# Joint Appendix — Denver Area Ed. Telecommunications Consortium, Inc. v. FCC > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0634%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 1996 - **Citation:** 518 U.S. 727 ## 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- ES 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- I 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 4 74 i 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 ii 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 iV 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 Vv 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 vi 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 2 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. 3 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 5 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 6 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 7 “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. 9 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 10 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). ll 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. 12 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 13 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). 14 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 15 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 16 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). 17 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). 18 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 19 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 20 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. 21 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. 22 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 23 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 24 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 25 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. 26 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). 27 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 28 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). 29 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”). 30 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) 31 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 17 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 32 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). a 33 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 34 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. 35 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 36 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. 37 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 38 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 ee 39 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 2 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) 40 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 — 41 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 : 3 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. 42 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. 43 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 aa 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). 45 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). 46 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. 47 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 48 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. 49 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 50 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 51 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." uM 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. an : : ee , 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 55 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 © 1992 by Oxford University Press 56 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 57 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 58 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. 59 — 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0634%3A05. Public record. Not legal advice.