking requirements of subsection (b) also demonstrates

direct state action. Additionally, the threat of liability contained in

subsection (d) exercises coercive government power over the

operator, thereby “convert[ing] its otherwise private conduct into

state action.” Carlin Communications, Inc. v. Mountain States Tel.

& Tel. Co., 827 F.2d 1291, 1295 (9th Cir. 1987), cert. denied, 485

U.S. 1029 (1988).

Even if the prohibitions allowed by Section 10 were not

considered state action, they would still be subject to the first

amendment, for they impinge on a public forum. Local franchising

authorities have, with Congress’s approval, “intentionally open[ed]

a nontraditional forum for public discourse” and created a public

forum for “the free exchange of ideas.” International Soc'y for

Krishna Consciousness, Inc. v. Lee, 112 S. Ct. 2701, 2706 (1992).

Even private restrictions on access channels are therefore subject to

first amendment scrutiny.‘

Under appropriate first amendment analysis, Section 10 is itself

unconstitutional, for it fails the least restrictive means test. Federal

law already requires cable operators to make lockboxes available,

47 U.S.C. § 544(d)(2)(A), and these have been recognized by the

courts and the Commission as an effective and non-intrusive means

of controlling the access of unsupervised children to programming

* Missouri Knights of the Ku Klux Klan v. Kansas City, Mo., 723

F. Supp. 1347 (W.D. Mo. 1989).

that their parents find inappropriate.’ Content-based restrictions

are therefore unconstitutional .°

By largely reiterating the statute, the Commission has failed to

propose constitutional regulations under Section 10. First, the

Commission’s Notice of Proposed Rulemaking is completely devoid

of any consideration of less restrictive means. The ban it envisions

on all sexually explicit and otherwise assertedly objectionable

programming impermissibly reduces adults to viewing only those

access programs that are suitable for a child. For that reason, such

bans have always failed, even when advanced as a scheme to

protect minors from television broadcasts.’ Moreover, even if such

a ban could be justified, it is unnecessarily restrictive in the case of

cable. The Commission has often determined that the far less

restrictive option of lockboxes sufficiently guards children from

sexually explicit programming, and it has been supported in this

determination by Congress and the courts. However, the Notice

fails to offer a reason for the Commission’s change in position, and

no facts are presented on the record to support that change.

Second, because it is woefully underinclusive, the Proposed

Rule cannot be justified as necessary to serve a compelling state

interest. It mirrors the statute’s concern for programming only on

PEG and leased access channels, without preventing other sexually

explicit or otherwise objectionable cablecasts from reaching the

unsupervised children who are assertedly being protected. This is

especially suspect because Congress has recognized the existence of

other forms of sexually explicit cablecasts, but it has not given the

* ACLU v. FCC, 823 F.2d 1554, 1579 (D.C. Cir. 1987), cert. denied,

485 U.S. 959 (1988); FCC 87-306, 2 F.C.C.R. 5893, ¢ 9, at 5894 (1987).

® See, e.g., Cruz v. Ferre, 755 F.2d 1415, 1419 (11th Cir. 1985);

Community Television v. Roy City, 555 F. Supp. 1164 (D. Utah 1982);

Home Box Office, Inc. v. Wilkinson, 531 F. Supp. 987 (D. Utah 1982).

’ Action for Children’s Television v. FCC, 932 F.2d 1504, 1508-09

(D.C. Cir. 1991), cert. denied, 112 S. Ct. 1281, and cert. denied, 112

S. Ct. 1282 (1992). See generally Butler v. Michigan, 352 U.S. 380, 383

(1957).

Commission the power to impose similar restrictions on them. In

the end, therefore, the Commission is constrained from effectively

implementing the goal that purports to justify a content-based

restriction on speech. Instead, its Proposed Rule burdens only

those who speak on PEG and leased access channels — socicty’s

less powerful interests, including minorities, who otherwise have no

access to the electronic media.

Third, even as a child protection measure, the standard for

prohibiting PEG programming suffers from overbreadth. It is not

limited to the “patently offensive” sexual material that constitutes

indecency, and it prohibits “material soliciting or promoting

unlawful conduct.” The Commission itself has indicated that this

standard must be narrowed, see Notice at 6 n.11, but it has not

done so in the Proposed Rule, see id. App. A. In the same vein,

the immunity waiver provision of Section 10(d) is overbroad

because it subjects cable operators to liability for carrying not only

obscene programs, but also those that “involve[ ]” obscenity. The

Commission has similarly failed to use its interpretive powers to

narrow this vague statutory provision.

Finally, the Commission has not proposed appropriate

procedures for the prior imposition of these content-based

restrictions on speech. Although not always invalid per se, content-

based prior restraints must be accompanied by a highly protective

system of judicial safeguards. Because the provision for imposing

liability on cable operators is vague, it, too, should only be imposed

after a court has previously found a program obscene. Such

procedures are totally absent from the Proposed Rule, however.

The Commission has not exercised its interpretive power to

narrowly construe Section 10 to avoid these constitutional

deficiencies. Rather, it has at best indicated that such steps would

be appropriate without incorporating corresponding regulatory

—language into the Proposed Rule. See, e.g., Notice at 6 n.11

(suggesting basis for narrowing statutory prohibition standard for

PEG access). Indeed, the Commission has indicated that it intends

to incorporate a host of other measures into its Proposed Rule, but

it has not delineated the breadth of those measures. see, ¢.g., id.

414, at 7 (“Commenters should also address whether our

regulations should provide for any additional measures not expressly

addressed in the statute.”). In any circumstance, this rulemaking

approach prejudices the public’s right to comment on regulatory

proposals. It should be especially disfavored in this situation,

where core first amendment rights are threatened.

INTERESTS OF COMMENTERS

The Alliance for Community Media, the Alliance for

Communications Democracy, the American Civil Liberties Union,

and People for the American Way are non-profit corporations that

represent organizations and individuals who use PEG and leased

access channels both as programmers and as viewers. The

comments that they jointly swhmit therefore reflect the unique

shared perspective of organizations whose members have a direct

interest in assuring that cable operators use the public rights of way

in a manner consistent with the interests of the entire community.

The Alliance for Community Media (formerly the National

Federation of Local Cable Programmers) is dedicated to both

ensuring that people have access to cable and other electronic media

and promoting community uses of such media. It is a national

membership organization comprised of more than twelve-hundred

Organizations and individuals in more than seven-hundred

communities, including volunteer access producers, access center

managers and staff members, local cable advisory board members,

city cable officials, cable company staff working in community

programming, and others interested in local programming around

the country. The Alliance for Community Media assists its

members in all aspects of community programming over access

channels, from production and operations to regulatory oversight.

The Alliance for Communications Democracy supports efforts

to protect the rights of the public to speak via cable, and it

promotes the availability of the widest possible diversity of

information sources and services to the public. The Board of

Directors of the organization is composed of representatives of

nonprofit access corporations in communities around the country,"

who together have helped thousands of members of the public use

the access channels that have been established in their communities.

The American Civil Liberties Union (“the ACLU”) is a

nationwide, nonpartisan organization with nearly 300,000 members,

many of whom are viewers of PEG and leased access cable

channels. It is dedicated to the protection and promotion of

individual rights and liberties, primary among them freedom of

speech. In 1990 the ACLU established an Arts Censorship Project

specifically to combat an increased climate of censorship in the

United States, including in particular efforts to suppress creative

expression and information about sexuality and sexual orientation.

People for the American Way (“People For”) is a nonpartisan,

education-oriented citizens’ organization established to promote and

protect civil and constitutional rights, including first amendment

freedoms. Founded in 1980 by a group of religious, civic and

education leaders devoted to our nation’s heritage of tolerance,

pluralism and liberty, People For now has over 300,000 members

nationwide. Many of People For’s members subscribe to cable

television and watch programs on PEG and leased access channels.

People For’s members have specific and personal interests in

promoting the free flow of information and in receiving uncensored

cable programming. People For seeks to protect the interests of its

members, as well as the broader interest in preventing censorship

of expression protected by the first amendment.

Although the commenters generally support the goal of

protecting unsupervised children from cable programming that their

parents find inappropriate, we cannot support the commission's

Proposed Rule. The content-based restrictions that the Commission

proposes will prove seriously disruptive to access programming and

the value that it brings to local communities across the country.

* These communities include Chicago, Illinois; Montgomery County,

Maryland; Boston, Massachusetts; Grand Rapids, Michigan; Manhattan

and Staten Island, New York; Columbus, Ohio; Tucson, Arizona; and the

State of Hawaii.

Moreover, the Proposed Rule will work this mischief without

adding any*hing to the already effective requirement that cable

operators prowide lockboxes to protect unsupervised children.

Firs: “xe /20 sestriction on “material soliciting or promoting

unlawful conduct” presents special problems for programming that

engages in core political speech.’ For example, in Grand Rapids,

Michigan, the producers of “Lies of Our Times” have endorsed

sanctuary for Latin American refugees and encouraged blockades of

government offices in protest of various official positions.

Similarly, “The Flying Focus Video Collective” of Portland,

Oregon has hosted a speaker who advocated direct and illegal action

to protect old timber growth. Several programs have advocated the

decriminalization of marijuana, including “Libertarian Conspiracy”

of Sacramento, California, “Libertarian Review” and “Time for

Hemp” in Tucson, Arizona, and “Cannabis” in Kalamazoo,

Michigan. Patricia Aufderheide, Public Access Cable

Programming, Controversial Speech, and Free Expression, 4-5

(Nov. 1992) [hereinafter Public Access] (App., Exh. L).

Second, the restriction on sexually explicit programming would

curtail programming on health education and sex education,

including programs that deal frankly with AIDS. This would

include programming directed at both the gay minority and

heterosexuals.

Examples of each of these types of programming are literally

too extensive to document here. For example, Cambridge

Community Television in Massachusetts could be faced with

restrictions on a program entitled “Truth or Consequences: A Guide

to Safe Sex at MIT.” Id. at 4. So could Kalamazoo Community

Access Center of Michigan for an AIDS prevention special that

involved role-playing. Jd. Similarly, the Northern Virginia Youth

Services Coalition produces the weekly cable access series, “Focus

* — The description that follows is based in very large measure on Public

Access Cable Programming, Controversial Speech and Free Expression, a

draft article by Dr. Aufderheide, that is included in the Appendix as

Exhibit L.

on Youth.” In one program on AIDS, two professionals role-

playing a dating situation were asked, “If you were dating, how

would you get your partner to reveal his sexual history?” Cable

Access, supra, at 49.

A video of a home birth in Amherst, Massachusetts might have

fallen under scrutiny, as might have “Desperately Seeking Susan,”

a program in Olympia, Washington that is hosted by a therapist and

includes frank discussion of sexual behavior and sexual

dysfunctions. Public Access, supra, at 4. The same is true for the

“HealthVisions” series, produced by the community and

professional education department of Good Samaritan Hospital and

Medical Center of Portland, Oregon. Pe ge in the series have

included “PMS: Breaking the Cycle” and “Understanding

Impotence: A Common and Treatable Problem.” Cable Access,

supra, at 37.

Moreover, some programs would face restrictions under either

or both of the “unlawful” and “explicit” standards. For example,

access centers in Forest Park Ohio, Fort Wayne, Indiana,

Sacramento, California, Kalamazoo, Michigan, and Portland,

Oregon have aired programs, some produced by Operation Rescue,

that have opposed abortion. Some of these programs have either

encouraged blocking access to abortion clinics or have contained

possibly offensive explicit images, or both. Public Access, supra,

at 5.

Finally, live programming, including call-in programs, will be

particularly hindered by the commission’s proposed Rule. These

shows fulfill a unique role by both making cable immediately

interactive and allowing disparate minority groups to communicate

with each other through that medium. It is in the nature of these

programs to be unpredictable, however, especially when they

concern sensitive or hotly-debated topics. Because programmers of

these types of shows cannot assure operators of their content, the

fear of liability is especially likely to prompt their prohibition.

Several shows concerning sex education could thus be

hampered. For example, one segment of “AIDS Call-in Live,”

from Chicago, included a seventeen-year-old girl asking how to

respond to a boyfriend who assured her that they did not need to

use condoms because he was loyal to her. Speakers may also hold

up items such as condoms to explain their use. /d. at 8.

Health education shows could also have the same problems, For

example, “Health in America” is produced monthly in Sacramento

and discusses alternative and holistic health-care options. It has

included graphic images of women with mastectomies and damaged

breast implants. Jd. at 8.

Finally, topical call-in programs would also be threatened.

Sacramento aired “Live Wire” within hours of the Rodney King

verdict, on which callers had their volatile moments. And access

programs in Oregon hotly debated that state’s ballot initiative that

would have criminalized some homosexual behavior. /d. at 5, 8.

No one can dispute the value of these programs to an adult

viewing audience. Even if some parents feel that unsupervised

minors should not be given free access to all of them, it ill serves

society to reduce adults to viewing cable that is only fit for

children. For that reason, we see lockboxes as the alternative that

is superior to allowing the prohibition of this type of programming.

Lockboxes allow adults both to control children’s access and to

partake of the robust speech and debate being aired on access

channels. They also allow parents to decide for themselves whether

or not their children will benefit from receiving information on

sensitive topics, and they allow access to be granted for just the

space of one program. Bans and blocking schemes offer none of

these advantages, yet the congressional record and the

Commission’s Notice both disclose that hardly a whisper of

attention has been paid to the lockbox option.

I. SECTION 10 VIOLATES THE FIRST AMENDMENT

There can be little doubt that the purpose and effect of Section

10 of the Act is to establish a system of censorship that violates the

first amendment rights of those who wish to cablecast on PEG and

leased access channels and those who wish to view the censored

programming. As such, if the Commission is to implement this

section of the Act in haec verba (as its Proposed Rule suggests),

any final rule that it may promulgate in these proceedings will itself

be unconstitutional. We discuss the various constitutional

difficulties that the Commission's Proposed Rule presents in the

sections that follow this one.

This section focuses on the statute itself, and our purpose is

twofold. First, we demonstrate the propriety of applying first

amendment analysis to the content-based restrictions on free

expression that are either enshrined in Section 10 or called for by

it. Second, we show that Section 10’s regulation of non-obscene

cable programming is necessarily unconstitutional.

A. STATE ACTION

As an initial matter, we are aware of certain statements in the

floor debates concerning Section 10 that attempt to categorize the

restrictions on speech contained in that enactment as non-

governmental and hence beyond constitutional scrutiny. See, ¢.g.,

138 Cong. Rec. § 646 (daily ed. Jan. 30, 1992) (statement of Sen.

Helms); id. at § 648 (statements of Sen. Thurmond); id. at § 649

(statement of Sen. Inouye). In our view, these statements are

Penner Pics Ameren Se NB ed ene ha

10 establishes. First, Congress has specified that, in all instances,

leased access programming must be blocked if it constitutes

Pree) my ne as defined by Commission regulations.”

Section 10(b) (codified at 47 U.S.C. § 532(j\(1)). This provision

is an integral part of Section 10’s system of censorship, and it

indicates that Congress has fully involved itself and the Commission

in placing restrictions on programming under the Act. As such it

is direct state involvement that suffices to trigger first amendment

scrutiny of the entire enactment.'' Further, Section 10(b) indicates

that Congress viewed the censorship of cable programming as a

function of the state, and its delegation of a part of that power to a

private actor does not insulate the exercise of that power from

constitutional scrutiny. See, e.g., Williams v. City of St. Louis, 783

F.2d 114, 117 (8th Cir. 1986) (“This delegation under state law of

powers possessed by virtue of state law 2nd traditionally exercised

by the City satisfies us that the City’s action here is under color of

state law.”); Ancata v. Prison Health Servs. Inc., 769 F.2d 700,

703 (11th Cir. 1985) (“Where a function which is traditionally the

exclusive prerogative of the state .. . is performed by a private

entity, state action is present.”).

Second, it is Congress in all instances that has specified what

type of programming an operator may refuse to carry over PEG or

leased access, otherwise mandating that “a cable operator shal! not

exercise any editorial control” over the programming of these

channels. 47 U.S.C. § 531(e) (PEG); 47 U.S.C. § 532(c)(2) (leased

access). This congressional specification of programming standards

is not insulated from first amendment scrutiny merely because it is

phrased in permissive terms, for it operates in tandem with Section

10(d)’s imposition of liability on private censors if they fail to

prohibit speech that “involves” obscenity. In other words, these

provisions place the operator in peril of liability and prompt it to

'' Because “[t}he more relevant inquiry in evaluating severability is

whether the statute will function in a manner consistent with the inten: of

Congress,” Alaska Airlines. Inc. vy. Brock, 480 U.S. 678, 685 (1987)

(emphasis in original), the state action that adheres in the blocking

provisions of subsection (b) cannot be severed from the rest of the statute.

restrict ing that even remotely meets the permissive

cmmenttpemmietvenaatnanentel (a) and (c) of Section 10,

lest the speech also wander into the undefined grey area that

“involves obscene material.” Of. Bantam Books, Inc., v. Sullivan,

372 U.S. 58, 67 (1963) (cautioning against elevating form over

substance when determining whether censorship is occurring),

Penthouse Int'l. Lid. v. McAuliffe, 610 F.2d 1353, 1360 (Sth Cir.)

(same), cert. dismissed, 447 U.S. 931 (1980).

This effect has already been felt." For example, as the

Chairman and Chief Executive Officer of Time Warner Cable

(“TWC”) concluded in an affidavit that was submitted in litigation

that brought a direct challenge to the 1992 Act:

“The provision of Section 10(d) . . . injurfes] TWC by

subjecting it to the risk of criminal and civil liability for

programming created by others that it does not wish to carry

but is required by law to carry. The provisions . . . of the

Cable Act permitting TWC to prohibit or restrict obscene

programming does not alleviate such injury in that they compel

TWC to determine obscenity questions that even Federal courts

regard as exceedingly difficult, and TWC remains exposed to

criminal or civil liability if a court later disagrees with its

determination.” Affidavit of Joseph J. Collins, q 37, at 23

(App., Exh. M).

2 Of course, the threat of liability is sufficient for state action purposes;

it need not be the case, as here, that such a threat has proven to be the

direct cause of private conduct, Peterson v. City of Greenville, 373 U.S.

244, 24% (1963) (finding state action “even assuming . . . that the manager

would have acted as he did independently of the existence of the

ordinance”); Carlin Communications, Inc. v. Mountain States Tel. & Tel.

Co., 827 F.2d 1291, 1295 (9th Cir. 1987) (“Simply by “command[ing} a

particular result,’ the state had so involved itself that it could not claim the

conduct had actually occurred as a result of private choice.”), cert. denied.

485 U.S. 1029 (1988).

Cable operators thus feel compelied by their possible liability to

censor widely.

Indeed, cable operators have for that reason already begun to

institute censorship for programming that is sexually explicit but not

even arguably indecent, out of fear that some such program might

later be found to subject the operators to liability. As one cable

operator wrote to the executive director of its local public access

programmer,

“all programming which contains sexual, excretory or other

behavior or depictions, or language which potentially may be

offensive to the citizens of Tucson [must] be sent to our system

for screening before it is cablecast by TCCC over our cable

system.” Letter from InterMedia Partners to Tucson

Community Cable Corp. (Nov. 13, 1992) (App., Exh. N).

Thus, not only is programming called in to question if it concerns

sexual material of any nature, it is also subject to editorial scrutiny

if it contains “potentially .. . offensive” language. Because of

their unpredictable nature and potential to include such language,

cable operators have specifically targeted live programming

(including call-in shows):

“Moreover, no live programming should be cablecast which

contains such material. All such programming should be taped

and sent to us for screening as outlined above.” /d.

Recognizing the obvious dangers posed by the threat of

government-imposed liability on private censors, federal courts

faced with similar schemes have not hesitated to recognize the state

action that brings first amendment principles to bear. For example,

in Carlin Communications, Inc. v. Mountain States Telephone &

Telegraph Co., 827 F.2d 1291 (9th Cir. 1987). cert. denied, 485

U.S. 1029 (1988) Arizona’s threat of criminal liability constituted

sufficient state action to subject to first amendment scrutiny a

telephone company’s decision to bar sexually explicit messages.

“With this threat, Arizona ‘exercised coercive power’ over

Mountain Bell and thereby converted its otherwise private conduct

into state action... .” Jd. at 1295 (quoting Blum v. Yaretsky, 457

U.S. 991, 1004 (1982))." Similarly, the threat of liability

contained in Section 10(d) of the 1992 Act transforms the

censorship standards of Sections 10(a) and (c), which are otherwise

phrased in permissive terms, into state action.

Indeed, the existence of subsection (d) nullifies the state action

arguments advanced in the floor debates on Section 10. Subsection

(d) was not a part of the enactment then being debated, but was

later added as a “conforming amendment.” It is “conforming,”

however, only in the sense that it requires cable operators to

conform to censorship standards that are otherwise phrased in

permissive terms. In later proposing the addition of subsection (d),

Senator Helms specifically stated that its purpose was to “put an

end to the kind of things going on” access channels." Given this

change in circumstances, it is not surprising to find inapposite the

federal cases cited in the floor debate for the proposition that the

example, Senator Helms pointed to Carlin Communication. Inc. v.

Southern Bell Telephone & Telegraph. Inc., 802 F.2d 1352 (11th

Cir. 1986), to support his contention that “it is permissible to allow

a private company to make independent decisions to exclude certain

The court went on to hold that any decision to ban speech made under

threat of state-imposed liability “was unconstitutional state action” that

violated the first amendment. 827 F.2d at 1296.

In its Notice of Proposed Rulemaking, the Commission recognized the

symbiotic relationship between the programming standards of subsections

(a) and (c) and the imposition of liability contained in subsection (d). For

example, Paragraph 13 first notes that subsection (c) “merely allows the

cable operator the option” of censoring PEG. The next sentence

immediately juxtaposes

“As pointed out earlier, however, [subsection (d)] expressly provides

that cable operators are no longer statutorily immune from liability for

carriage of obscene materials on these channels.”

However, we note that the legislative history of subsection (d)

suggests that liability cannot be imposed on cable operators with respect

to PEG. The scant floor debate was concerned wholly with leased access

channels. 138 Cong. Rec. S652 (daily ed. Jan. 30, 1992) (statement of

Sen. Helms).

objectionable material.” 138 Cong. Rec. $646 (daily ed. Jan. 30,

1992) (emphasis added). As others have readily recognized,

however, the threat of liability removes the independence of that

decision and renders it subject to first amendment scrutiny. See,

€.g., Mountain States, 827 F.2d at 1295; id. at 1298 n.2 (Canby,

J, dissenting in part) (“the presence of this coercion differentiates

this case from Carlin v. Southern Bell”).

B. PUBLIC FORUM

Even were the censorial dictates of Section 10 not themselves

state action, the first amendment would still apply. Because PEG

and leased access constitute a quintessential public forum, a system

of censorship is not insulated from the first amendment simply

because Congress has vested private cable operators with the

decision to prohibit speech in that forum. When the government

destroys a public forum by empowering private actors to restrict

speech, it must do so within the bounds of the first amendment.

PEG and leased access certainly constitute such a public forum

— one that is unique because of the widespread reliance on

electronic communication. Congress recognized this status in the

legislative history of the 1984 Act, which both recognized that local

franchising authorities could provide for PEG in franchises and

required them (>) establish leased access, See H.R. Rep. No. 934,

98th Cong., 2d Sess. 30 (1984), reprinted in 1984 U.S.C.C.A.N.

4655, 4667 (quoted supra page 4). The legislative history of the

1992 Act similarly recognizes that Congress has heretofore

required] cable operators to operate public and leased access

channels as a public forum open to any and all speakers.” 138

Cong. Rec, $648 (daily ed. Jan. 30, 1992) (letter from Mr. Peters);

id. at S652 (statement of Sen. Helms) (“[{TJhe intent of the [1984]

law, obviously, was to promote diversity in cable programming.

The law required cable operators to carry anything that

programmers brought along.”). In sum, “the underlying theory of

leased access channels [is] to provide a forum for people to speak

out on a diversity of issues.” Jd. (statement of Sen. Thurmond).

See also S. Rep. No. 381, 101st Cong., 2d Sess. 46 (1990) (PEG

and leased access constitute “a free market of ideas”).

Under generally applicable first amendment principles,

therefore, localities that implement these provisions pursuant to

their franchising authority have purposefully “‘openfed) a

nontraditional forum for public discourse’” and created a public

forum “that has as ‘a principal purpose . . . the free exchange of

ideas.’” International Society for Krishna Consciousness, Inc. v.

Lee 112 S. Ct. 2701, 2706 (1992) (quoting Cornelius v. NAACP

Legal Defense & Educ. Fund. Inc., 473 U.S. 788, 800, 802

(1985))'®. The federal courts have thus recognized that PEG and

leased access constitutes a public forum for purposes of first

amendment analysis.'*

Because of the recognition that access channels are a public-

forum, as at least one commentator has noted, “for the access

channels, the 1984 Act regards the cable system as the modern

counterpart to the city street or, perhaps more precisely, to the

streets in a company town.” Michael I. Meyerson, The Cable

Communications Policy Act of 1984: A Balancing Act on the

Coaxial Wires, 19 Ga. L. Rev. 543, 585 (1985). Attempts by

'S See also Southeastern Promotions, Lid. v. Conrad, 420 U.S. 546, 555

(1975) (finding municipal auditorium a public forum); Cinevision Corp. v.

City of Burbank, 745 F.2d 560, 570 (9th Cir. 1984) (same for

amphitheater), cert. denied, 471 U.S. 1054 (1985); Yurkew v. Sinclair,

495 F. Supp. 1248, 1252 n.5 (D. Minn. 1980) (state fair grounds); United

States Labor Party v. Knox, 430 F. Supp. 1359, 1361-62 (D.N.C. 1977)

(parking areas adjoining state-owned liquor stores).

‘© See, eg., Quincy Cable TV. Inc. v. FCC, 768 F.2d 1434, 1452 (D.C.

Cir. 1985) (“access rules . . . serve countervailing First Amendment

values by providing a forum for [the] public”), cert. denied, 476 U.S.

1169 (1986); Muir v. Alabama Educ. Television Comm'n, 656 F.2d 1012,

1022 & n.19 (Sth Cir. Unit B 1981); Erie Telecommunications, Inc. v.

City of Erie, 659 F. Supp. 580, 598-600 (W.D. Pa. 1987) (“access

requirements are intended to make cable channels available to the public

on a first-come, first-served nondiscriminatory basis”). See also Berkshire

Cablevision of Rhode Island, Inc. v. Burke, 571 F. Supp. 976, 987 (D.R.1.

1983) (access rules “mandate that all individuals be given the opportunity

to appear on cable television on a nondiscriminatory first-come, first-

served basis”), vacated as moot, 773 F.2d 382 (ist Cir. 1985)

private operators to now forbid expression upon channels that have

previously been dedicated as a public forum are therefore subject to

first amendment analysis, just as first amendment scrutiny is

necessary when the private owner of a company town attempts to

deny others the right to speak on nominally private sidewalks.

Marsh yey ager een 501, 507-08 (1946). “The more an

owner, for hi , Opens up his property for use by the

public im general, the mone do his tights becuse ciecamecribed by

the statutory and constitutional rights of those who use it.” Jd. at

506. Cf. International Society for Krishna Consciousness v. State

Fair of Tex., 461 F. Supp. 719 (N.D. Tex. 1978) (enjoining

restrictions placed by non-profit corporation on religious expression

being pursued in a public forum).

In a situation remarkably similar to that presented by Section

10, it vas an access channel’s status as a public forum that

prompted a federal court to apply first amendment analysis to a

scheme of permissive private censorship. Missouri Knights of the

Ku Klux Klan v. Kansas City, Mo., 723 F. Supp. 1347 (W.D. No.

1989). The Kansas City case arose after members of a racist

organization declared their intention to air a program over a public

access channel. In reaction, the city council passed an ordinance

that “permitted [the local cable operator] to delete the cable channel

if it so desired.” Jd. at 1350. In its stead, “a new channel would

be created” that “would be subject to [the operator’s] editorial

control.” Id. Recognizing that the introduction of permissive

editorial control would have intruded upon a public forum, the

court denied a motion for summary judgment that would have

eliminated a first amendment claim. It held that “[a] state may only

eliminate a designated public forum if it does so in a manner

consistent with the First Amendment.” Jd. at 1352.'" Because

See also United States v. Grace, 461 U.S. 171, 180 (1983) (“the

destruction of public forum siatus...is at least presumptively

impermissible” under the first amendment). Cf. United States Postal Serv.

v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 133 (1981)

(“Congress, no more than a suburban township, may not by its own ipse

(continued...)

a eT ee ee

Section 10 and the Commission’s proposed regulations thereunder

would similarly allow cable operators to impinge upon the PEG and

leased access public forum, they are proper objects of scrutiny

under the first amendment.

C. FIRST AMENDMENT VIOLATIONS

We have shown above that Section 10 does not escape first

amendment scrutiny. Moreover, under standards applicable to

content-based cable regulations, Section 10 is unconstitutional. As

the Commission has recognized in this docket, see Notice { 7, at 4,

differences in the characteristics of the various print and electronic

ante auatns See ae ee ee

against content-based regulation of expression pursued over

such medium. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,

386 (1969). “Each method of communicating ideas is a ‘law unto

itself and that law must reflect the ‘differing natures, values,

abuses and dangers’ of each method.” Metromedia, Inc. v. City of

San Diego, 453 U.S. 490, 501 (1981) (quoting Kovacs v. Cooper,

336 U.S. 77, 97 (1949)). Attention to the peculiarities of each

medium is therefore necessary when it comes to scrutinizing

attempted government regulation of speech that, while not obscene,

may be sexually explicit."

Thus, while the legislative history of Section 10 discloses an

intent to import content-based regulations that may be appropriate

for other media into cable, see, e.g., 138 Cong. Rec. $646-47

(daily ed. Jan. 30, 1992) (statement of Sen. Helms) (referring to

".. continued) .

dixit destroy the ‘public forum’ status of streets and parks which have

historically been public forums.”).

‘© Compare FCC v. Pacifica Found., 438 U.S. 726, 748 (1978)

(concerning indecency standards applicable to broadcast) with Sable

Communications v. FCC, 492 U.S. 115, 127 (1989) (“[t}he private

commercial telephone communications at issue here are substantially

different from the public radio broadcast at issue in Pacifica”) and Bolger

v. Youngs Drug Prods. Corp., 463 U.S. 60, 74 (1983) (distinguishing

receipt of sexually expiicit mail from broadcast).

already mandates the least restrictive means available to effectively

curbing the exposure of unsupervised children to sexually explicit,

non-obscene cable programming. For that reason, Section 10’s

First, unlike broadcast, cable does not involve a “captive

audience” — precisely the basis on which the Supreme Court in

Sable Communications v. FCC, 492 U.S. 1150, 127-28 (1989),

distinguished the telephone conuuunications it was concerned with

from the broadcast at issue in Pacifica. It was also on this basis

that federal courts have stricken local cable regulations that, like

Section 10, seek to limit sexually explicit programming. Thus, in

Community Television v. Roy City, 555 F. Supp. 1164 (D. Utah

1982), the court invalidated a local ordinance that sought to regulate

indecent cable programming, reasoning that all cable viewers must

Subscribe to the service and retain the power to cancel that

subscription. The court held that cable subscribers must specifically

choose to invite cable programming into their home, and it

therefore found inapplicable the captive audience rationale that

supports the regulation of broadcast indecency. Jd. at 1168-69. It

was in part on the same basis that the Eleventh Circuit declared a

similar ordinance unconstitutional, finding that “[a] Cablevision

subscriber must make the affirmative decision to bring Cablevision

into his home.” Cruz v. Ferre, 755 F.2d 1415, 1419 (11th Cir.

1985). See also Quincy Cable TV. Inc. v. FCC, 768 F.2d 1434,

1448 n.31 (D.C. Cir, 1985) (citing Cruz), cert. denied, 476 U.S.

1169 (1986).

Second, cable presents technologies that provide subscribers

even greater control over that service than they have over either

broadcast or telephone. Cable is unique in offering subscribers the

ability to lock out their children’s receipt of specific channels that

might otherwise be objectionable, just as parents may place the

liquor cabinet under lock and key. Indeed, federal law maadates

that all cable operators make available to their subscribers just such

lock boxes. 47 U.S.C. § 544(d)(2)A). Thus, in finding

unconstitutional a local restriction on sexually explicit

programming, the Eleventh Circuit made special note of the

“parental manageability of cable television” afforded by “the ability

to protect children” through the use of a “‘lockbox’ or ‘parental

key’” available from Cablevision. Cruz, 755 F.2d at 1415, 1420.

Set also Quincy Cable TV, 768 F.2d at 1448 n.31.

Because cable subscribers are not a captive audience and may

use lockboxes to further control access to their service, additional

restrictions on non-obscene cable programming are unnecessary and

therefore violative of the basic first amendment principle that any

restriction on speech must be narrowly tailored to achieving a

compelling government interest. See Carey v. Brown, 440 US.

455, 461 (1980). See generally infra Section II. It was on this

basis that the court in Home Box Office, Inc. v. Wilkinson, 531

F. Supp. 987 (D. Utah 1982), invalidated on first amendment

grounds a Utah statute forbidding cable operators from knowingly

distributing indecent programming, despite an asserted justification

of the protection of minors. The court held that the regulation at

issue would also have restricted the adult population to

programming suitable for children. Id. at 997.

Because of the unique nature of cable television, we strongly

regulations that were similar to the indecency restrictions contained

in Section 10. Federal law already mandates the least restrictive

means for effectively curbing the exposure of unsupervised children

to sexually explicit cable programming. Section 10 therefore

contemplates an unnecessary additional burden on the first

amendment rights of PEG and leased access programmers and

viewers, and any final rule that mirrors the statute would itself be

Even if some content-based regulation could pass muster,

however, it is clear that the one proposed by the Commission fails

to meet constitutional minima. By parroting Section 10, the

Proposed Rule incorporates all of the statute’s constitutional

infirmities. We now turn to an examination of the Commission's

Proposed Rule.

Il. THE COMMISSION HAS FAILED TO CONSIDER

LESS RESTRICTIVE MEANS TO IMPLEMENT

RESTRICTIONS CONTAINED IN ITS PROPOSED RULE

In order to comport with the first amendment, the content-based

restrictions contained in the Commission's Proposed Rule must both

further a governmental interest that is compelling and do so by the

least restrictive means. Sable Communications v. FCC, 492 U.S.

115, 126 (1989); Gibson v. Florida Bar, 798 F.2d 1564, 1569

(1ith Cir. 1986). cert. dismissed, 112 S. Ct. 633 (1991). The

Commission has failed on both of these scores. It has not

sufficiently articulated any underlying government interest in the

restrictions it is proposing. Moreover, because it allows a total

prohibition against both programming deemed to “promote”

unlawful conduct (on PEG) and sexually explicit programming (on

PEG and leased access), the Commission’s Proposed Rule cannot

be considered narrowly drawn to serve a compelling governmental

purpose. Carey v. Brown, 447 U.S. 455, 461-62 (1980).

Whatever the Commission’s purpose, it clearly has no cognizable

interest in keeping from adults either sexually explicit material or

political programming that may take issue with existing law, which

is Of course the necessary implication of any total prohibition.

Finally, because lockboxes already effectively implement the

government's interest in protecting unsupervised children, even the

introduction of censorship that is less than an outright ban would

fail the least restrictive means test.

First, the Commission has failed to state on the record the

compelling purpose that motivates the PEG restrictions contained in

subsection (c) of its Proposed Rule. Such an articulation is of

course a necessary predicate to determining “if it chooses the least

restrictive means to further the articulated interest.” Sable, 492

U.S. at 126. As for the leased access restrictions of subsection (a),

the Commission mentions only in passing that it is concerned with

“children’s exposure to indecent programs” over those channels.

Notice, ¢ 9, at 5. Even if that passing reference can be taken as a

full statement of the governmental interest being pursued,’® the

Commission has not developed any record evidence describing the

nature and extent of that exposure. Without such a fact finding,

any means implemented cannot be considered the least restrictive,

because a reviewing court is left without a standard against which

to judge the effectiveness of the various options. Burlington Truck

Lines, Inc. v. United States, 371 U.S. 156, 167-68 (1962) (agency

must make findings based on substantial evidence in order that court

has something to review). See also Action for Children’s Television

v. FCC, 852 F.2d 1332, 1341-42 (D.C. Cir. 1988); of. Sable, 492

U.S. at 126-27.

Second, no government interest can support the complete

prohibition against sexually explicit programming on PEG and

leased access, which the Proposed Rule allows. While the federal

courts recognize that government may at times shield children from

some sexually explicit material that is not obscene, that purpose

must be served by the least restrictive means towards its effective

implementation. Sable, 492 U.S. at 126. Schemes that use child

protection as an excuse to keep such material away from both

children and adults fall far short of this test. See, e.g., Butler v.

Michigan, 352 U.S. 380, 383 (1957) (even when attempting to

protect children, regulation cannot effectively reduce adults to

having “only what is fit for children”). Regardless of the medium

involved, therefore, child protection has failed as an excuse for total

bans on sexually explicit material, including books, id., telephone

'° We contend that it cannot be the requisite full statement. [nm the

context of broadcast indecency, the court found that such an afticulation

came too late when it was not until oral argument that “the FCC's General

Counsel, in response to the court’s inquiry, clarified *e government's

interest: it is the interest in protecting unsupervised children from exposure

to indecent material; the government does not propose to act in loco

parentis to deny children’s access contrary to parents’ wishes.” Action for

Children’s Television v. FCC, 852 F.2d 1332, 1343 (D.C. Cir. 1988)

(emphasis in original). In any event, if the same as yet unarticulated

interest motivates the Commission's programming restrictions for

cablecast, lockboxes present the superior means of empowering parents to

supervise their children however they so choose, as we discuss below.

messages, Sable, 492 U.S. at 127-31, unsolicited mail, Bolger v.

Youngs Drug Prods. Corp., 463 U.S. 60 (1983), and radio and

television broadcasts, Action for Children's Television v. FCC, 932

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

112 S. Ct. 1282 (1992). It is thus not

surprising to find that the protection of children has failed as an

excuse for previous attempts to prohibit sexually explicit

programming from being carried on cable. See Cruz v. Ferre, 755

F.2d 1415, 1420-21 (llth Cir. 1985); Home Box Office v.

Wilkinson, 531 F. Supp. 987, 997 (D. Utah 1982): Community

— v. Roy City, 555 F. Supp. 1164, 1166 & n.8 (D. Utah

In contrast to the approach adopted by the Commission's

proposed rule, lockboxes present the least restrictive means of

controlling the access of minors to programming that their parents

* We also note that a least restrictive means can be derived

trem tho PUG and tenes cosers ctuneats Gemasives. Bren 0: aneadea

both state that “a cable operator shal] not exercise any editorial contro!

over” am access channel. 47 U.S.C. § S3l(c) (PEG); 47 U.S.C

§ 532(cX2) (leased access). In order to keep the narrow amendments of

Section 10 from swallowing this larger purpose — the preservation of a

public forum — those amendments must be narrowly construed. By failing

t© propose safeguards such as those discussed in text, therefore. the

Commussion has also acted contrary to the statute

find inappropriate, as we show below.”' Moreover, cable operators

are already required to make lockboxes available to all subscribers.

47 U.S.C. § 544(d)(2)(A). Without a finding that lockboxes are

ineffective, therefore, the introduction of outside editorial control

over PEG and leased access programming must be considered an

unconstitutionally intrusive means of protecting unsupervised

children from sexually explicit programming.

The Commission in the current docket has acknowledged that

lockboxes play a role in limiting children’s access to cablecast

indecency. Notice { 9. at 5 (lockboxes are available to subscribers

to “control access to . . . cable services on the system [and] to limit

access to [channels carrying indecency] to others in the

household”). In other dockets, too, the Commission has spoken

directly to the effectiveness of this technique. See, ¢.g., PCC 85-

179. 1985 FCC Lexis 3475, 4 132, at 112-13 (Apr. 11, 1985)

(“Indeed, we believe that the provision for lockboxes largely

disposes of issues involving the Commission's standards for

indecency, and would also be a significant factor in cases related to

obscenity and similar offensive programming .”) (footnote omitted)

Thus, when discussing techniques for reducing children’s exposure

to broadcast indecency, the Commission specifically noted that:

“Technical means are available to block children’s access to

must provide a device such as a ‘lock-box’ or ‘parental key

that permits a subscriber to restrict access to selected

programming . . . . [Lockboxes] can restrict access by children

whether or not parents are presemt and actively

supervise.” FCC 90-264, 5 F.C.C.R. 5297, 5305 (1990).

The Commission has not been alone in recognizing the

lockboxes effectively screen indecency and that they do so without

infringing on the first amendment rights of programmers and adult

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

. Examples of several lockbox owner manuals are presented in the

Appendix as Exhibit O-Q

—s

U.S.C.C.A.N. at 4655, 4707 (quoted supra at 5). And the federal

courts have similarly acknowledged that these devices are effective

for protecting children without burdening programmers’ rights to

speak. See cases cited supra Section 1.C. Indeed, lockboxes are

considered superior to central blocking because they place

“responsibility for making such choices . . . where our society has

traditionally placed it — on the shoulders of the parent.” Fabulous

Assocs. Inc. v. Pennsylvania Pub. Util. Comm'n, 896 F.2d 780,

788 (3c Cir. 1990). See also Bolger, 463 U.S. at 73-74 (parental

discretion controlling access to unsolicited contraceptive advertising

is the preferred method of dealing with such material).

In the face of this precedent, the Commission has simply failed

to explain in any manner either why lockboxes are now no longer

effective or why a more burdensome means of protecting children

has become necessary.” Without record evidence that supports a

restrictive option of central blocking cannot be implemented. Cf

ACLU v. FCC, 823 F.2d 1554, 1579 (D.C. Cir. 1987), cert

denied, 485 U.S. 959 (1988).

Ill. THE COMMISSION’S PROPOSED REGULATIONS

ARE CONSTITUTIONALLY DEFICIENT BECAUSE

THEY ARE UNDERINCLUSIVE

Because the constitution will tolerate a content-based restriction

on speech only when it “is necessary to serve a compelling state

interest and... is narrowly drawn to achieve that end,” Perry

Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 US. 37, 45

(1983), the failure of such a restriction to address the entirety of a

problem “undermine{s] [the] claim that the prohibition. . _ . can be

justified by reference to the State's interest.” Carey v. Brown, 447

U.S. 455, 465 (1980). Underinclusiveness thus stands as an

Nor has the Commission explored other alternatives that may be

considered less restrictive than a ban or central blocking, such as a

nighttime safe harbor. Cf Action for Children's Television, 932 F 2d a

1509 (concerning Commussion promulgation of nighttime safe harbor for

broadcast)

access channe’s. It has no statutory authority to apply these

sretures across the board, and, even if it did, to do so now without

further notice and comment would violate the Administrative

Procedures Act. See generally infra Section V1. Finally , an across

the board restraint would self-evidently greatly magnify all of the

other constitutional concerns outlined in these Comments.

Moreover, the Commission has failed to narrowly interpret the

statute in a way that would provide for even-handed application —

1.é. tO prevent operators from prohibiting from access channels the

same types of programming it carries on other of its channels.

Because the Proposed Rule omits such a safeguard, the Commission

The underinclusiveness common to both the statute and the

Proposed Rule is especially suspect because the legislative history

of the Act demonstrates that Congress was aware that cable

operators carry sexually explicit programming on channels other

than leased access.“ For example, floor statements evidence a

concern that the Playboy Channel had been carried over a leased

access channel in Puerto Rico. 138 Cong. Rec. $646, S652 (daily

ed. Jan. 30, 1992) (statement of Sen. Helms). While the

Commission's proposed regulations might require that the Playboy

Channel be scrambled on leased access, it places no similar

restriction on its carriage over the other cable channels on which it

far more typically appears.

Section 15 of the Act, which concerns unsolicited sexually

explicit “premium channel” programs, also demonstrates that

Congress was aware of sexually explicit nonaccess i

In dicta, the Supreme Court in R.A. V. v. City of St. Paul, Minn., 112

S. Ct. 2538, 2545 (1992), stated that no fatal underinclusiveness is

presented by “a State's prohibiting obscenity (and other forms of

prescribable expression) only in certain media” Because the

Commission's Proposed Rule differentiates between cablecasts over the

same media, however, the Court's dicta in this regard is inapposite.

Moreover, the Proposed Rule goes well beyond proscribable expression

and intrudes upon constitutionally -protected speech.

* Nor has the Commission in this docket developed any facts on the

record tending to show that access programming is somehow a greater

problem.

existing channels (including access channels) if sexually explicit

iin on these channels was unwelcome. See generally

supra Section Il (discussing lockboxes).

The narrow scope of Section 10 and the Commission's

Proposed Rule is especially invidious in this context. The users of

PEG and leased access channels have traditionally been those less

powerful interests who otherwise have no access to the electronic

ant — ee ee ee oe

which specifically encourages the use access

“programming source[s] which devote{ ] substantially all of (their)

programming to coverage of minority viewpoints, or to

programming directed at members of minority groups.” Section

%c) (codified at 47 U.S.C. § 532(i)). The Supreme Court's caution

in Cornelius, v. NAACP Legal Defense & Educ. Fund. Inc., 473

U.S. 788 (1985), is therefore particularly apt. When the

“purported concern [is] to avoid controversy excited by particular

groups,” warned the Court, distinctions “may conceal a bias against

the viewpoint advanced by the excluded speakers.” Jd. at 812. Cf

R.A.V. v. City of St. Paul, Minn., 112 S. Ct. 2538, 2547 (1992)

(banning some types of words but not others presents a “realistic

possibility that official suppression of ideas is afoot”).”

in sum, Section 10 and the Commission's Proposed Rule do not

pursue a compelling state interest, and the Commission cannot

overcome the statute’s underinclusiveness by simply applying the

scheme set out in Section 10 to all cable channels. Neither the

1992 Act nor the 1984 Act affords the Commission any such

sweeping authority, which would be unconstitutional in any event.

unconstitutional attempt to “regulate use based on hostility — or favoritism

— towards the underlying message expressed.” 112 S. Ct. at 2545.

However, the use of regulations concerning lockboxes — which are

authorized by statute — to implement the constraints of Section 10

would permit the Commission to address Congress's concern for

protecting unprotected children from cable programming their

parents find inappropriate, and to do so on an evenhanded basis that

applies to all cablecasts.

IV. THE STANDARDS FOR PROHIBITING SPEECH

THAT ARE PROPOSED BY THE COMMISSION ARE

OVERBROAD AND HENCE UNCONSTITUTIONAL

The Commission's Proposed Rule is overbroad in two different

respects. First, the standard for prohibiting PEG programming

intrudes upon protected speech. Second, the Commission has not

given a narrowing construction to the liability standard contained in

Section 10(d).

First, while the federal courts have occasionally suffered the

regulation of speech when it is the only way to protect children,

they have more generally recognized that “minors are entitled to a

significant measure of First Amendment protection, and only in

relatively narrow and well-defined circumstances may government

bar public dissemination of protected materials to them.” Erznoznik

v. City of Jacksonville, 422 U.S. 205, 212-13 (1975) (citations

omitted). Far from being “narrow and well-defined,” however.

subsection (c) of the Commission's Proposed Rule covers “materia!

soliciting or promoting unlawful conduct,” a broad and vague

unconstitutionally overbroad. See ¢.g., Village of Shaumburg v

Citizens for a Better Env't, 444 U.S. 620, 633-39 (1980): Bigelow

v. Virginia, 421 U.S. 809, 815-18 (1975).

Generally, “the constitutional guarantees of free speech and free

press do not permit a State to forbid or proscribe advocacy of.

law violation,” the only exception being inapplicable to the present

situation — “where such advocacy is directed to inciting or

producing imminent lawless action and is likely to incite or produce

such action.” Hess v. Indiana, 414 U.S. 105, 108 (1973) (quoting

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)). See also Noto

v. United States, 367 U.S. 290, 297-98 (1961) (“the mere abstract

teaching .. . of the moral propriety or even moral necessity for a

resort to force and violence[ | is not the same as preparing a group

for violent action and steeling it to such action”). To preserve our

political system's ability to change in the face of evolving notions

of justice, the government cannot prevent the citizenry from

advocating civil disobedience against unjust laws — ¢.g., advocating

for the underground railroad to fight slavery or advocating the

refusal to sit at the back of the bus to fight segregation.

Similar problems are posed by the PEG restriction on “sexually

explicit conduct.” This standard omits provisions requiring either

that the depiction be “patently offensive” or that it fail under a

community standard. It thereby restricts far more speech that has

ever been heretofore countenanced, even in protecting minors.

The Commission recognizes the overbreadth of these provisions

when it suggests in its Notice that these terms would have to be

narrowed. $13, at 6n.11. Subsection (c) of the Commission's

Proposed Rule contains no such limiting construction, however, and

it therefore remains overbroad. At the least, any final rate that the

Commission may promulgate in this docket should explicitly narrow

the PEG standard to obscenity, indecency as elsewhere defined, and

soliciting prostitution.”

Second, the Commission has also failed to offer a limiting

construction of Section 10(d), which extends liability to cable

operators who carry programming that “involves obscene material.

While it might be the case that liability could be imposed in the

* Even were the Commission to limit “sexually explicit conduct” to

indecency, we note that the indecency standard, too, raises serious first

amendment concerns. See Action for Children's Television v. FCC, 852

F.2d 1332 (D.C. Cir. 1988).

- An avowal by the Commission that they would adhere to any limiting

construction not contained in the final rule itself is insufficient in this

regard for two reasons. First, because section (d) of subsection 10 is a

waiver of a liability immunity, others besides the Commission will be

making liability determinations. Second, even if the determination were

to be made by the Commission, its avowal does not have the binding force

of a rule. Bella Lewitzky Dance Found. v. Frohnmayer, 754 F. Supp.

774, 782 (C.D. Cal. 1991).

proper circumstances — which would have to include procedural

protections that are now absent (see infra Section V) — for carrying

obscenity itself, in no case cyuld it extend to carrying material that

“involves” obscenity. Because the “involves” standard is an

indefinite and nebulous term that fails to put cable operators on

notice as to what programming may subject them to liability,

Section 10(d) is unconstitutionally vague and overbroad. Cf. Bella

Lewitzky Dance Found. v. Frohnmayer, 754 F. Supp. 774, 781

(C.D. Cal. 1991) (finding unconstitutionally vague a standard

concerning material which in the judgment of the NEA may be

considered obscene).

To survive first amendment scrutiny, a statute must be drafted

with precision. See Hobbs v. Thompson, 448 F.2d 456, 460 (Sth

Cir. 1971) (“The overbreadth doctrine, therefore, focuses directly

on the need for precision in legislative draftsmanship to avoid

conflict with First Amendment rights.”); of. Video Software Dealers

Ass'n v. Webster, 773 F. Supp. 1275, 1280 (W.D. Mo. 1991)

(statute regulating protected speech must have purpose articulated

with great precision; where purpose of statute not clearly

articulated, statute stricken as overbroad), aff'd, 968 F.2d 684 (8th

Cir. 1992). Thus, words such as “involving” and “tending,” which

foster indefiniteness, lead to imprecision and constitutional

infirmity. For that reason, the Supreme Court in Gooding v.

Wilson, 405 U.S. 518 (1972), found unconstitutional for vagueness

and overbreadth a statute that outlawed speech “tending to a breach

of the peace” because this standard was “‘infinitely more doubtful

and uncertain’” than “breach of the peace.” Jd. at 427 (citations

omitted). See also Gregory v. City of Chicago, 394 U.S. 111, 119

(1969) (Black, J., concurring). Section 10(d)’s liability standard

suffers from the same infirmity and, without a narrowing construct,

cannot be considered constitutional. Cf Grayned v. City of

Rockford, 408 U.S. 104, 111 (1972) (“tends to disturb” imprecise

when not construed narrowly).

Vv. THE COMMISSION HAS PROPOSED PROCEDURES

FOR PROHIBITING SPEECH THAT ARE

CONSTITUTIONALLY DEFICIENT

The Proposed Rule envisions denying programmers the ability

to use PEG and leased access based on the sexually explicit or

politically controversial nature of their message, thereby constituting

a system of content-based prior restraints. See Ward v. Rock

Against Racism, 491 U.S. 781, 795 n.5 (1989) (denial of the use of

a forum prior to actual expression constitutes a prior restraint);

Southeastern Promotions, Lid. v. Conrad, 420 U.S. 546, 553

(1975) (same). “While [p}rior restraints are not unconstitutional per

se... [aJny system of prior restraint . .. comes .. . bearing a

heavy presumption against its constitutional validity."” FW/PBS,

Inc. v. City of Dallas, 493 U.S. 215, 225 (1990) (quoting

Southeastern Promotions, 420 U.S. at 558). See also Bantam

Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).

The federal courts have long held that to survive this strict

constitutional scrutiny, prior restraints must, at a minimum, “take[ |

place under procedural safeguards designed to obviate the dangers

of a censorship system.” Freedman v. Maryland, 380 U.S. 51, 58

(1965). The Proposed Rule that the Commission has issued in this

docket omits any such procedural protection. For that reason alone,

it is unconstitutional.

With respect to only PEG, the Commission’s Notice does ask

for comments regarding procedures “to govern disputes between the

cable operator and programmer,” proposing that “any such disputes

should be handled at the local level.” 14, at 7. As an initial

% As prior restraints, the proposed regulations stand in marked contrast

to various “dial-a-porn” regulations that have been promulgated by the

FCC and upheld by the Courts. Those regulations have no prior restraints

because, rather than preventing the transmission of the sender's messages,

they only hinder their receipt by minors. See Dial Info. Servs. Corp. v.

Thornburgh, 938 F.2d 1535, 1543 (2d Cir. 1991), cert. denied, 112 S.Ct.

966 (1992); Information Providers’ Coalition v. FCC, 928 F.2d 866, 877-

78 (9th Cir. 1991). It should be noted in this context that lockboxes, too,

do not constitute prior restraints.

matter, even were this request to lead to some sort of dispute

resolution mechanism, it would not extend to leased access

programmers. Moreover, even if it did provide full coverage, no

system of the type envisioned could provide sufficient protection for

the constitutional rights that are at stake. An informal dispute

resolution — ism will not satisfy the first amendment’s

requirement for procedural safeguards.” Rather

must include at least three elements: ae

“First, the burden of instituting judicial proceedings, and of

proving that the material is unprotected, must rest on the

censor. Second, any restraint prior to judicial review can

be imposed only for a specified brief period and only for

the purpose of preserving the status quo. Third, a prompt

final judicial determination must be assured.” Southeastern

Promotions, 420 U.S. at 560.

Because these elements are absent from informal dispute resolution,

the notice does not request comment on a constitutionally sufficient

system of procedural protections. Rather, the only constitutionally

permissible system of dispute resolution would require operators to

go to court for an adjudication that a specific program is obscene

before that program may be kept off the cable system.

. The Commission’s Proposed Rule is also procedurally defective

with regard to the standard by which a cable operator may be held

liable for carrying “material involving obscenity.” Liability for

obscenity requires that the actor know the content of the material

found obscene, Smith v. California, 361 U.S. 147, 152-54 (1959):

Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 690 (8th

Cir. 1992) (“any statute that chills the exercise of First Amendment

rights must contain a knowledge element”), but neither the statute

nor the proposed Rule contains any such knowledge requirement.

- Nor does the Commission propose procedures that will protect

programmers from arbitrary decisions by operators, whose incentives are

contrary to access channels. See supra pages 2-4 and 9-10. The Proposed

Rule failed to include safeguards against fi

Saas ae ag delay, for example, or against

Given the present circumstances, the Commission should grant

operators immunity from liability unless knowledge of obscenity is

established through an operator's awareness that the implicated

program had been determined to be obscene in a prior judicial

determination in the same community. Cf. Bella Lewitzky Dance

Found. v. Frohnmayer, 754 F. Supp. 774, 783 (C.D. Cal. 1991)

(chilling effect of vague statute requires judicially administered

procedural protections). This would more fully implement the

policies behind the knowledge element, which is required in order

to circumscribe the chilling effect that will flow from imposing

liability from speech. Ordinarily, the knowledge requirement works

in tandem with the requirement that the provision specify the

prescribable speech with particularity. Here, because Section 10(d)

reaches programming that “involves obscene material, _ that

particularity is missing. By requiring that knowledge be established

only by a prior judicial determination has declared a program

obscene, the Commission will move towards restoring the proper

first amendment balance.”

VI. THE COMMISSION’S INSUFFICIENT NOTICE OF

ITS PROPOSED REGULATIONS PREJUDICES

INTERESTED PARTIES’ RIGHT TO COMMENT

We have already demonstrated that, in a number of different

ways, the Commission has failed to act according to the precepts of

administrative law. First, it has failed to articulate the purposes

that will be served by its Proposed Rule. See supra page 43.

Second, it has failed to present record evidence concerning the

existence of whatever problem its Proposed Rule is intended to

solve. See supra page 44. Third, it has failed to present its

- The Commission recognizes this knowledge requirement when it

proposes to waive Section 10(d) for operators who have not been informed

by programmers that their programming is obscene. As a matter of logical

consistency, the Commission should also state in its final rule that an

operator is not enabled to prohibit a program pursuant to Sections 10(b)

and 10(c) when it has not been informed by a prior judicial determination

that the program is obscene.

reasoning as to the way that the Proposed rule would serve as a

means of solving that problem. See supra pages 45-46.

An additional administrative law problem pervades this docket.

Section 553(b)(3) of the Administrative Procedures Act (the

“APA”) requires an agency initiating a rulemaking to issue a notice

that includes a complete description of either the terms of the

proposed rule or the subjects and issues involved. 5 U.S.C.

§ 553(b)(3). The Commission has failed in this regard in several

different respects.

With respect to PEG generally, the Notice is literally without

standards. Paragraph 14 asks commenters to address “whether our

regulations should provide for any additional matters not expressly

addressed in the statute,” and it “invite{s] interested persons to

comment on these and any other aspects that they believe would be

germane to proper implementation of this provision.” This general

request for comments fails to “describe the range of alternatives

being considered with reasonable specificity.” See Small Refiner

Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 549 (D.C.

Cir. 1983) (“interested parties [do] not know what to comment

on”).

The Notice also fails to speak concretely about several specific

PEG proposals. For example, Paragraph 14 also invites comment

on whether the Commission should require “certifications by users

Or operators that no materials fitting into any of these statutory

categories will be presented” on PEG. The Proposed Rule itself,

however, makes no mention of such certification, despite the fact

that it is clearly being contemplated by the Commission. It

therefore runs afoul of the requirement of a detailed proposed rule,

which “allows the parties to direct their comments toward concrete

Proposals, not amorphous subject areas. Such an approach is

designed to generate a focused inquiry by both the agency and the

parties.” National Tour Brokers Ass'n v. United States, 591 F.2d

896, 901 (D.C. Cir. 1978).

Similarly, the Proposed Rule omits any formulation for the

Commission’s contemplated implementation of “specific procedures

. . . tO govern disputes between the cable operator and programmer

of these [PEG] access channels.” Notice 914. This again

prejudices the right of parties to direct their comments towards

concrete proposals.

All of these errors are replicated in the notice with respect to

leased access. For example, Paragraph 12 contains the same

problematic general invitation asking commenters "to bring to our

attention any other matters not discussed in this notice and

in order to effectuate the new law’s provisions.” In

re sd 11, the Commission seeks comment on whether cable

operators “can require program providers to certify Aaa

programming is not obscene or indecent, despite the fact

Proposed Rule mentions nothing about the form, content or red

other aspect of the proposed certification. Indeed, despite i

absence, the Commission “assume[s]” that such certification is

appropriate. |

Similarly, Paragraph 9 requests comment on “blocking

il see tt procedures relating to subscriber access, but none

are contained in the Proposed Rule. And Paragraph 12 asks

commenters to address two issues not the subject of the Proposed

Rule itself: “whether a cable operator should be required to retain

notifications for a prescribed period of time,” and (ironically, given

the absence of this proposal from the Proposed Rule), whether a

cable operator should be held harmless from liability under our

proposed rules if it does not receive any, Or timely, notification

from a programmer” [emphasis added].

These deficiencies present three related administrative law

problems. First, Section 553(b) requires an agency giving notice

to “make its views known to the public in a concrete and focused

form so as to make criticism or formulation of alternatives

possible.” Home Box Office, Inc. v. FCC, 567 F.2d 9, 36 (D.C.

Cir.), cert. denied, 434 U.S. 829 (1977). See also Florida Power

& Light Co. v. United States, 846 F.2d 765, 771 (D.C. Cir. 1988)

(notice “must provide sufficient factual detail and rationale for the

rule to permit interested parties to comment meaningfully ), cert.

denied, 490 U.S. 1045 (1989); Connecticut Light & Power Co. v.

NRC, 673 F.2d 525, 530 (D.C. Cir.) (“If the notice of proposed

rule-making fails to provide an accurate picture of the reasoning

that has led the agency to the proposed rule, interested parties will

not be able to comment meaningfully upon the agency's

proposals.”), cert. denied, 459 U.S. 835 (1982). The

Commission's numerous omissions fal! far short of this standard.

however. The final rule will necessarily “deviate{ } too sharply

from the proposal, [and] affected parties will be deprived of notice

and an opportunity to respond to the proposal.” Small Refiner, 705

F.2d at 547.

Second, by avoiding the promulgation of concrete proposals, the

Commission has also avoided going into detail 2s to its reasoning

behind offering the suggested items. As the federal courts have

instructed, “the notice required by the APA must disclose in detail

the thinking that has animated the form of a proposed rule and the

data upon which that rule is based.” Home Box Office, 567 F.2d

at 35 (emphasis added). Without this discipline, the quality of the

final rulemaking suffer for want of the proposal being “tested by

exposure to diverse public comment.” Small Refiner, 705 F.2d at

547. See also National Ass'n of Home Health Agencies v.

Schweiker, 690 F.2d 932, 949 (D.C. Cir. 1982), cert. denied, 459

U.S. 1205 (1983); BASF Wyandotte Corp. v. Costle, 598 F.2d 637,

641 (Ist Cir. 1979). cert. denied, 444 U.S. 1096 (1980).

Third, without the agency's full reasoning and the exchange of

views it engages from the public, a notice as insufficient as the

Commission’s compromises judicial review as well as. See Home

Box Office, 567 F.2d at 35. Without precision concerning the

contemplated agency action, commenters are deprived of their

ability “to develop evidence in the record to support their

objections,” which further compromises judicial review. Small

Refiner, 705 F.2d at 547."

See also McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1323

(D.C. Cir. 1988) (an agency's consideration of comments, “no matter how

careful,” cannot cure the defect of inadequate notice); AFL-CIO v.

Donovan, 757 F.2d 330, 340 (D.C. Cir. 1985) (proper notice cannot be

attributed to parties on the assumption that they monitor the comments of

others); New Jersey v. EPA, 626 F.2d 1038, 1049 (D.C. Cir. 1983)

(continued...)

377, 380 (3d Cir. 1979). See also New Jersey v. EPA, 626 F.2d

1038, 1045 (D.C. Cir. 1980); United States Steel Corp. v. EPA,

595 F.2d 207 (Sth Cir, 1979).

CONCLUSION

authority. Rather, any restriction on speech must be carefully

tailored to balance the interests of government against those who

wish to speak. If those restrictions are not narrowly drawn, the

restrictions are unconstitutional.

*(.. continued)

(permitting an agency to consider comments requested after publication of

a final rule to substitute for proper notice would render the APA “virtually

unenforceable”); Small Refiner, 705 F.2d at 549 (having failed to provide

proper notice, an agency cannot “bootstrap” notice from a comment).

Moreover, because proper notice is a prerequisite to proper rulemaking,

a party's separate right to subsequently petition for amendment of a final

rule does not obviate an agency’s duty to provide proper notice of a

proposed rule in the first place.

“5 U.S.C. § 553(b) requires notice before rulemaking, not after.

The right of interested persons to petition for the issuance,

amendment, or repeal of a rule, is neither a substitute for nor an

alternative to compliance with the mandatory notice requirements

of § 553(b).” National Tour Brokers, supra, 591 F.2d at 902.

, this

Commission issues a final rule, it should i

comments once it has presented on the record its reasoning with

respect to these basic issues.

Respectfully submitted,

I. Michael Greenberger

David A. Bono

Shea & Gardner

1800 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 828-2000

Of Counsel:

James N. Horwood Marjorie Heins

Spiegel & McDiarmid American Civil Liberties Union

1350 New York Ave., N.W. Foundation

Washington, D.C. 20005 Arts Censorship Project

(202) 879-4002 132 West 43rd Street

Counsel _for the Alliance for New York, New York 10036

Community Media and the (212) 944-9800

Alliance for Communications Counsel for the American Civil

Democracy Liberties Union

CABLE TELEVISION AND THE PUBLIC INTEREST

PATRICIA AUFDERHEIDE

Made in United States of America

Reprinted from Journal of Communication

Vol 42, No. 1, Winter 1992

Public Access as a Public Space

Access programs often have been, in the words of one tired

access director, “programmed to fail.” This is less remarkable than

the fact that they exist at all. Only canny, ceaseless, locality-by-

locality citizen activism wrested access centers and channels in the

franchise process in the first place (Engelman, 1990), and all such

victories are temporary. The 1984 Act sabotaged some of those

victories. It had capped localities’ franchise fees and required them

to be unrestricted. It did not require access channels. Points of

confusion in the law — particularly the definition of “service” —

as well as restrictions on renewal procedures, among others, made

it easy for cable operators to pay more attention to their bottom line

and for franchisers to pay more attention to road paving than to

cable access. (Meyerson, 1990; U.S. Senate, 1990a, pp. 453-490;

Ingraham, 1990; Brenner, Price, & Myerson, 1990, sec. 6.04(3)[c],

6.04[4)]).

Even under starvation conditions, access has carved out a

significant role in the minority communities where it exists.

Currently 16.5% of systems have public access; 12.9% have

educational access, and 10.7% have governmental access (Television

and Cable Factbook, 1990, p. C-384). An abundance of local

programming is produced in some 2,000 centers — about 10,000

hours a week (Ingraham, 1990), far outstripping commercial

production. The Hometown USA Video Festival, showcasing local

origination and PEG channel production annually, in 1990 attracted

2,100 entries from 360 cities in 41 states.

These channels are often perceived to be valued community

resources, using traditional measures. One niultisite study shows

that 47% of viewers watch community channels, a quarter of them

at least three times in two weeks; 46% say it was “somewhat ea

“very” important in deciding to subscribe to or remain e

Pen 1990). Another study, commissioned by Access

Sacramento, showed that two-thirds of cable subscribers who knew

about the channel watched it (Access Sacramento, 1991). Access

centers provide resources and services typically valued at many

times what they cost. Access Sacramento, for instance, estimates

a community value of its equipment, training, and consultation at

$4.5 million, ten times its budget (Access Sacramento, 1990), an

estimate corroborated by the experience of access cable in Nashville

and Tucson.

But the most useful measure is not, and should not be, numbers

of viewers or positive poll results, but the ability of access to make

a difference in community life. Access cable should not function

like American public television does. Public television offers a

more substantial, thoughtful, challenging, or uplifting individual

viewing experience than a commercial channel. Access needs to be

a site for communication among and between members of the public

as the public, about issues of public importance.

Beyond a basic technical level of quality, the entertainment

value of such programming comes far secondary to its value as a

piece of a larger civic project, whether it is citizen input into

actions the local city council is making, or discussions of school

reform, or a labor union’s donation of services to low-income

residents, or the viewpoints of physically challenged people on

issues affecting them. This is because viewers are not watching it

as individual consumers, but as citizens who are responding to a

controversy. In each case, the program — unlike a commercial

broadcast or cable service — is not the end point, but only a means

towards the continuing process of building community ties.

In small and incremental ways, the access cable channel acts as

a public space, strengthening the public sphere. In Tampa, Florida,

for instance, public access cable provided the primary informational

vehicle for citizens concerned abut a county tax that was

inadequately justified. Major local media, whose directors shared

the interests of politicians, had failed to raise accountability issues.

The tax was defeated in a record voter turnout. Also in Tampa, the

educational cable access system's airing of school board meetings

has resulted in vastly increased public contact with school board

members and a children’s summer reading program in which

libraries’, schools’, and the access center’s work together has

resulted in the committee members, officers of 13 different

institutions, finding other common interests.’

Access does not need to win popularity contests to play a useful

role in the community. It is not surprising if people do not watch

most of the time. (Indeed, given the treatment access gets by cable

operators, it is a kind of miracle that viewers find the channel at

all.) It is indicative of its peculiar function that people find the

channel of unique value when they do use it. Different kinds of

access are used for very different purposes. Government and

educational channels may feature such programming as the city

council meeting, the school board meeting, the local high school’s

basketball game, religious programming or rummage-sale

announcements on a community billboard. Some colleges have

sponsored oral history sessions that illuminate immigrant history

(Agosta, Rogoff, & Norman, 1990; Nicholson, 1990).

Public access channels, run on a “first-come, first-served”

basis, are responsible for much of access cable’s negative image,

and some of its most improbable successes. There is often a strong

element of the personalist and quixotic in the programming. Public

access channels are sometimes a source of scandal and legal

controversy, as for instance when the Ku Klux Klan started

circulating national programs for local viewing (Shapiro, 1990, pp.

409f; Brenner et al., 1990, sec. 604[7]). sagt pre iphone

the Klan programs spurred civil liberties c minorities

port to use the access service for their own local needs,

and these groups have continued to do so. Voluntary associations

Interviews with the following people between September 1990 and

August 1991 informed the analysis of access cable: Andrew Blau, then

communications-policy analyst, United Church of Christ Office of .

Communication, New York; Alan Bushong, executive director, Capital

Community TV, Salem, OR; Gerry Field, executive director,

Somerville Community Access Television, Somerville, MA; Ann Flynn,

Tampa Educational Cable Consortium; Nicholas Miller, lawyer, Miller

and Holbrooke, Washington, D.C.; Elliott Mitchell, ex-executive

director, Nashville Community Access TV, TN; Randy Van Dalsen,

Access Sacramento, CA.

— for instance, the Humane Society’s adopt-a-pet program in

Fayetteville, Arkansas — and a musical education series sponsored

by the Los Angeles Jazz Society (Nicholson, 1990), also use public

access. In some places — for instance, New York City, where

Paper Tiger television regularly produces sharply critical programs

on the media; or Austin, Texas, home of one of access cable’s

oldest talk shows — public access has become an established

alternative voice in public affairs. Public access is host to

viewpoints as diverse as those of leftist critics of the Gulf War (in

Deep Dish TV’s national series) and those of conservative Rep.

Newt Gingrich (R-GA), who hosts half-hour shows produced by the

Washington, DC-based American Citizens’ Television (ACTV).

Thus access has a history of fulfilling a role of community

service and has been recognized in law as performing a useful First

Amendment function. Access cable could, in every locality,

provide an unduplicated, local public forum for public issues.

Public Access under Assault

Since the 1984 act, however, access cable has been under

relentless assault, both by cable companies and by cities under

financial pressure to use nontargeted franchise fees (Ingraham,

1990). In municipalities such as Pittsburgh, Pennsylvania;

Milwaukee, Wisconsin; and Portland, Oregon; cable companies

immediately rescinded or renegotiated franchise terms regarding

cable access, once the act went into effect.

Even when access was established or reestablished, the cost was

Significant. For instance, in Austin, Texas, the Time-owned

company announced that it could not afford to meet its franchise

obligations — especially its $400,000-a-year funds for access

television and the provision of eight channels — only two weeks

after deregulation went into effect. It took 11 months of civic

organization and city council pressure, and some $800,000, to

restore the provisions.

In localities beset with fiscal crisis — a widespread problem,

since in the 1980s many costs of government were shifted

downwards — revenues once designated to access have gone into

general revenues. For instance, when Nashville found itself in a

budget crisis in 1988, a program by a gay and lesbian alliance on

public access triggered a city council debate. The cable company,

a Viacom operator, a supported city council members trying to

rechannel access funds into general operating funds. The upshot

was near-total defunding of the access center. In Eugene, Oregon;

and Wyoming, Michigan; among others, municipalities have

drastically cut or eliminated access budgets in favor of other city

projects.

Cable policy in the public interest might well improve the

dismal legal situation for access, as well as define clearly its role as

a site where the public sphere can be strengthened. Policy could go

further still, creating new mechanisms for use of the medium as an

electronic public space. So far, legislative reform proposals have

been virtually silent on access, much less on any as yet untested

mechanisms to create new public spaces.

* * *

THE AMERICAN UNIVERSITY

Washington, D.C.

PUBLIC ACCESS CABLE PROGRAMMING,

CONTROVERSIAL SPEECH,

AND FREE EXPRESSION

By Patricia Aufderheide

December 1992

Patricia Aufderheide is an assistant professor in the School

Communication at The American University.

School of Communication

4400 Massachusetts Avenue, N.W.,

Washington D.C. 20016-8017

(202) 885-2060

Access cable—the channels variously known as public,

educational and governmental (or PEG) and offered as part of basic

cable wherever they have been called for in franchises — is that

rare site on cable where public interest comes before profit

(Aufderheide, 1992). Its past is embattled; it was created in uphill

struggles by local community activists, and survived only where

constantly defended — in perhaps 15 percent of cable systems

nationwide. The Cable Communications Policy Act of 1984 (47

USC, 521-559), which dramatically reduced the power of local

authorities to regulate through franchising and furthermore sapped

access’ funding mechanisms, weakened access’ relationships with

both local authorities and with cable companies.

Its present is no better. The Cable Television Consumer

Protection and Competition Act of 1992 did nothing to repair earlier

damage and, indeed, added language that may complicate access’

function further. One provision of the Act in fact could challenge

the fundamental purpose of public access and rob it of its unique

function within cable television: to permit speakers open access to

the community of viewers without censorship. That provision says,

first, that a cable operator may prohibit on PEG channels “obscene

material, sexually explicit conduct, or material soliciting or

promoting unlawful conduct.” It also creates liability for cable

operators in the case of obscene material (U.S. House of

Representatives, 1992, 29).

Public access cable’s free speech function is central to defining

its social importance. Congress intended it to serve as “the video

equivalent of the speaker’s soap box or the electronic parallel to the

printed leaflet” (U.S. House of Representatives, 1984, 21-22).

Public access’ mandate is thus linked to the implications of the first

amendment; it is a public forum, a facilitator of public

conversation.

Public access in protected in the 1984 act, which requires cable

operators to carry it without interference, making speakers

responsible for their own speech. The Act provides for viewer

control over potentially offensive material by mandating lockboxes

or channel blocking options. However, public access’ first-come

first-serve, open access principle is complicated in practice, not

least by the interest that local governments and cable companies

have in the performance of these channels but also by practical

questions of scheduling and handling demand on the service on the

part of access managers (Meyerson, 1987-88, 189-91).

| This study explores the social function of public access, as seen

in programming that is or is seen as potentially controversial—the

programming that could be in jeopardy with the 1992 Act. The

study's objectives were to identify such programming and incidents

of prohibiting such programming, and to estimate how editorial

responsibility would alter the function and purpose of access, as

perceived by access directors.

Some 31 access directors—chosen through their participation in

the Alliance for Community Media, which represents the interests

of cable access — were interviewed by telephone. Most (20) hextd

independent nonprofit entities; the rest were functionaries of local

government (9) or the cable company (2). The majority (21) came

from smaller communities, while 10 worked in major cities or state

capitals. The sample was regionally diverse, with 13 from the East.

seven from the Midwest, three from the South, and eight from the

West. . Roughly speaking, this diversity was typical of the

population of the Alliance, and probably of access nationwide

(although this phenomenon is dispersed and localized enough to lack

dependable national statistics) .'

The study was further bolstered by analysis of preliminary

results of a mail survey asking the same questions, sent to access

directors on the mailing list of the Ailiance for Community Media.

Among the 30 mail survey respondents, 21 headed nonprofit

entities. Three centers were run by the city, and three by the cable

company (two gave no information). Twenty-one were from

smaller communities; nine were from major cities or state capitals.

Thirteen came from the East, nine from the Midwest, one from the

South, and seven from the West.”

PROGRAMMING THAT TESTS THE LIMITS

Access programming varies dramatically from locality to

locality, what may be acceptable in Cambridge, MA is

unimaginable in Defiance, OH or Olympia, WA. Access directors

typically believe that if production usually reflects a concern

somewhere in that community. “If it has an audience,” said

director Deb Vinsel in Olympia, WA, “it’s part of your community,

even if you wish it were not.”

Public access often provides a unique venue in electronic media

for unpopular opinions, minority viewpoints or expressions of

minority culture. Access directors, when asked to consider

recorded programming that a cautious programmer might reject for

fear of being interpreted as containing “obscene material, sexually

explicit conduct, or material soliciting or promoting unlawful

conduct,” almost universally cited several examples. Those fell

into several categories:

—sex education, particularly AIDS education. Series such as

Fairfax (VA) Cable Access Corporation’s Gay Fairfax, Grand

Rapids (MI) Community Media Center's The Lambda Report,

Tucson (AZ) Community Cable Corporation’s Empty Closet would

all be suspect for “sexually explicit conduct” related to AIDS

education. So would be single programs such as Cambridge (MA)

Community TV’s Truth or Consequences: A Guide to Safe Sex at

MIT, AIDS, a documentary cablecast at Spring Point Community

teleyision Center in South Portland, ME; and an AIDS prevention

special involving role playing at Kalamazoo (MI) Community

Access Center.

—health education. In Amherst (MA), a video of a home birth

might have fallen under scrutiny. Desperately Seeking Susan, a

program in Olympia, WA, hosted by a therapist, has featured

delicate subjects, including one program on non-orgasmic women,

with frank discussion of sexual behavior.

—opinions at the political margins, for potentially soliciting or

promoting unlawful conduct. Libertarians, anarchists, rightists and

leftists all variously use cable access to promote political opinion

slighted by gatekeepers in mainstream media. As well, passionate

believers in particular political issues, such as abortion or

homosexual rights, look to this venue.

For instance, in Grand Rapids producers of a regular series Lies

of Our Times have at times endorsed sanctuary for Latin American

refugees and encouraged blockades of government offices in protest

of various official positions. In Sacramento, Libertarian Conspiracy

producers, in accord with their minimalist approach to government,

decry the criminalizing of marijuana. Tucson access center director

Sam Behrend notes that both Libertarian Review and Time for

Hemp, a regular series by supporters of legalization of marijuana,

might become suspect programs; similarly a one-time program in

Kalamazoo (MI), Cannabis, might not have run. A Fort Wayne

late night weekly program, Ganymedian Slime Mold, produced by

an idiosyncratic leftist, might not be acceptable simply for its

unpredictability, according to access director Greg Vawter, another

local program American Atheists migh: become suspect, he believes,

simply for not conforming to mainstream behavior. In at least one

case in a regular program in Portland, OR, a speaker recommended

direct and illegal action to protect old timber growth.

Several access centers (Forest Park, OH; Fort Wayne, IN.

Sacramento, CA; Kalamazoo, M!; Portland, OR; Dayton, OH.

South Portland, ME) reported either local or imported programs

opposing abortion, some by Operation Rescue, which either

encourage blocking of access to abortion clinics or include graphic,

possibly offensive images or both. These programs would be

suspect under a gatekeeping arrangement

In Oregon during election season 1992, ballot measure 9, which

would have criminalized some homosexual behavior, was hotly

debated on access cable. Oregon access center directors in Portland

and Salem both reported extensive use, both in live and taped

Programs, of access by opposing sides. Both sides incorporated

material that might have been perceived as sexually explicit.

pesmpapey —- was the Gulf War, where access cable

was a rare site , including a series of programs

EE ieee Ges extn een end reams

them by satellite. This programming was typically controversial.

For instance, in Winsted, CT, the Mad River TV access service

weathered demands to remove anti-Gulf War programming while it

was being cablecast. A production group in Portland, OR, The

Flying Focus Video Collective, has taken controversial stands on

issues ranging from the Gulf War to local environmental! issues.

—programs reflecting the point of view of cultural minorities.

For instance, young people eagerly use access cable both to speak

to their own peers and to speak about an experience

underrepresented in mainstream media. A program wildly popular

with teenagers, Silly Goose, was for a season a weekly comedy

program in at least arguable and certainly adolescent taste in

featured the theme of running with scissors.) Other regular local

programs in that area that promoted youth culture on access were

Musical Mayhem, featuring music videos, and Hard Hits, a rap

show produced by a young African-American man. Similarly, in

Olympia, WA, a youth-oriented music video program, Mosher's

Mayhem, accounts for both a passionate teen audience and also the

bulk of the occasional complaints to the service. In Grand Rapids,

MI, Blackwatch focuses on the language and images of inner city

youth. Malden, MA's public access has weathered controversy

over youthful productions marked by vulgar language.

nee Such programs have become controversial in

Sacramento, Amberst, Davis, CA, Arlington, VA, and on

Washington, D.C.’s DCTV system, and have been a perennial

source of contention in public access.

In general, then, taped programming regularly appears on

public access in ways that simultaneously serve the central mandate

of the service and also offend some sensibilities.

LIVE PROGRAMMING

iv ing on ic access reveals the social utility of

Re ry pees

Live programming can only be halted with a delay system beyond

the budget of most access centers; it can only be dependably safe if

both subject and participants can be counted on to avoid the

extremes of opinion that presently characterize public access.

Most centers surveyed offer live and interactive programming,

and find it draws eager participation from viewers. Access center

directors highlighted various kinds of programming demonstrating

the role of access cable an a public forum, which might be in

jeopardy under a gatekeeping arrangement.

—~sexual and health education. This is an area where live

programming often draws an engaged, often young audience. In

Chicago, AIDS Call-in Live receives phone calls four-fifths of which

come from African-American youth, according to director Barbara

Popovic. Typical of the kind of interchange was the phone call of

one 17-year-old girl who wanted to know how to respond to a

boyfriend who assured her they need not use condoms because he

was “loyal” to her. The conversation was frank and colloquial on

well, on air, speakers hold up items such as condoms and dental

dams, and explain their use. On public access cable in Austin, TX,

a program called Midnight Whispers frankly encourages viewers to

call in to share their sexual fantasies, so that an on-air nurse can

respond to them and discuss safe sex practices. The Portland, OR

“AIDS Forum Live” similarly might raise concern. A Tucson

program, Bridges, by and for the disabled, has featured AIDS

education involving anatomical models. In Sacramento, the

monthly “Health in America” program on alternative and holistic

health options, has featured graphic image of women with

—topical call-in programs. For instance, in Sacramento within

hours of the Rodney King verdict a special edition of the weekly

Live Wire community call-in program was airing, with scores >f

viewers, most apparently African-American, responding to a host

known in the community for his success in working with alienated

youth. Although the staff found that the discussion was less raw

than expected, it was also a volatile moment. Programs such as

Fort Wayne, IN’s program Speak Out and Tucson’s You're the

Expert touch on controversial local issues ranging from street signs

to police behavior, without any way of predicting how callers might

behave. NDC community TV in West St. Paul aired a series Facts

not Friends around 1992 electoral politics, which the access director

saw as expanding the debate. In South Portland, ME, during the

Gulf War, participants suggested illegal actions as protest.

—minority cultures. The Fort Wayne, IN program Coalition

for Unlearning Racism, a live twice-a-month program, deals with

topics on which, as access manager Rick Hayes puts it, “people are

already irate,” and has been the site of heated discussion about

racism. Hayes values it not because he thinks it changes the minds

of extremists, but because public dialogue, including with

extremists, educates the community. Also on the same system is a

program Message to the Black Man, a black nationalist program

that purveys a distinctly minoritarian view in Fort Wayne. In

Tucson, teenagers produce a live program called The Forbidden

Zone. in which they talk in the slang and curse-laden jargon of their

peers, involving sexually explicit language and sometimes

addressing illegal activities such as drug use. It is also a rare public

forum for this cohort; teenagers are far more likely to be the targets

of mass media and advertisers’ attention than they are to be

producers. Similarly, the live teen show Active Butch/Pensive Willy

in Newton Highlands, MA, has with its raw language in call-ins

roused the ire of a board member.

Access directors often singled out live programming as of

particular interest to their audience. “Live material like AJDS Call-

in Live is what's best in access,” said Chicago director Barbara

Popovic. “If this can’t be on, then it’s the baby and the

bathwater.”

PRESCREEING AND BANNING PROGRAMMING

Most access centers surveyed do not prescreen at all, except, as

in the case of Washington, D.C. and Dayton (OH) Access

Television, a high speed run-through for technical quality. In fact,

in one case, that of Somerville (MA) Community Access TV, the

present community-run nonprofit began in response to outrage over

the cable-run access center's prescreening of tapes. A few do

In these cases (e.g., Prince George’s Community Television,

Landover, MD; Pittsburgh Community Television, Pittsburgh, PA)

estimates of time it now takes to do prescreening range from 10 to

18 hours a week, however, this prescreening is not currently done

under the constraints of the new law.

Exceptions demonstrate a balancing >f concern for family

viewing hours with the service’s open access policy. In Fairfax,

VA, the center prescreens to decide on when to schedule. In Vail,

CO, director Suzanne Silverthorn watches “anything that might be

in question,” while in Amherst Myra Lenburg looks at unsolicited

material. Since this kind of prescreening does not need to be

comprehensive, it is also a light administrative burden. In

Olympia, WA, as in several other access centers including

Somerville, there was no prescreening, but producers were given

information on guidelines developed in conjunction with the city or

cable operator, to place potentially offensive programs on late at

might. Many access centers have guidelines and require producers

to read guidelines and certify that they abide by them.

Public access directors do become adept at dealing with

complaints from viewers, and from city and cable officials. But

rarely, in these interviews, had complaints resulted in prohibition

of programming, and then usually after it had already run at least

once.

Among several reported incidents of attempted programming

intervention, two point up the importance of an independent public

forum on controversial political issues. For instance, one

Cincinnati channel accepted a tape from one political party in 1991

local elections; the other party promptly obtained a restraining

order, although it had the right to air a program, and furthermore

center staff had volunteered to help produce one. Ultimately, the

complaining party lost in court, and the tape was aired. In the

small town of Defiance, Ohio, several years ago town officials

attempted — again, unsuccessfully — to block a program criticizing

the town’s plan to privatize emergency medical services.

The two other reported cases involve questions of taste and

decency. In Columbus, Ohio, in Sept 1992 the city, which controls

transmission from the independent nonprofit center, responded to

complaints about frontal nudity in a program on gays and AIDS by

dropping the program after it had run. Upon legal consultation,

however, the city reversed its decision because the program could

not be considered pornography.

In an ongoing case in Sacramento, the incident appears part of

a larger struggle between the center, the city, and the cable

company. The cable company representative has seized upon a

viewer complaint about a videoplay, Dinosaurs, and eagerly argued

for shutting down the independently-run center to the city, which

allocates its funds. Written and produced by a young local man,

the play involved scenes of nudity and sexual aggression as part of

the author’s social critique. (The center’s attorney advised the

center the piece was not obscene.) Center director Ron Cooper

recalls that the local cable operator, long a grudging supporter of

the service, recently warned him that he would “shut you down

and that he had the approval of the multi-system owftét to take the

case to court.

EXPANDING SPEECH

Calls for banning sometimes result in reasoned accommodation

such as the guidelines devised by the aldermanic and cable boards

in Somerville, MA. Those guidelines then are given directly to

producers. Sometimes, they can act as a powerful threat. When a

program by and for teenagers, Streetwatch, ran on Columbus

Community Cable Access several years ago and frank sexual

language offended city officials enough to pull the program from

rotation briefly, the board was badly shaken. “When government

taps you on the shoulder and tries to crush it at the same time, you

take notice,” recalled center director Carl Kucharski. He notes that

several board members, whose corporations did business with the

city, felt particularly vulnerable to official discontent. The board

contemplated over a period of months ways to prescreen

programming, but could not find a workable arrangement.

Currently access center directors confront controversy by

encouraging more speech, not only by allowing all voices a hearing

but also by encouraging complainants to make use of training and

production assistance, and by explaining the philosophy of the

access center. This process appears to expand the forum for

speech, not only for producers but for viewers, who may call in.

At Malden (MA) Access TV, director Rika Walsh recalled a

program made by local youths in summer 1992 with “what was to

my taste and probably yours an excessive amount of profanity.”

After the program, the center scheduled a two hour call-in, which

was vigorously used. For Walsh, “That's what public access is all

about—creating that public space. It allows the community to speak

to issues; it’s not just about the programming itself.”

At Waycross Community TV in Forest Park, Ohio, director

Greg Vawtar pointed to response to a racial hate text message

posted on a nearby suburban system. Several of his access center’s

board members composed and aired passionate arguments against

intolerance, part of a community-wide electronic conversation.

Director Rick Hayes of the Fort Wayne, IN library system's public

access channel noted that a well-established twice-weekly program,

Coalition for Unlearning Racism, supported by the local NAACP

and Urban League among others, began as a response to the

possibility of carrying the Ku Klux Klan’s Race and Reason (which

never did run). Making the program also brought together nine

groups that hitherto had not worked jointly.

COST OF PRESCREENING

The provisions on prohibition of programming and liability for

obscene material in the 1992 Act would change the terms of PEG

access dramatically. Implementing prohibitions such as the law

now permits might involve, as the Federal Communications

Commission has suggested (U.S. FCC 1992, p. 7), certifications to

the operator. These would seem to necessitate some kind of

prescreening or pre-emptive judgment on the safety of certain kinds

of programming.

Aside from the question of mandate, in practical terms ho

would a requirement to certify and thus prescreen programming

affect the current practice of access centers? Access center

directors estimated typically that between a day a week and two

full-time staff jobs would be required to prescreen and assess

programming for the channel. (Some systems generate more than

3,500 program hours a year.) All but one estimated it would delay

programming. No directors suggested it was possible to increase

budgets in a difficult economic period, and all suggested that the

>» would be done by someone at or near the top, usually

themselves. Hap Haasch of Ann Arbor Community Access TV

soted, “The real cost is not having staff available for almost a third

f the work week.”

The cost would thus be measured in terms of lost production

assistance, training, and community outreach—in short, a crippling

‘ che service itself. One director in Fitchburg, MA, called the

ome required “devastating to our already busy schedule.”

In nine cases (Anderson Community TV, Cincinnati, OH;

Winthrop, MA; Salina, KS; Holland, MI; Turner’s Falls, MA; Ann

Arbor, MI, Grand Rapids, MI; Fort Wayne, IN; Forest Park, OH;

slenview, IL) directors said they would probably have to drop all

\ deo. some live programming would be eliminated.

“There is not enough staff to supervise call-in lines or audio,

-ontrol guests on programs or distinguish between ‘safe’ and

jangerous’ programs,” wrote the director for Winthrop (MA)

‘ommunity Access TV. Thus, he noted, programs of indisputable

-alue might be lost. For instance, on October 30, 1991, when a

‘ermble storm swept the area, the cable service provided seven

sours of live coverage, giving information about street closings,

flooding, evacuation routes and emergency shelters. Such

orogramming, he suggested, would be eliminated along with all

wher live programming under certification or prescreening

arrangements.

in Cincinnati, OH, Intercommunity Cable Regulatory

“ommussion official Patricia Havlik said, “We'd probably have to

trop the public access program—we can’t afford to prescreen, we

nave no facilities or staff for it.”

Access directors have evolved a variety of mechanisms to deal

sch first-amendment rights conflicts, which appear to have worked

‘urly well The process has renewed their commitment to public

access as a broad public forum, open even to repugnant speech.

Several access directors, when asked to estimate the cost of

raplementing some screening process, initially refused to entertain

che idea, responding with remarks like “I'd quit first,” and “I'd go

into another line of work.” The access director for Mad River TV

of Winsted, CT, wrote in answer to a question about the cost of

= Impossible to budget—we just wouldn’t do it.”

ir attitudes appear reinforced by the record of broadly diverse

programming that has a unique venue in public access.

The 1984 Act provides for viewers who reject such a forum

Lock boxes or the consumer option of blocking the channel was

— by the Act, for access as well as for commercial channels,

~~ would appear, from this survey, to be widely available. In the

_ Interviews conducted, all but one person, who did not know

said the system had the capacity. In two cases, directors

block the chy nat the company either appeared unwilling to

a — l or simply did not make public the ability to do

. written surveys, 24 reported lockboxes available,

though one said that they were not available for public access. By

pap rs ent a control over public access could, on

uae meme rectors experience, violate the central

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

TIME WARNER ENTERTAINMENT )

COMPANY, L.P.,

Plaintiff,

-against- Civ. No.

COMMISSION,

and

UNITED STATES

OF AMERICA,

__Defendants

AFFIDAVIT OF JOSEPH J. COLLINS

)

FEDERAL COMMUNICATIONS )

)

STATE OF CONNECTICUT )

) SS:

COUNTY OF FAIRFIELD )

Joseph J. Collins, being duly sworn, deposes and states as

follows:

1. I am Chairman and Chief Executive Officer of Time

Warner Cable (“TWC”), an unincorporated division of Time

Warner Entertainment Company, L.P. (“TWE”).

_ =

he Léi . t

28. Section 612 of the 1984 Cable Act (codified at 47

U.S.C. § 532) requires Cable operators to set aside a substantial

portion—up to 15 percent—of their channels for lease to unaffiliated

programmers (the “leased access provisions”). Section 612 also

provides inter alia, that “a cable operator shall not exercise any

editorial control over any video programming provided pursuant to

this section”.

29. As originally enacted, Section 638 of the 1984 Cable

Act exempted cable operators from criminal and civil liability with

respect to obscene matters that they were compelled to carry on

PEG or leased access channels. Section 10(d) of the 1992 Cable

Act amends Section 638 so as to eliminate this exemption from

criminal and civil liability if a program “involves obscene

mater ial ae

30. Thus, under Section 638 as amended, a cable operator

is exposed to criminal prosecution or civil liability as to obscene

programming created by others that the PEG and leased access

provisions require the operator to carry. Section 10(a) of **> 1992

Cable Act purports to resolve this problem with respect to leased

access programming by amending § 612(h) of the 1984 Act to

permit a cable operator to prohibit or restrict indecent matter on

leased access channels. This power does not extend to PEG

programming. As to leased access programming, it requires the

cable operator to risk civil liability to an aggrieved leased access

programmer, or criminal or civil liability under obscenity laws, if

its decisions on obscenity should later be determined to have been

incorrect. As to PEG programming the operator cannot even

attempt to protect itself from such liability.

31. Neither the 1992 Cable Act nor any other law imposes

leased access requirements upon SMATV or MMDS systems, DBS

operators or other providers of video programming.

af oa *

35. In addition, by subjecting providers of DBS service to

far less stringent PEG requirements than cable operators are

subjected to under the 1984 Cable Act, the 1992 Cable Act causes

irreparable injury to TWC’s cable systems by placing them at a

competitive disadvantage by favoring DBS speech over TWC’S.

TWC is also placed at a competitive disadvantage because neither

the 1992 Cable Act, the 1984 Cable Act, nor any other law requires

other providers of video programming, including SMATV and

MMDS systems and broadcast television stations, to provide PEG

channels.

36. The leased access provisions compel TWC to publish

the speech of others. These provisions expressly abrogate the

editorial discretion of TWC’s cable systems and force TWC to be

identified with messages it does not wish to convey.

37. The provision of Section 10(d) of the 1992 Cable Act

which repeals the immunity from criminal and civil liability with

respect to obscene programming carried on PEG and leased access

channels causes irreparable injury to TWC by subjecting it to the

risk of criminal and civil liability for programming created by

others that it does not wish to carry but is required by law to carry.

The Provisions of Section 612(h) of the Cable Act permitting TWC

to prohibit or restrict obscene programming does not alleviate such

injury in that they compel TWC to determine obscenity questions

that even Federal courts regard as exceedingly difficult, and TWC

remains exposed to criminal or civil liability if a court later

disagrees with its determination. Further, these provisions provide

no protection whatever as to obscene programming TWC may be

required to carry on PEG channels. At least one TWC cable

system has already beer. obligated to hire employees to screen

programs for obscenity, even though it did not choose to offer these

programs, and would prefer not to do so.

38. By compelling TWC to yield control of a substantial

portion of its capacity to unaffiliated programmers, the leased

access provisions irreparably injure TWC by impairing its ability to

offer programming created by others or by itself that it would

prefer to convey and that TWC believes its viewers would prefer

and by limiting its ability to offer its own programming.

Subscription Omitted

ee ee ee ——EEE

David G. Rozzelle

General Partner

November 13, 1992

Sam Behrend

Executive Director

Tucson Community Cable Corp.

124 East Broadway

Tucson, AZ 85702

Dear Sam:

Pursuant to Section 10 of the Cable Television Consumer

Protection And Competition Act of 1992, the immunity conferred

on Tucson CableVision by Section 638 of the Communications Act

for the carriage of obscene programming on public, educational and

governmental access channels will be repealed as of Deceniber 4,

1992. Accordingly, our lawyers advise us that we face potential

civil and criminal liability for any obscene material carried on

Channel 12.

Therefore, I must reluctantly request that all programming

which contains sexual, excretory or other behavior or depictions, or

language which potentially may be offensive to the citizens of

Tucson be sent to our system for screening before it is cablecast by

TCCC over our cable system. Moreover, no live programming

should be cablecast which contains such material. All such

programming should be taped and sent to us for screening as

outlined above. Failure to adhere to this request will result in legal

action by us seeking to prevent reoccurrence.

I personally believe that the present arrangement between the

City, TCCC and the system is the best way to operate a public

access channel. That view is clearly not shared by our elected

representatives and Tucson CableVision cannot permit itself to be

liable for program content which is the exclusive province of a third

party. I am hopeful you will understand the conundrum in which

we find ourselves.

I will be in Tucson the week of December 7. I would like to

meet with you during the week if you have the time.

Very truly yours

David G. Rozzelle

Chief Executive Officer,

Cable Operations

cc: Clayton Hamilton

Brad Detrick, Esq.

Alan Mutter

Wendell Owen

CUSTOMER

HANDBOOK

Jerrold IMPULSE 7000

Model DP71**, DPV72** and

DPBB73**

Addressable Converters

GFNFRAI

IMPORTANT

SAFEGUARDS

| READ INSTRUCTIONS — Al Ge enfety and

ee eee oe

2 RETAIN PSSTRUCTIONS — The mnfety and

ee ee ed

) HEED WARMINGS — Al wore oo Ge

ad 2 Oe open aye et

- <mert w

4 FOLLOW INSTRUCTIONS — Ad operating

te cmd te hee

3 CLEANING — Unging G0 vuteo prodect bom

ee eee

er of eercet feemer es mem chem tow

—

& ATTACHMENTS — Do aot ae eaecheees

et ee

? WATER AMD MOSSTURE — De on oe

oe cqepees ew eee ot comp oe

o ted wh, wet beet Richer et, @ ety

oh, i 0 wet eee, oe coer 6 ewig pel,

— te the

& ACCESSORES — De an pec Ge vite

— a tt ce seed oped Werke

@ whte The vadee protest ey of coeeey ries

omy wh 6 ct, eed, wiped, eck, oo

«9s», by Ge eneuiecess = att wah

oqpepeeen Acy qoummng Ge copheee Gould

tow ois) ere and Gon

te Re

te am

9% VENTILATION — Show and epee & Ge

promi fs wnt a cme

oe Sree of te ge eet prom)

ee erty le pee Gem er

be bhcched by phecamg Gee wuheo pre om + tent

eove be geet cee @ ore 6 eee oe bee

ogee, @ to tele eis oot @

ened

$0 POWER SOURCES — The video prota:

ned pereeed at) bom be pe of pee

oe ceed oo Ge eortey wit Foxe &

oe comet pow tcl pores comgery for

le Re ee

it GROUND O8 POLARIZATION — The

el oo oe

wits Gee Ge che) The pg o@ & ee

pews cute: caty cae wey The 6 2 ry bee

etter Oe ee ed

you cts extn De an Gee Ge mry

em 2 Os pried cg

ALTERMATE WARPGPCUS — The equipeeee

oy be equipped web s } wer gounting eye

0 pg bevy 6 Ghd (peeetig) pe The

pg ee Ge etn cos ew ee

satey pepe of Ge pounding ype ping .

12 POWERCORD PROTECTION — Poce

opety cords headé be comeed @ Get Gey oe ot

an «othe oo pete oe

— = eee Ge pe we ee

ome where Gry cas bom Oe epphees

fume rot

nase. E OF Antennas GROUNDED

mec - aroma EL ECTECA CODE

4) OUTDOOR ANTENNA GROUNDING

to the expeapment tbe sere the senenen os cate vysrm

6 grounded 1 = to provade some proaactum agaurs

tage merges ond be ap Gata chery wee

810 of the Metonel Ehecwicel Code, ANSI/NFPA

Mo 70 1904 prowates mformeuce wah ragrc =

of te ead @ were wo oe oor

14 LIGHTNING «= Far added prenecuon kx the

teh emenended sad emuned for tong perch of wom

engieg ¢ bom the wall cutie: sad dacommect Oe

seacene ot cobte spare The wd perwest domagr

we: the vedew prewhnt dur wo kghemeng and power

—

1S POWLRIINES An cumake entenns space

sient) me be haseed oe the vasety of overhead

power bee ot where « coe (8 to ech goers

be = ots When antalieng o6 cwtumir ememne

Seem cxtecow care tundd be shen to herp bom

ean heng tn perwer hemes of CCU a8 Cmte!

wah them may be lott

te OVERLOAINNG) De at overhead of

erat of Gee ww towed het

17 OBJECT AND LIQUID ENTRY - New

on hawt cnt pare thet combs mat os hee or che

vient Mewer spell ingued of omy bend on the wutew

proat

: to —

me) pee pe te dangers wage o othe

port

19 DAMAGE REQUIRING SERVICE —

epteg he cquepeeret (num the well cuthe: sed

veler vervaing we quetfed service pervomac!

er he hang Comte

a Whee the power-supply cond o pig &

mage

bh tageed hes been agile, oo otgects Reve tol

~ te Ong

——

Owe Cgwepene me ur) met uperate eurmell)

idiewtnn Ge ; Ade

apr mg are Ve os 88 ler eT oi

owe hatter Crmmands may reve dom

and will dice requee cxtemive wort b)

qectched techn ae Ww reve the equepe.

wo @) eure uprieee

(he gegen bes been dropped oF the cote

nm tore Gomeged

= te ogee pen Uneet usd etme

-———_———

Sleep Timer Feature .....---sseereerrecrerseeeee 8

Remote Control and Vol

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.